Appeal from the Superior Court of the District of Columbia Criminal Division (M-9955-97) (Hon. Eric T. Washington, Trial Judge)
Before Terry, Ruiz and Glickman, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Anthony N. Robinson was convicted of one count of threatening another person in violation of D.C. Code § 22-507 (1996) based on a May 22, 1997, telephone conversation that appellant had with his former girlfriend, Tracey Marie Adams, while he was incarcerated at the Lorton Correctional Complex.
On appeal, Robinson contends that the government had an obligation to preserve and produce Lorton's recording of the telephone conversation, and that its failure to do so constituted a due process violation under Brady v. Maryland, 373 U.S. 83 (1963), violated the Jencks Act, 18 U.S.C. § 3500, and breached the discovery requirements of Superior Court Criminal Rule 16. He argues that the trial court, which found that the government had violated its Jencks obligation, should have dismissed the information or, in the alternative, imposed a more severe sanction on the government than the one it chose. We agree with the trial court's determination that there was a Jencks violation. Given the trial court's choice of sanction, on the facts of record we are constrained to reverse the judgment of conviction and remand with instructions that the case be dismissed.
At trial, Ms. Adams testified that she and appellant had a romantic relationship beginning in April 1996, when she lived with her aunt. That summer she decided to end the relationship because she became afraid of appellant, and she moved to live with her mother to avoid the continual calls and threats appellant had been making while she was at her aunt's home. Some months later, Ms. Adams tried to reconcile with appellant after he agreed to stop being abusive. Within about one month, however, she again ended the relationship.
The following year, on May 22, 1997, the phone rang several times at her mother's home, but Ms. Adams initially did not answer because the telephone caller identification box displayed "Lorton format" - an indication that the call originated from the Lorton Correctional Facility - and she knew it would be appellant. Appellant called several more times before she answered the phone.
The first time Ms. Adams answered the telephone, she stated that she was cooking breakfast and would not accept the call, and hung up. The next time she answered the phone, appellant said, "bitch, I'm gone [sic] to fuck you up" and "bitch, I'm going to kill you." Ms. Adams understood the first statement as a threat that he was going to beat her up; the second one needs no interpretation.
Ms. Adams immediately reported the incident to the Metropolitan Police Department and Officer Gomez responded the same day. While Officer Gomez was with Ms. Adams at her mother's home, the telephone rang, and Ms. Adams informed Officer Gomez that she knew it was appellant because the caller identification box indicated that the call originated from Lorton. With her permission, Officer Gomez answered the telephone and accepted the charges. Ms. Adams did not speak to appellant or listen during that telephone call. Appellant was arrested on a bench warrant on June 30, 1997, some five weeks after Officer Gomez responded to Ms. Adams's complaint and took appellant's call from Lorton.
Ms. Adams was the sole government witness at trial; neither party called Officer Gomez. Ms. Adams testified that from her experience telephone calls originating at Lorton are collect, the recipient must accept the charges for the call to go through, and a recorded message announces that the telephone conversation is being recorded. Appellant presented no evidence but cross-examined Ms. Adams in an attempt to show that her testimony was incredible because she testified that she wanted to end her relationship with appellant, yet had sought to reconcile with him even after the threatening call. In closing, defense counsel argued for acquittal because Ms. Adams was the only witness who testified about the threatening phone call and the trial court had agreed to draw a negative inference from the government's failure to preserve the tape of the call.
II. The Trial Court's Rulings
Two months before trial, defense counsel sought a continuance in order to obtain the tape recording of the call which formed the basis for the threats charge. When the government did not produce the tape, appellant filed a motion to dismiss or for sanctions, claiming that the government had failed in its duty to preserve the tape recording made by the corrections facility. After a pretrial hearing,*fn1 the trial court ruled that because appellant had not shown that the government's failure to preserve the tape was in bad faith, there was no due process violation, and dismissal of the information was not warranted. It further found that the routine taping of inmates' conversations at Lorton did not convert the Department of Corrections into an investigative agency of the United States, and that appellant was not prejudiced by the destruction of the tape because he could not show it was exculpatory. The trial court deemed that Rule 16 of the Criminal Rules of Superior Court was inapplicable because the tape was "not procured through an interrogation or through police investigative reports." It reserved ruling on appellant's claim that the government had breached its obligation under the Jencks Act, 18 U.S.C. § 3500.
After the government rested at trial, the court considered the Jencks Act claim and ruled that there was a violation. The court explained in its ruling that, while the Department of Corrections was not an investigative agency, so that the obligation to preserve information did not apply to the Department generally, under the facts of this case the conversation was "within the purview of the government." Specifically, "the police officer had an obligation in ...