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11/14/90 STEPHEN A. SMITH v. UNITED STATES

November 14, 1990

STEPHEN A. SMITH, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Colleen Kollar-Kotelly, Trial Judge

Rogers, Chief Judge. Ferren and Belson, Associate Judges.

The opinion of the court was delivered by: Rogers

Appellant Stephen A. Smith appeals his conviction by a jury of failure to appear in court, D.C. Code § 23-1327 (1989 Repl.), on the grounds that there was insufficient evidence and that the trial Judge erred in admitting irrelevant evidence of the general practice of courtroom clerks. Since the written notice directed appellant to the wrong courtroom, the Judge having changed courtrooms since the notice was issued, the government had to prove that appellant received timely notice of the courtroom in which he was to appear in order to meet its burden of proof that appellant had willfully failed to appear "as required." Accordingly, we hold, consistent with the principles embodied in Federal Rule of Evidence 406, that evidence about the general practice of courtroom clerks when Judges change courtrooms is properly admissible as relevant to the issue of whether appellant willfully failed to appear. We further hold, however, that for the evidence to be probative, a foundation must be established for the witness' basis of knowledge of the general practice, and because of the absence of such a foundation, the evidence was improperly admitted.

The government presented two witnesses at trial. A police officer testified that appellant was arrested on May 20, 1988, for carrying a dangerous weapon. A Deputy Courtroom Clerk, Janice Allen, who was assigned to the Criminal Division of the Superior Court, testified that appellant appeared in court before Judge Burnett on June 29, 1988, and a notice to return form dated June 29, 1988, bore appellant's name and signature, and the signature of another courtroom clerk. The form stated that appellant's status hearing in Case No. M5903-88 would be before Judge Queen, and that he was to return to appear before Judge Queen in misdemeanor court, in courtroom 19 on the second level of the District of Columbia Superior Court at 500 Indiana Avenue, N.W., on July 18. Other entries in the trial jacket indicated that appellant did not appear before Judge Queen for the July 18, 1988, status hearing, and that a bench warrant was issued that day.

Allen also testified that on July 18, 1988, Judge Queen was presiding in courtroom 25, and not in courtroom 19, and had issued a bench warrant for appellant from courtroom 25. Allen, the clerk for courtroom 25 on that date, admitted that she did not know which Judge was sitting in courtroom 19 on July 18 or whether appellant had appeared in courtroom 19 on July 18. Nor had she personally gone to look for appellant in courtroom 19 on July 18.

Over defense objection, Allen testified on redirect examination that when a Judge changes courtrooms it is the general practice of courtroom clerks to post "a note or a sign . . . on the front of the courtroom" indicating the new courtroom in which the Judge is sitting. *fn1 In response to a question about her practice when she sees a person whose case has not been called sitting in the courtroom, Allen testified, also over defense objection, that "we generally asked them why are they here or if we can help them, do they have a case on the calendar." Allen further testified, in response to a question about what the general practice of the courtroom clerk is for checking up on people if there has been a change in the courtroom, that "normally what happens is that the defense counsel or the clerk who is in the courtroom that has been changed will call and either say we have extra people here, we're going to direct them to your courtroom, or the defense counsel himself will go up and see if he can find his client." On recross-examination, Allen conceded that she did not know whether these practices were employed in appellant's case, or whether a sign had been posted on the door of courtroom 19 on July 18, 1988.

To rebut Allen's testimony about the "general practice," appellant called Louis Kleiman, an attorney who had practiced in the Superior Court beginning in 1972. He testified that 95 percent of his practice involved criminal cases and that he was generally in court five days a week. To locate Judges he relied on the daily schedule listing Judges' courtroom assignments distributed by the information center. Commenting that "it's not uncommon to have difficulties" locating Judges, Kleiman testified that it was his experience that "sometimes there's a note posted on the door that the Judge moved to a different courtroom, but sometimes there's not. So that sometimes it's just trial and error." Indeed, he testified that more often than not there is not a notice on the courtroom door indicating the Judge's new courtroom. *fn2 He also testified that, because of his heavy caseload, it was not his practice to look for his client to notify the client of the new courtroom. On cross-examination he stated that he was unaware of any court rule that required defendants to contact the Pretrial Services Agency or the courtroom where they are supposed to appear if they cannot appear in court. A certified copy of a judicial assignment sheet dated July 18, 1988, which, Kleiman and an employee of the information center identified, indicated that Judge Queen was assigned to courtroom 22 (not 25) on July 18 through 22, 1988. Kleiman, who did not know appellant, had not seen him in courtroom 19 or courtroom 22 on July 18, 1988.

Appellant testified that on June 29, he was told by a courtroom clerk of the penalties of failing to appear and he signed a notice-to-return-to-court form for July 8. He claimed that on July 18, 1988, he had reported to courtroom 19 at 8:30 a.m., and had remained there until late morning. He saw neither a sign nor a note on the courtroom 15 door directing people to a different courtroom. He did not ask the courtroom 19 clerk whether his case was scheduled, but at midday went to the Information Desk in the lobby of the courthouse to inquire where he was supposed to be and was told to go to courtroom 22. He did, and he remained there until 5:00 p.m.. Appellant admitted that he had not called the Pretrial Services Agency to inform it that he could not find Judge Queen, nor did he show the clerk in either courtrooms 19 or 22 his notice to appear slip. He claimed, however, that he had called his attorney the next day. Appellant was impeached with four prior convictions *fn3 and admitted that he had previously been in the District of Columbia Courthouse on five occasions in connection with four criminal cases.

