Appeals from the Superior Court of the District of Columbia (F-2231-98) (Hon. Stephen G. Milliken, Trial Judge) (Hon. John M. Mott, Post-Trial Judge).
The opinion of the court was delivered by: Kravitz, Associate Judge
Before GLICKMAN, Associate Judge, STEADMAN, Senior Judge, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia.*fn1
A Superior Court jury found appellant David Jackson guilty of aggravated assault while armed and assault with a dangerous weapon for beating his estranged wife with a hammer. The trial court imposed consecutive prison sentences for the two convictions, including a life term for aggravated assault while armed, and later denied appellant's motion to set aside the judgment pursuant to D.C. Code § 23-110 (2001). In these consolidated appeals, appellant argues principally (1) that the evidence of "serious bodily injury" presented at trial was insufficient as a matter of law to support his conviction of aggravated assault while armed; and (2) that the trial court erred in rejecting, without a hearing, his post-conviction claims of ineffective assistance of counsel. We reverse appellant's conviction for aggravated assault while armed but otherwise affirm the judgment and the denial of post-conviction relief.
Appellant went to trial in November 1998 before Judge Stephen G. Milliken on one count of threatening to injure a person, one count of aggravated assault while armed with a hammer, two counts of assault with a dangerous weapon (one alleging the use of a hammer, the other a fan), and two counts of first-degree sexual abuse. The charges arose from an incident in which appellant was alleged to have beaten and sexually assaulted his fifty-two year-old wife, Dorothy Irby, inside her apartment on March 24, 1998.
Evidence presented at trial established that appellant and Irby were married and living together when Irby learned, on March 2, 1998, that appellant was having an affair with another woman. Irby confronted appellant about the affair, and appellant moved out of the couple's apartment at 800 Southern Avenue, S.E. Irby subsequently told appellant by telephone on March 23, 1998 that the apartment was no longer his home. In response, appellant allegedly threatened Irby by stating, "I know you want me to come over there and to hit you upside of your head."
That night, March 23-24, 1998, Irby awoke between 12:30 and 1:00 a.m. to the sound of appellant banging on her apartment door. Irby let appellant inside, and appellant punched Irby in the back of her head and accused her of having her own affair. Irby denied having an affair, but appellant persisted in his assault, opening a gash on Irby's right ear by hitting her on the side of her head with a hammer. Over a period of several hours, according to Irby's testimony at trial, appellant then used the hammer, his fists, and a metal fan to beat Irby repeatedly on her face, head, legs, and body. Asked at trial to describe her pain during the assault, Irby said that she experienced "regular shock, sharp pains, you know."
At some point, Irby, who was bleeding from her ear, nose, head, and legs, asked appellant to take her to the hospital. Appellant refused, telling Irby that he wanted to have sex with her instead. Irby testified that she declined to have sex but that appellant ripped off her nightgown and forced his penis into her vagina and mouth. Irby ultimately persuaded appellant to go to sleep in her bed, and once appellant was safely asleep, Irby slid out of the bed, got dressed, left the apartment, and walked three blocks to a McDonald's, where she used a pay phone to call 911. It was approximately 6:00 a.m.
Officer Bertha Rice-Riley responded to the 911 call and met Irby in the street outside the McDonald's. Irby reported the assault to Rice-Riley, who observed that Irby's face was swollen and that Irby had blood on her pants. The officer drove Irby back to the apartment, where they found appellant still asleep in Irby's bed. The officer woke appellant and took him into custody. She then called for an ambulance, and paramedics arrived soon thereafter and treated Irby inside the apartment before taking her to the emergency room at D.C. General Hospital.
A crime scene search officer, Joseph Morquecho, arrived later at Irby's apartment and recovered a bloody hammer and took photographs of blood he observed in the bedroom of the apartment. The photographs, offered by the government at trial, showed scattered splotches of blood on the bed and a few drops on the floor and walls.
Hospital records admitted in evidence at trial established that Monique Johnson, a triage nurse at D.C. General Hospital, examined Irby upon her arrival at the emergency room. After determining that Irby's blood pressure and pulse were normal, Johnson referred Irby to the hospital's Minor Trauma Unit, where Irby was examined by a trauma surgeon named Dr. Festus Halay. Halay found a four-centimeter "split" laceration that went all of the way through the skin and cartilage of the outer part of Irby's right ear, a three-centimeter laceration on the back of Irby's head, substantial bruising on Irby's cheeks and neck and around both eyes, a two-centimeter and a three and one-half-centimeter laceration on Irby's right shin, and a three-centimeter laceration on Irby's left shin. Halay also found minor bruising and scratches on Irby's chest, left breast, right side, and left and right shoulders. He sutured all of the lacerations, using fourteen stitches to close the wound on Irby's right ear alone. At trial, the government presented photographs of Irby's bandaged right ear, of the bruising to Irby's face and body, and of the sutured lacerations on Irby's shins and on the back of her head.
