Appeals from the Superior Court of the District of Columbia (F-7056-98). (Hon. Ronna L. Beck, Trial Judge).
Before Schwelb and Glickman, Associate Judges, and Ferren, Senior Judge.
The opinion of the court was delivered by: Ferren, Senior Judge
A jury found appellant, Ronnie Jenkins, guilty on one count of first-degree child sexual abuse, D.C. Code § 22-4108 (1981), and one count of first-degree cruelty to children, D.C. Code § 22-901 (a) (1981). The trial court sentenced him to consecutive prison terms of five to fifteen years for the sexual abuse and three to nine years on the cruelty charge. We remand the case for further proceedings.
Jenkins was involved in a romantic relationship with K.J., the mother of a twelve-year-old boy, A.J., and a seven-year-old girl, I.J. On the evening of September 28, 1998, A.J. saw appellant sexually molesting I.J. in their mother's bedroom by "touching her privacy" with her "underwear below her knees." A.J. told his mother what he had seen, whereupon she slapped him. The children's mother then confronted I.J., who denied that anything had happened. Aware, however, that A.J. had accused him of molesting I.J. and that the police were on their way, Jenkins told the children's mother that he "was gonna fuck [A.J.] up." According to A.J., Jenkins then took him to A.J.'s room and beat him repeatedly. The next morning, A.J. confided in Ms. Tarkiashi Thompson, who lived with the family. She observed that A.J.'s "face was messed up. . . . [I]t looked like his nose was broken[;] there was red and purple marks on it and he had a fat lip. It looked like his face was lop-sided." A.J. asked Ms. Thompson to call his grandmother, which she did. Apparently the grandmother immediately called the police, who came straightaway to the apartment. Officer Leonora Armstead spoke with I.J. alone, then with A.J., after which the children were taken to the hospital for examination.
After Jenkins was charged, tried, and convicted for sexual abuse and cruelty, he filed a timely notice of appeal. He also filed a motion for a new trial under D.C. Code § 23-110 (2001) alleging ineffective assistance of counsel, which the trial court denied after a hearing -- a ruling that Jenkins also has appealed. Finally, Jenkins appealed the trial court's grant of a government motion to correct the trial transcript of the poll of the jury verdict. We have consolidated these appeals.
In his § 23-110 motion for a new trial, Jenkins argued that his trial counsel, after requesting a poll of the jury, had been constitutionally ineffective in failing to point out that not all of the jurors had been polled and that the verdict, accordingly, was not unanimous as required for conviction. Logically preceding this collateral attack, however, is Jenkins' direct appeal of the trial court's post-trial ruling that corrected the trial transcript to show that the jury poll had, in fact, been unanimous. We therefore consider this latter issue first.
The trial transcript reflects that only eleven out of twelve jurors were polled after the jury announced a guilty verdict. Specifically, there is no record that juror number three was polled. After the poll was concluded without comment or objection, the trial judge asked if there were "anything further," and both government and defense counsel replied "no." As part of his § 23-110 motion, appellant Jenkins -- represented by new counsel -- alleged that the verdict was invalid because only eleven jurors had been polled. The trial judge, who was "astonished" at this thought, expressed her belief -- without specific recollection of the poll -- that there had been a transcription error. She suggested that the government ask the Court Reporting and Recording Division (CRRD) to review the tape and the reporter's notes. At the same time, however, without waiting for a response from CRRD, the judge rejected Jenkins' argument, as well as the others he had raised in support of his ineffectiveness claim (discussed below), and denied his new trial motion.
On January 7, 2004, in preparing for the consolidated appeal, the government requested the CRRD review. A month later, the Deputy Director of CRRD informed the government by unsworn letter that the trial transcript contained an error. The Deputy Director had reviewed the court reporter's notes and concluded that the transcript failed to reflect what actually had happened: juror number three had been polled and assented to the verdict. Corrected copies of the transcript were sent to both parties.
The government asked Jenkins to stipulate to this correction of the trial record, but he refused. The government then filed a motion in the trial court to correct the trial record pursuant to D.C. App. R. 10 (e) (2004), which Jenkins opposed. The trial court granted the government's motion, noting that CRRD's review of the reporter's notes showed that juror number three had been polled and assented to the verdict. Appellant filed a timely appeal.
When a defendant requests a poll of the jury after an announced guilty verdict, the verdict will not be final until the poll has been completed and the jury's vote has been found unanimous. Boykins v. United States, 702 A.2d 1242, 1248 (D.C. 1997) (once jury poll has been requested, verdict is not immutable until poll is completed); Thomas v. United States, 544 A.2d 1260, 1262 (D.C. 1988) ("a verdict is not final until the jury's deliberations are over, the result is announced in open court, and no dissent by a juror is registered") (quoting Lewis v. United States, 466 A.2d 1234, 1238 (D.C. 1983)); see Super. Ct. Crim. R. 31 (d) (1999).
This court will reverse a trial court's grant of a motion to correct the trial record only if the court's factual finding that the record required correction was clearly erroneous. Cole v. United States, 478 A.2d 277, 284-85 (D.C. 1984); see D.C. Code § 17-305 (a) (1981). The trial court's factual finding here -- that the trial transcript should be corrected to show that juror number three (in addition to the other eleven jurors) had assented to the verdict -- was based exclusively on the CRRD Deputy Director's letter. That unsworn letter, however, was not competent enough evidence to show with sufficient certainty that juror number three had joined the others in a guilty verdict. In addition to being unverified -- in contrast with the transcript itself "certified" by the court reporter -- that letter was inadmissible hearsay. See, e.g., Jones v. United States, 829 A.2d 464, 466 (D.C. 2003); Gibson v. United States, 792 A.2d 1059, 1067 (D.C. 2002); Stack v. United States, 519 A.2d 147, 157 (D.C. 1986). Nor did the letter indicate that the Deputy Director assuredly had the ability to review the reporter's notes for accuracy or, in any event, had reviewed the tape recording of the proceeding, as the trial court itself had suggested, to assure that juror number three had been polled.
These infirmities in the proof are not enough to demonstrate that the trial court's finding was clearly erroneous, to the point that the convictions must be reversed; but they are enough to require greater certainty before one can say with sufficient confidence that juror number three joined the verdict. Accordingly, we remand the case for further findings on this issue. See Smith v. United States, 665 A.2d 962 (D.C. 1995); D.C. Code § 17-306 (2001). If the trial court, upon further inquiry, finds that juror number three did not assent to the verdict and that the verdict, therefore, was not unanimous, the court shall order a new trial. If, however, the trial court finds that this juror did join the verdict, Jenkins' convictions shall stand (in light of our rejection of his other contentions on appeal discussed below) -- subject, of course, to his right to appeal the trial court's ruling, after remand, on the unanimity issue if he so chooses. (In view of this ruling on ...