II

To convict of willful failure to appear, D.C. Code § 23-1327 (a), the government must prove beyond a reasonable doubt that the defendant (1) was released pending trial or sentencing, (2) was required to appear in court on a specified date or at a specified time, and (3) failed to appear, and (4) that the defendant's failure was willful. Trice v. United States, 525 A.2d 176, 179 (D.C. 1987); Raymond v. United States, 396 A.2d 975, 976 (D.C. 1979). Appellant contends that there was insufficient evidence he had proper notice to appear and that his failure to appear was willful. *fn4 Specifically, he maintains that there was no evidence he did not appear in courtroom 19 "as required", nor was there evidence that there was a sign on the door of courtroom 19 directing persons to courtroom 25. *fn5 The government maintains that it presented a prima facie case when it demonstrated that appellant was released on his own recognizance after signing a notice-to-return slip and failed to appear in court on July 18, 1988. It relies on Trice, supra, 525 A.2d at 181, where the court stated that "any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful" (quoting D.C. Code § 23-1327 (b)).

This case is not the usual bail jumping case since, as the court observed in Trice, in most bail jumping cases the government's proof of the first three elements of the government's evidence is not contested. Trice, supra at 179. Nevertheless, it is beyond dispute that the government bears the burden of proving that the defendant willfully failed to appear after receiving notice to do so. Id. Indeed, the statute precisely requires the government to prove chat the defendant "willfully failed to appear before any court or judicial officer as required. . . ." D.C. Code § 23-1327 (a) (emphasis added). Here, the prosecution was based on appellant's failure to appear for a status hearing on July 18, 1988, before Judge Queen, who was then sitting in courtroom 25. The notice-to-return form instructed appellant to appear in courtroom 19. Our previous cases have not considered the nature of the notice that is required when the notice-to-return slip given to the defendant misstates the courtroom in which the named Judge is actually presiding on the return date. However, in Raymond, supra, the court rejected a due process challenge to he statute, explaining that the statute creates merely a permissible, and not a mandatory, inference of willfulness based on the defendant's failure to appear "at a certain place at a particular time and date." 396 A.2d at 978. Further, in Trice, the court held that willfulness must be shown by evidence that the defendant's failure to appear was knowing, intentional and deliberate rather than inadvertent or accidental. 525 A.2d at 181. It logically follows that the government must prove that the defendant received timely notice of where he was required to be. See Mullane v. Central Hanover Trust Co. 339 U.S. 306, 313-14, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (where liberty is at stake, due process requires notice and opportunity appropriate to the nature of the case; "notice must of such nature as reasonably to convey the required information"). See also 2 ROTUNDA, NOWAK & YOUNG, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 17.8, at 262 (1986) ("the form of the notice and the procedure for delivery or the posting of the notice must be reasonably designed to insure that the interested parties in fact will learn of the proposed adjudicative action"). *fn6

Accordingly, to convict appellant of willful failure to appear before Judge Queen on July 18, 1988, the government had the burden to show that appellant received timely notice to return to a certain place at a certain time, here notice that was sufficient to inform him that Judge Queen would be hearing his case in courtroom 25. While a defendant undoubtedly has an obligation to act diligently with respect to returning as required for a further court proceeding, the notice-to-return form that appellant received did not, of itself, provide appellant with sufficiently accurate or complete notice of the location of the next scheduled proceeding to guide his efforts to reappear. *fn7 In light of the change in location of the hearing, we disagree with the government's position that it presented a prima facie case when it demonstrated that appellant had been released on his own recognizance after signing the particular notice-to-return slip in question. Rather, in order to make out a prima facie showing of a willful failure to appear, the government had to present, in addition, either direct evidence that appellant was personally informed of where his case was to be called, or comparable circumstantial evidence, e.g., evidence of what occurred in or around Courtroom 19 on July 18, 1988, to notify persons where Judge Queen (or some other Judge) would hold the scheduled hearing. The question is whether the government may meet its burden by presenting evidence of the general practice of the courtroom clerks regarding notice when Judges change courtrooms.

A.

Under Federal Rule of Evidence 406, evidence of the routine practices of an organization, whether corroborated or not and regardless of the availability of eyewitnesses, is admissible to show that the conduct of the organization on a particular occasion was in conformity with the routine practice. *fn8 In the context of Rule 406, the practice of an organization is behavior on the part of a group which is equivalent to habit of a person, that is, an organization's practice of responding to a particular kind of situation with a particular kind of conduct. See Notes of Advisory Committee on Proposed Rules (Notes of Advisory Committee), citing "an oft-quoted paragraph" in McCORMICK ON EVIDENCE § 162, at 340 (Cleary ed. 1984). *fn9 The heightened probativity of organizational practice evidence is based on the "assumption that individuals within that organization have a tendency or propensity to conform to the routine practice of the organization." 1A WIGMORE, EVIDENCE ยง 93 at 1624 n.8 (Tillers Rev. 1983). The rationale of the rule thus appears to adopt McCormick's characterization that the doing of habitual acts becomes "semi-automatic." See Notes of Advisory ...


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