Halay testified that the laceration to the outside of Irby's right ear was "to some extent" a serious injury because torn cartilage poses a risk of infection if it is not repaired right away. As to Irby's other lacerations, Halay testified that the cut on the back of Irby's head was "not very bad" because it went through only the skin and did not affect the skull, and that the cuts on Irby's shins were similarly "skin-deep" and "not very serious." Irby had testified earlier in the trial that an x-ray taken of her nose at the hospital showed a broken bone at the top of her nose, but Halay told the jury that the x-ray of Irby's nose was "normal" and that x-rays of Irby's cheeks and skull and a CT-scan of Irby's head and brain, all taken at the hospital on the morning of the incident, showed no fractures, broken bones, or other abnormalities. Halay also testified that Irby was alert and oriented at the hospital and that she reported no loss of consciousness either during or after the assault. Halay did say that Irby was "really tender . . . to palpation on her nose" and "was having pain, no question about that," and he told the jury that before Irby was discharged from the hospital he gave her a prescription for Tylenol No. 3. However, the government presented no evidence indicating whether Irby ever actually took any pain medication or even filled the prescription she was given, and neither Irby nor any of her treating medical professionals testified to any ongoing pain Irby may have experienced following her treatment in the emergency room on the morning of the assault.
Irby went to her personal physician, Dr. Jack Summers, for a follow-up visit on March 31, 1998, one week after the assault. Summers removed the sutures from the lacerations on Irby's ear, head, and shins, and he observed that Irby had abrasions on her chest, a black and blue face, "blood bruising" around her nose, and a bloody right eye.
Summers testified that the laceration to Irby's ear was the most significant of her injuries. Summers had not seen Irby in the approximately eight months between her visit to his office and the trial, but he testified that the laceration to the ear would not affect Irby's hearing and that the wound appeared on March 31, 1998 to have "healed well" even though it "would definitely leave a scar." Summers gave Irby a referral to a plastic surgeon in the event that Irby might need some cosmetic reconstruction on her ear, but he testified that Irby never followed up on the referral, presumably, he told the jury, because her ear "healed relatively satisfactorily right from the emergency room treatment." Summers also told the jury that the laceration to the back of Irby's head was "relatively minor" and that he expected it to heal with "minimal scarring" and be fully covered by her hair. As for the lacerations on Irby's shins, Summers testified that the wounds had "healed fine" but that they would leave "cosmetic scars" that would be "quite noticeable over her shins on both legs." Summers described the scratches to Irby's chest as "of no long term significance," and the evidence showed that Summers neither prescribed additional medication for Irby on March 31, 1998 nor asked her to schedule another follow-up appointment.
At the request of the prosecutor, Irby stepped down from the witness stand at trial and exhibited scars on her right ear and shins for the jury. However, neither Irby, the trial judge, the prosecutor, nor the defense lawyer provided any description for the record of the appearance of Irby's scars, and the record on appeal contains no evidence or formal descriptive comments concerning the actual extent of the scarring at any time after Irby's visit with Summers one week after the assault. The only indication in the record of the appearance of Irby's scars after her follow-up visit with Summers is a comment by the trial judge, made at trial in the course of his oral ruling denying appellant's motion for a judgment of acquittal, that the injury to Irby's ear had "resolved nicely."
The jury returned a verdict on November 19, 1998, finding appellant guilty of aggravated assault while armed and of assault with a dangerous weapon (hammer). Apparently unconvinced by certain portions of Irby's testimony, the jury found appellant not guilty of assault with a dangerous weapon (fan) and of both counts of first-degree sexual abuse. At sentencing on September 22, 1999, following the appointment of new counsel for appellant, Judge Milliken imposed consecutive prison terms of fifteen years to life for aggravated assault while armed and forty months to ten years for assault with a dangerous weapon.
Appellant filed a timely notice of appeal from the judgment of conviction. He subsequently indicated, however, that he wished to prosecute a motion to set aside the judgment pursuant to D.C. Code § 23-110. At appellant's request, we stayed the direct appeal pending the trial court's resolution of the post-conviction motion, which appellant ultimately filed, through a ...