June 2, 1994
LARRY JEROME GREEN, APPELLANT
MARYLEAH GREEN, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Judith E. Retchin, Trial Judge)
Before Terry, Farrell, and King, Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: Appellant Larry Jerome Green ("the husband") appeals from an adjudication of contempt in the Family Division, Domestic Relations Branch, for violating a civil protective order ("CPO") requiring him to stay away from appellee Maryleah Green ("the wife") and their children. The husband contends his due process rights were violated because the wife's attorneys acted as the prosecuting attorneys during the intrafamily contempt proceedings and because the trial Judge denied his request for witness statements pursuant to the Jencks Act. *fn1 We conclude that the intrafamily contempt proceeding against the husband was properly conducted and that the trial Judge correctly ruled that the Jencks Act does not apply to witness statements under the circumstances presented here. Accordingly, we affirm.
The wife first petitioned for a civil protection order on February 26, 1991, alleging that when she was eight months pregnant the husband hit her head against a brick wall several times, threw her down a flight of stairs, and kicked her in and around the abdomen while threatening to kill her and the unborn child. During this incident, the husband also stabbed the wife's sister, who had attempted to intervene in defense of the wife. On the same day, the trial court entered a temporary CPO, ordering that the husband not "abuse, assault, molest, touch, harass, threaten or speak to[,] telephone, or attempt to ascertain the telephone number of the [wife and the couple's two children]." The husband was also ordered to stay away from the family, the marital home, and the children's school. On March 7, 1991, the trial court entered a twelve-month CPO, consented to by the parties, imposing conditions essentially the same as those included in the temporary CPO. *fn2
On March 6, 1992, the wife sought an extension of the March 7, 1991, CPO. *fn3 The trial court granted that request on April 22, 1992, extending the CPO for an additional twelve months. After the husband appeared at the wife's residence and threatened her in August of that year, the wife moved, the wife moved, through counsel, to adjudicate the husband in contempt for violation of the April 22, 1992, CPO.
On October 16, 1992, a hearing on the contempt motion was held. After the wife's direct examination, counsel for the husband requested both a continuance and the production of so-called Jencks material, consisting of statements the wife made to District of Columbia Metropolitan Police officers and a message the wife had left on her attorney's answering machine. The trial Judge ruled:
Later in the proceeding, during the course of a colloquy among the trial Judge and counsel concerning the propriety of a continuance, the husband's counsel acknowledged that she "realized now that doesn't apply." Thereafter, the trial Judge granted a continuance in order for the husband's counsel to submit interrogatories to the wife and to subpoena four police officers.
On the continued date, the husband's motion for reconsideration of the court's findings with respect to the Jencks issue was denied. The husband also moved to disqualify the wife's counsel from "prosecuting criminal contempt." The trial Judge found that:
the [wife's] counsel are not prosecutors but merely counsel assisting the . . . . I note that in most contempt adjudications before the Court that I have presided over, most the petitioners do not have counsel, that they are before the Court seeking the assistance of the Court to effect the orders that have been previously given by the Court and I believe the language of our Court of Appeals in the [Cloutterbuck v. Cloutterbuck, 556 A.2d 1082 (D.C. 1989)] decision drives home the importance of making . . . access to this Court available to pro se litigants. . . . So I don't believe that the is a prosecutor in the first instance and the [Super. Ct. Intra-Fam.] Rule 12C provides that "the Court may request that Corporation Counsel represent the petitioner". The corollary to that must be that the petitioner need not have counsel and in practice that's what usually happens, that the petitioner does not have counsel, so it is this Court's opinion that the petitioner's counsel are here to assist the petitioner and are not prosecutors and the Court is not going to disqualify the [wife's] counsel from participating in this proceeding.
Thereafter, the trial Judge permitted the husband's counsel to voir dire the wife in order to determine which police officers might have taken statements from her regarding the August 22, 1992, incident. Following that examination, the trial Judge granted a further continuance in order for the husband's counsel to subpoena the police officers with whom the wife had spoken. Counsel, however, was only able to serve one of the officers, who appeared and testified at the contempt proceedings held two days later. On October 23, 1992, the trial Judge adjudicated the husband in contempt for violating the terms of the April 22, 1992, CPO and sentenced him to thirty-days incarceration. This appeal followed. *fn4
The husband contends that he was denied a "fundamental" constitutional right to a public prosecutor when the trial Judge permitted the wife's counsel to participate in the intrafamily contempt proceedings.
