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Green v. Green

June 2, 1994

LARRY JEROME GREEN, APPELLANT
v.
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.

I.

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

II.

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 ...


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