Poteat v. King , 487 A.2d 215 ( 1984 )

TERRY, Associate Judge:

Petitioner seeks a writ of mandamus directing respondent, a hearing commissioner of the Superior Court, to reopen his preliminary hearing in order to allow defense counsel to cross-examine a police detective and to call as a defense witness petitioner’s former girl friend, whom counsel believes to be the informant who supplied information to the police leading to petitioner’s arrest. We agree that the preliminary hearing must be reopened for these two purposes, and therefore we vacate respondent’s finding of probable cause. We go no further, however, because we believe that respondent will grant the relief requested without the necessity of our actually issuing the writ.

At the outset we note that mandamus is an appropriate remedy for correction of errors in a preliminary hearing. E.g., Staley v. Hannon, 402 A.2d 814 (D.C.1979); Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965). The availability of mandamus for this purpose has been established since the Blue case was decided twenty years ago and is no longer open to question.

Defense counsel sought, by cross-examination of Detective Manjoras, to establish that the informant was unreliable, but the Commissioner barred that line of questioning. This was error. Petitioner is entitled to have his preliminary hearing reopened in order to allow proper cross-examination designed to demonstrate the unreliability of the informant. Staley v. Hannon, supra, 402 A.2d at 816.

Defense counsel also sought to call as a witness a woman named Barbara Hoffman. Counsel’s proffer indicated that Hoffman was an eyewitness to the murder with which petitioner was charged and was, in all likelihood, the informant named in Detective Manjoras’ affidavit. The proffer included several details which, if proven by testimony, would have at least cast a cloud on Hoffman’s reliability as an informant. When the government objected, the Commissioner refused to allow counsel to call Hoffman to the stand. He then found probable cause and ordered petitioner held for the action of the grand jury.

The Commissioner’s refusal to allow Hoffman to testify was erroneous for two reasons. First, it is settled beyond all doubt that witnesses are not the property of either party in a criminal case (indeed, in any case). Gregory v. United States, 125 U.S.App.D.C. 140, 143, 369 F.2d 185, 188 (1966). The fact that Barbara Hoffman might have been a possible government witness, either at the preliminary hearing or at trial, was not a valid reason for keeping her off the stand. Second, petitioner had a right to call any witness whose testimony was relevant to the issue of probable cause. Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967); Washington v. Clemmer, 119 U.S.App.D.C. 216, 219, 339 F.2d 715, 718 (1964); see Coleman v. Burnett, 155 U.S.App.D.C. 302, 320, 477 F.2d 1187, 1205 (1973).¹ Hoffman was plainly such a witness.²

Nothing in In re R.D.S., 359 A.2d 136 (D.C.1976), is inconsistent with our decision today. On the contrary, we conclude that defense counsel’s proffer in this case was “a meaningful proffer” as that term is used in R.D.S. See id. at 139-140.

We therefore conclude that petitioner’s preliminary hearing must be reopened for further testimony.³ Accordingly, we vacate the Commissioner’s finding of probable cause and his order holding petitioner for the action of the grand jury. We also modify this court’s stay of proceedings before the grand jury, entered September 27, 1984, as requested by the government. We refrain from issuing the writ of mandamus because we are confident that respondent, after reading this opinion, will afford petitioner the relief he requests. See, e.g., Staley v. Hannon, supra, 402 A.2d at 816; United States v. Moultrie, 340 A.2d 828, 832 (D.C.1975); Ross v. Sirica, supra, 127 U.S.App.D.C. at 14, 380 F.2d at 561.

It is therefore ORDERED that respondent’s order of September 24, 1984, holding petitioner for the action of the grand jury, and the finding of probable cause on which that order was based, are hereby vacated.

It is FURTHER ORDERED that this court's order of September 27, 1984, staying proceedings before the grand jury, is amended to provide that the grand jury is not prohibited from hearing testimony and receiving evidence, but it is prohibited from returning an indictment until after the reopened preliminary hearing is completed.

It is FURTHER ORDERED that the petition for a writ of mandamus is denied without prejudice.

Before PRYOR, Chief Judge, and NE-BEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, and ROGERS, Associate Judges.

ORDER

On consideration of the petition of the United States for rehearing or rehearing en banc, the papers filed by the District of Columbia and the Public Defender Service as amici curiae, and the responses filed with respect thereto, it is

ORDERED by the division that the petition for rehearing is denied.

It appearing that a majority of the judges of this court have voted to deny the petition for rehearing en banc, it is

ORDERED that the petition of the United States for rehearing en banc is denied.

1 . Ross and Washington are binding on us under M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971). Coleman is not, but it is not inconsistent with Ross and Washington, and we find it persuasive.

2 . We reject any suggestion that counsel was attempting to use the preliminary hearing for the purpose of discovering the identity of the informant. It is clear from the proffer that counsel already knew Hoffman’s identity and relationship with petitioner; indeed, she came to court under a defense subpoena. The government’s claim that petitioner was using the preliminary hearing as a discovery device is, on this record, nothing more than a red herring.

3 . We caution, however, that when Barbara Hoffman testifies at the reopened hearing, her testimony must be limited to the issue of probable cause. The hearing should not be used as a means of preserving her testimony on other matters. See Super.Ct.Crim.R. 5(d)(1), first sentence.