D.C. Code § 16-1003 (a) (1989) provides:
Upon referral by the United States attorney, or upon application of any person or agency for a civil protection order with respect to an intrafamily offense committed or threatened, the Corporation Counsel may file a petition for civil protection in the Family Division. In the alternative to referral to the Corporation Counsel, a complainant on his or her own initiative may file a petition for civil protection in the Family Division.
Pursuant to the Intrafamily Proceedings Rules, a complainant may enforce a CPO by filing a motion for contempt and proceeding through counsel, or pro se, with a contempt hearing in the Family Division. See Super. Ct. Intra-Fam. R. 7 (c) and 12; see also D.C. Code § 16-1005 (f) (1989) (violation of a CPO is punishable as contempt).
In support of his argument, the husband relies on Young v. United States ex rel Vuitton et Fils, S. A., 481 U.S. 787, 809 (1987), where the Supreme Court held, in the exercise of its supervisory authority, that "counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." (Footnote omitted.) We conclude, even assuming we are bound to follow Young, that it simply does not apply to the circumstances presented by this appeal. *fn5 The Young Court was reviewing the prosecution of a criminal contempt, pursuant to FED. R. CRIM. P. 42 (b), by private counsel for the plaintiff who had been appointed by the trial court for that purpose. *fn6 See id. at 793-802. The criminal contempt proceedings in Young were the culmination of an elaborate "sting" operation, also conducted by the plaintiff's counsel, investigating the defendants' alleged violation of an injunction prohibiting them from manufacturing counterfeit leather goods. Id. at 791-92. In announcing its rule, the Young Court was primarily concerned with the financial and tactical conflicts of interest presented by using plaintiff's counsel to prosecute the criminal contempt charges. Id. at 805-06.
In contrast, the instant criminal contempt arose out of an intrafamily proceeding, conducted pursuant to local statutes and rules designed by the Council of the District of Columbia ("the Council") to expedite the application and, if necessary, the enforcement of CPOs in cases involving domestic violence. See generally D.C. Code § 16-1003 (c), -1005(f); see also Super. Ct. Intra-Fam. R. 7 (c) and 12. Those provisions reflect a determination by the Council that the beneficiary of a CPO should be permitted to enforce that order through an intrafamily contempt proceeding. *fn7 Further, this case does not present the potential for discovery abuses and financial conflicts of interest the Young Court addressed because discovery under the Intrafamily Proceedings Rules is limited to the particular circumstances of the contumacious behavior.
We agree with Judge Geoffrey M. Alprin's observation in Castellanos v. Novoa, 117 Daily Wash. L. Rptr. 1189, 1194 (D.C. Super. Ct. April 27, 1989), which involved circumstances virtually identical to those presented in the instant appeal:
In most intrafamily matters which have reached the contempt stage, petitioner has been previously determined to be a victim of domestic violence and now seeks the court's assistance, through the statutorily authorized criminal contempt process, to protect her from respondent because he allegedly failed to comply with the provisions of the court's previous order and abused her again. This court is convinced that the Young Court could not possibly have envisioned the application of its rather sweeping language dealing with problems associated with private prosecution of contempt under the federal rules to the instant and most similar cases.
For all the reasons stated, therefore, we conclude that Young is inapplicable to the circumstances presented here.
