Appeal from the Superior Court of the District of Columbia (M-10741-99) (Hon. Lee F. Satterfield, Trial Judge).
The opinion of the court was delivered by: RUIZ, Associate Judge.
Submitted September 25, 2007
Before RUIZ and KRAMER, Associate Judges, and NEWMAN, Senior Judge.
Appellant appeals from a conviction of simple assault (D.C. Code § 22-504 (Supp. 1999)) entered by the trial court after a one-day bench trial. Due to an equipment error, certain parts of the trial were not recorded: the arguments and ruling on appellant's motion for judgment of acquittal, and the direct testimony and cross-examination of appellant's only witness, who was also the complainant (the redirect and recross examinations were transcribed). Although the trial court reconstructed the missing portion of the transcript in the form of a Settled and Approved Statement of Evidence, pursuant to D.C. App. R. 10 (d), appellant argues that his conviction should be vacated because the state of the record does not allow appellate counsel (who was not trial counsel) to meaningfully review the trial proceeding to identify possible issues for appeal.
On the night of September 2, 1999, an officer from the Metropolitan Police Department heard a woman screaming from an apartment building while he was standing outside the building. The officer saw a woman running through the lobby to the security desk and appellant following after her. Upon seeing the officer, appellant slowed down and opened the door to let the officer in the building.
The officer recognized the woman, Ms. Sahra Ali David, from responding to a previous incident. Ms. David was crying and appeared to be "excited . . . upset and scared." She was shaking, barefooted, and had blood around her toe. The trial court admitted (over defense objection) as an excited utterance the complainant's out-of-court statement to the officer that appellant had stepped on her toes with his boots when she tried to leave the apartment and punched her in the stomach, and that she was pregnant. Ms. David refused medical treatment.
After the officer's testimony, the government closed its case, and defense counsel moved for judgment of acquittal. It was at this point that the recording stopped, apparently due to an equipment malfunction.
According to the Settled and Approved Statement certified by the trial court,*fn2 Ms. David, who was five-months pregnant at the time of trial, testified on direct examination that appellant did not assault her, but that she "made up a story" that appellant had punched her in the stomach because "she wanted to hurt him because he was leaving her." She had told this made-up story to the police officer at the scene, to the court at a hearing for a temporary protection order (TPO) against appellant the following day, and to her friend Marcy Rinker some time later.
Ms. David explained during cross-examination that she was crying because she had bumped her foot while running barefoot in the apartment lobby. She denied telling the police that appellant had choked her or punched her in the arm. She also denied that appellant told her how to testify. She told the court that she loved her husband, and was aware that appellant "could go to jail if found guilty . . . and she no longer wanted him to go to jail."
The recording resumed as defense counsel recalled Ms. David to ask her one more question on redirect. Ms. David testified that she had been drinking on the night of the incident, but on recross-examination said that she was not drunk. Ms. David testified that the police officer told her about obtaining a TPO. Appellant did not testify and the defense closed its case.
The government then asked the trial court to take judicial notice of the TPO entered against appellant. Over defense objection, the court admitted Ms. David's testimony at the TPO hearing both for impeachment purposes and as substantive evidence as prior sworn inconsistent testimony under D.C. Code § 14-102 (b) (1) (Supp. 1999 ).*fn3 In their closing arguments to the court, counsel referred to Ms. David's testimony, including portions not captured by the recording.
The trial court is required to keep a simultaneous, verbatim record of all of its proceedings. See Super. Ct. Crim. R. 36-I (a). Relevant portions of the transcript must be included in the appeal record to allow for meaningful review by this court. See Cole v. United States, 478 A.2d 277, 281 (D.C. 1984). An incomplete transcript compromises appellate counsel's ability to advocate on behalf of her client, and "interferes with this court's assigned duty to rule on the existence and the prejudicial nature of errors raised at trial, and to address previously unchallenged defects in the trial court proceedings which prejudice the substantial rights of the appellant." Id. at 282 (noting that "the task of an appellate court becomes much more difficult -- and may become impossible -- when review is based on the post hoc reports of counsel, rather than on a transcript that reflects a contemporaneous account of the trial proceedings"); see United States v. Workcuff, 137 U.S. App. D.C. 263, 265, 422 F.2d 700, 702 (1970). "The problem is greatly exacerbated when . . . the attorney representing the appellant is different from the counsel who represented him ...