Appeal from the Superior Court of the District of Columbia (M-12680-00) (Hon. Hiram Puig-Lugo, Trial Judge).
Argued September 21, 2004
Before: RUIZ and REID, Associate Judges, and WAGNER, Senior Judge.*fn1
Appellant, Robert M. Williams, was convicted following a bench trial of one count of misdemeanor sexual abuse (D.C. Code § 22-4106 (1981), recodified as D.C. Code § 22-3006 (2001)) and two counts of simple assault (D.C. Code § 22-504 (1981), recodified as D.C. Code § 22-404 (2001)).*fn2 He argues for reversal and a new trial on the ground that portions of the transcript of his trial are unavailable, thereby impairing effective prosecution of an appeal by his new counsel on appeal and meaningful review by this court. We remand the case to the trial court for proceedings consistent with this opinion, or alternatively, a new trial, if deemed to be in the interest of justice.
The following facts appear from the transcript that is available. According to the testimony of the complaining witness, Cheryl Harp, appellant is a former boyfriend who visited her on August 11, 2000, although she had asked him not to. He joined in drinking and conversing with Harp and two other visitors, Wanda Brown and Arcatia Camdon, her cousins. During a discussion about his relationship with Harp, appellant became upset and declared that if he could not have Harp, nobody would. Harp and appellant continued talking after Brown and Camdon left; appellant became upset and refused to leave. He prevented Harp from leaving by taking her keys from a deadbolt lock and prevented her from calling for help by snatching the telephone from the wall. Harp testified that appellant choked her, struck her with his open hand and hit her in the eye and mouth with his fist, causing her lip to bleed, and dragged her into the bedroom where he ripped off her clothing, choked, threatened and raped her.*fn3 She said that after appellant fell asleep, she escaped through a balcony door, crossed the street and called the emergency 911 number from a pay telephone. Harp then saw appellant and ran. He caught up with her, apologized, offered to fix the telephone and asked if she was going to send him to jail. When she said that he was going to jail, appellant pushed her into the woods and choked her.
Metropolitan Police Officer Thomas Jefferson testified that he was in uniform and patrolling the area of Southern Avenue in a marked police cruiser when he saw appellant with "a woman wrapped in his arms" and slowed down. Appellant let Harp go when he spotted the cruiser. Harp, who appeared to be upset, told the officer that appellant had assaulted her. Appellant, who refused the officer's request to stop at the cruiser, fled into the woods. Officer Jefferson caught appellant and handcuffed him after a struggle.
Appellant testified in his own behalf and called as witnesses: his brother, Anthony Williams; his mother, Vivian Smiley; Harp's neighbor, Kenneth Brown; and Loretta Royal, appellant's live-in, romantic interest at the time. Appellant testified that Harp was pleased to see him, and he gave her money before she went out and returned with Brown and Camdon. According to appellant, Harp and Brown were smoking crack cocaine, but he was not. He left to get more beer, which everyone shared. When the discussion turned to his relationship with Harp, he went into the bedroom. At about 6:00 a.m., Royal called appellant, but Harp would not permit her to speak with him.
Williams testified that he drove appellant to Harp's place on August 11th and that he heard her say that if appellant kept "messing" with other women, she would have him locked up for a long time. Brown testified that he lived above Harp, that he saw her and appellant around midnight on August 11th-12th, that the occasion seemed to be a happy one, and that he heard no loud music or screams emanating from Harp's apartment. Appellant's mother testified that Harp told her that appellant had a relationship with someone else and that Harp said that she was very upset and hurt about it. Royal testified that she was having a telephone conversation with appellant when she heard Harp say, "You're talking to that black b[- - - -] on the phone. . . . [a]nd this time you're going to jail for a long [expletive] time." Harp invited Royal over, but she did not go outside after she arrived. Royal acknowledged her romantic relationship with appellant, and she was impeached with two prior convictions.
Appellant argues that his convictions must be reversed and a new trial granted because portions of the transcript are unavailable. He contends that the transcript is so incomplete that it prevents his new appellate counsel from reviewing for possible error and this court from conducting a meaningful review. The government argues that appellant has forfeited his right to complain about missing transcripts because he failed to take adequate steps to reconstruct the record. A.
The Superior Court is required to record simultaneously all trial proceedings verbatim. Cole v. United States, 478 A.2d 277, 280-81 (D.C. 1984) (citing Super. Ct. Crim. R. 36-I (a)).*fn4 We have held that "the reporting requirements of Rule 36-I (a) are mandatory, and exceptions will be narrowly construed." Lucas v. United States, 476 A.2d 1140, 1142 (D.C. 1984) (citing United States v. Workcuff, 137 U.S. App. D.C. 263, 264-65, 422 F.2d 700, 701-02 (1970)) (footnote omitted). Rule 36-I (a)'s requirement serves two important purposes:
(1) it facilitates appellate counsel's efforts to examine the record for error and thereby protect his or her client's rights; and (2) it ensures the availability of a record adequate for meaningful appellate review. See Cole, 478 A.2d at 280-82 (citations omitted). Nevertheless, this court has rejected a per se rule requiring reversal because of missing transcripts. Lucas, 476 A.2d at 1142; see also McCoy v. United States,781 A.2d 765, 771 (D.C. 2001) (citing Cole, 478 A.2d at 282) (noting that failure to provide certain evidence on appeal is not per se reversible error and affirming conviction where reconstructed photo array permitted fair review). The question is whether the unavailability of transcripts prejudices appellant's right to appeal. Lucas, 476 A.2d at 1142. Such prejudice may occur when: (1) "it is impossible for the appellate court to determine from the record whether or not prejudicial error occurred;" or (2) "although no specific error is claimed, the omission in the transcript prevents new appellate counsel from reviewing a substantial or crucial portion of the trial proceedings to determine whether error occurred." Id. (citations omitted).
"[A]ppellant bears the burden of presenting this court with a record sufficient to show that error occurred at trial." Cole, supra, 478 A.2d at 283 (citing Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982)) (other citations omitted). Under the version of D.C. App. R. 10 (d) applicable to the present appeal, with special leave of court, appellant may file a "statement of proceedings and evidence from the best available means, including the recollection of counsel, in lieu of the reporter's transcript."*fn5 Appellee has an opportunity to file objections, and any disputes concerning the accuracy or completeness of appellant's proposed statement are to be resolved by the trial court. D.C. App. R. 10 (d); Cole, 478 A.2d at 284. In preparing a complete record, the trial court "'may rely on its own recollection or notes from trial, or may conduct hearings and consult with counsel and other sources.'" McCoy, supra, 781 A.2d at 771-72 (quoting Cole, 478 A.2d at 284-85). If the trial court approves the statement, upon filing, it becomes a part of the record on appeal. D.C. App. R. 10 (d). When unable to reconcile material disagreements or to certify the statement as an accurate reconstruction of the trial sufficient to permit appellate review, the trial court should set aside the judgment and order a new trial. Cole, 478 A.2d at 285 (citing ...