The husband also contends that there is a Fifth Amendment due process right to a public prosecutor in a contempt proceeding of the type presented here. We know of no authority recognizing such a right, and the husband has cited none to us. *fn8 Indeed, the Supreme Court has recognized that the full panoply of protections normally due a criminal defendant are not required when a lesser charge is involved. See, e.g., Codispoti v. Pennsylvania, 418 U.S. 506, 41 L. Ed. 2d 912, 94 S. Ct. 2687 (1974) (right to a jury trial in a criminal contempt is not required if penalty imposed is six months or less); Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) (same); see also Cloutterbuck, supra, 556 A.2d at 1084-87 (husband not entitled to appointed counsel on motion for a civil protection order); In re Wiggins, 359 A.2d 579, 580 (D.C. 1976) ("A criminal contempt proceeding is not a criminal prosecution, and consequently not all procedures required in a criminal trial are necessary in a hearing on a charge of contempt.") (citations and footnote omitted). Although the Young Court rejected the appointment by the trial court of an interested private party as counsel to prosecute a criminal contempt, it did not create a constitutional right *fn9 to a public prosecutor in a contempt proceeding. Moreover, the procedures mandated by the Intrafamily Offenses Act and the Intrafamily Proceedings Rules *fn10 provide adequate protections to alleged contemnors. Accordingly, we hold that there is no constitutional right to a public prosecutor in an intrafamily contempt proceeding.
The husband also contends his due process rights were violated because he was denied access to statements the wife made to police officers, and a message the wife had recorded on her attorney's telephone answering machine, which he claims were discoverable pursuant to Super. Ct. Crim. R. 26.2. *fn11 The trial Judge rejected that contention, ruling that Super. Ct. Crim. R. 26.2 is not applicable to intrafamily contempt proceedings and private attorneys.
Super. Ct. Intra-Fam. R. 1 provides that "these rules govern in all proceedings regarding intrafamily offenses as defined in Title 16, Section 1001 et seq. of the D.C. Code," and incorporates by reference numerous rules of civil procedure. Thus, by the terms of the Intrafamily Proceedings Rules, Super. Ct. Crim. R. 26.2 does not apply. Presumably, the rule-makers could have provided otherwise; however, they chose an alternative procedure for obtaining discovery. For example, under Super. Ct. Intra-Fam. R. 8(a) "requests for reports filed with the Metropolitan Police Department may be made directly to the department." Any statements the wife made to police officers with respect to the actions underlying the contempt adjudication thus would have been discoverable by filing a request for any written reports. See D.C. Code § 16-1032 (1993 Supp.) ("Any law enforcement officer who investigates an intrafamily offense shall file a written report of the incident with the District of Columbia Metropolitan Police force ('Police force'), including the law enforcement officer's Disposition of the case. The Police force shall maintain the written report."). Here, no such request for the wife's statements was ever made of the Department, and we are unwilling to conclude that the husband was denied discovery he might have been entitled to receive when no request was made. See United States v. Agurs, 427 U.S. 97, 114, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976) (defendant was not deprived of a fair trial by prosecutor's failure to turn over record where it appeared that record was not requested by defense counsel); Mangrum v. United States, 418 A.2d 1071, 1077 (D.C.) (same), cert. denied, 449 U.S. 997, 66 L. Ed. 2d 296, 101 S. Ct. 539 (1980).
In addition, by its own terms, Super. Ct. Crim. R. 26.2 applies only to the "prosecutor," not private attorneys or pro se plaintiffs. The commentary to the rule observes that "prosecutor" means either the United States Attorney or Corporation Counsel. Thus, Super. Ct. Crim. R. 26.2 would not apply, in any event, where the complainant is proceeding pro se or is represented by private counsel. Moreover, we agree with the trial Judge that the tape recorded message left on the wife's attorney's answering machine is protected by the attorney-client privilege. See Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 551 (D.C. 1981) (confidential disclosure of information by client to attorney in order to obtain legal advise is privileged from disclosure).
Finally, it is well established that discovery allowed pursuant to the Jencks Act has no constitutional dimension. See, e.g., United States v. Augenblick, 393 U.S. 348, 356, 21 L. Ed. 2d 537, 89 S. Ct. 528 (1969); Palermo v. United States, 360 U.S. 343, 345, 3 L. Ed. 2d 1287, 79 S. Ct. 1217 (1959); see also 2 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2d § 436, at 579 (1982) (the rules announced in Jencks v. United States, 353 U.S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007 (1957), are based on the Supreme Court's standards for administering criminal cases in federal courts). Thus, even if Super. Ct. Crim. R. 26.2 applied to intrafamily proceedings, denial of evidence sought pursuant to that rule cannot not serve as a basis for a claimed constitutional violation. In sum, we conclude that the trial Judge did not err in ruling that Super. Ct. Crim. R. 26.2 was inapplicable to an intrafamily contempt proceeding.