Appeal from the Superior Court of the District of Columbia. (Hon. George W. Mitchell, Trial Judge).
Before Schwelb and Farrell, Associate Judges, and Greene, Associate Judge of the Superior Court of the District of Columbia.*
The opinion of the court was delivered by: Greene
GREENE, Associate Judge of the Superior Court of the District of Columbia: On June 10, 1994 the District of Columbia filed a petition in the Family Division of the Superior Court charging appellant, W.T.L., with assault with intent to kill while armed (D.C. Code §§ 22-501 (1989 Supp.), -3202 (1994 Supp.)), malicious disfigurement while armed (D.C. Code §§ 22-506 (1989 Supp.), -3202 (1994 Supp.)), assault with a dangerous weapon (D.C. Code § 22-502 (1989 Supp.)), threats (D.C. Code § 22-507 (1989 Supp.)) and obstruction of Justice (D.C. Code § 22-722 (a)(5) (1989 Supp.)). Following an initial hearing, probable cause was found, appellant was detained, and his case was continued until July 7, 1994 for a status hearing. Meanwhile, on July 5, 1994, the government filed a motion to transfer appellant to the Criminal Division for trial pursuant to D.C. Code § 16-2307 (1994 Supp.). After a transfer hearing during portions of nine days from October 3 to October 18, 1994, Judge Mitchell granted the government's transfer request but stayed the transfer order for 30 days. A notice of appeal was filed on October 20, 1994. On October 28, 1994, this court granted a joint motion to expedite the appeal and stay the transfer order pending appeal.
Before this court appellant asserts that the transfer statute, D.C. Code § 16-2307, is unconstitutional, both on its face and as applied to him. He argues that it creates an irrebuttable presumption of guilt and, consequently, violates his due process right to challenge the evidence against him. Additionally, appellant alleges that the hearing Judge violated the Code of Judicial Conduct by initiating an ex parte communication with another juvenile concerning appellant during an unrelated court proceeding involving the other juvenile. Neither appellant nor his counsel were present at that proceeding. Consequently, appellant contends that this case should be remanded for a new transfer hearing before a different Judge.
For the reasons which follow, we reject appellant's contentions and affirm the transfer order.
Appellant, his mother, his counsel and a social worker were present at appellant's initial hearing on June 10, 1994. Officer LaVerne Battle of the Metropolitan Police Department testified at the hearing that two days earlier appellant had gone to the home of Cathy Larker, an eyewitness who had testified against appellant in his trial for first degree murder in 1990 when appellant was thirteen years old. *fn1 According to Officer Battle, appellant approached Ms. Larker from behind with a 40-ounce bottle in his hand and "broke it across her head." When she turned to face appellant, he repeatedly struck her in the face and mouth with the broken bottle, causing cuts on her face requiring over 100 stitches. After the victim fell to the ground, appellant kicked her several times in her feet and legs. During the attack, appellant told Ms. Larker that he would continue to harass and assault her "until she was dead." Officer Battle testified that the following day Ms. Larker learned from another person that appellant told that person he was going to kill Ms. Larker and had not done so during the initial assault because children were present. When appellant was arrested and told by Officer Battle only that he was wanted in connection with an assault, he stated to the officer that he "didn't cut the lady." Shortly after his arrest appellant was identified by Ms. Larker as her assailant.
During the first five days of appellant's transfer hearing between October 3 and October 12, 1994, the trial Judge heard extensive testimony reflecting, inter alia, that appellant had responded positively to several residential placements he had experienced since his murder adjudication in 1990. This testimony indicated that appellant not only had matured and apparently had learned to deal with his own anger and other problems he had confronted after growing up in a dysfunctional family environment, *fn2 but had been helpful in assisting and counseling his peers in several residential facilities to overcome similar problems.
During a recess in appellant's transfer hearing on October 13, 1994, the Judge began a Disposition hearing in an unrelated case of P.L., a sixteen-year-old juvenile charged with murder who said he aspired to be a hired killer and who, like W.T.L., had previously been convicted of murder and had experienced a difficult childhood. Unlike W.T.L., however, P.L. never had been in a residential placement. In the middle of P.L.'s hearing during a colloquy with him about the prospect of a residential placement and the need for P.L. to change his "approach to people" and to "grow up," the hearing Judge remarked to P.L. on the record, "I would like to see you . . . fool them all. You made a big mistake in your life -- the I.Q. say that you a little sense." Then, referring to W.T.L., the Judge continued:
I'd like to see you -- I'd like to see you come back here as clean cut as this boy on this transfer case, change your whole appearance and start thinking about yourself You understand that?
When P.L. responded "yeah," the Judge inquired whether P.L. knew appellant, apparently hoping to reinforce in P.L.'s mind the positive example of appellant:
THE COURT: Do you know who -- what's that boy's name?
THE RESPONDENT: W[.] L[.].
THE COURT: You know him? You see how clean cut he is?
Learning that P.L. was acquainted with appellant, the Judge inquired further:
THE COURT: What do you think about him? What do you think about him? Is he -- is he faking me?
[P.L.]: Nah. He be programming.
THE COURT: He's all right?
[P.L.]: He be programming.
[P.L.]: He be programming.
THE COURT: He be programming?
THE COURT: What does that mean? Tell me about that[.] He know how to talk to Judges and things like that. Is that what you mean?
[P.L.]: He doing -- he doing the right thing.
THE COURT: Does he try to help you? He talked to you?
THE COURT: What has he said to you that's worth anything?
[P.L.]: He be telling -- like he be -- he be working alot around grounds. He be -- like the O. D. pulled him for landscaping here. He had asked me do I want to help him and stuff like that. To keep me out of trouble or whatever.
THE COURT: And you go with him?