Appeal from the Superior Court of the District of Columbia (F-6764-98) (Hon. Reggie B. Walton, Trial Judge) (Hon. Herbert B. Dixon, Jr.).
The opinion of the court was delivered by: Oberly, Associate Judge
Before RUIZ, THOMPSON, and OBERLY, Associate Judges.
Appellant Benjamin Egbuka was convicted of Simple Assault, Attempted Threats, and Attempted Possession of a Prohibited Weapon, in violation of D.C. Code §§ 22-504, 22-507, and 22-3214 (b) (1981). He was sentenced to 180 days' imprisonment on each count, which was suspended in favor of time served (approximately 30 days), and two years of supervised probation, which was terminated by the trial judge eight months early. He argues for reversal of his convictions on the grounds that (1) substantial portions of the trial transcript are unavailable, impairing both his new appellate counsel's ability to mount an effective appeal and this court's ability to conduct a meaningful review of the case, and (2) the trial judge committed reversible error by failing to inform the complaining witness of her spousal privilege not to testify against him. We agree on both counts. We conclude both that the deficiencies in the record prevent us from performing our appellate function properly, and that, based on the record that is available to us, the trial judge erred in the basis for his refusal to advise the complaining witness of her spousal privilege. Accordingly, we reverse and remand for the government to decide whether it wishes to retry this decade-old case.
This case was tried by the court, sitting without a jury. Large portions of the trial transcript -- approximately 40 per cent -- were never transcribed because of an apparent malfunction of the recording equipment. Of the six days of trial proceedings in October and November 1999, only two days were recorded in their entirety. To provide this court with a sufficient record of the trial, this court remanded the case to the trial court with instructions to reconstruct the trial record pursuant to District of Columbia Court of Appeals Rule 10 (d).*fn1 Under the version of D.C. App. R. 10 (d)(1) applicable to the present appeal,
[i]n extraordinary circumstances, with special leave of this court, the appellant may prepare a statement of the proceedings and evidence from the best available means, including the recollection of counsel, in lieu of the reporter's transcript.
Between the time of trial and this court's remand, the trial judge, Judge Reggie B. Walton, retired from the Superior Court and was appointed to the federal bench, and Superior Court Judge Herbert B. Dixon, Jr., assumed responsibility for this case. In an effort to reconstruct the record of this trial, over which he did not preside, Judge Dixon reviewed contemporaneous trial notes from Judge Walton, the Assistant United States Attorney who tried the case for the government, and a law student intern for the United States Attorney's office who was present during the trial. In addition, Judge Dixon received post-hoc letters from Egbuka's trial counsel, Egbuka himself, and counsel for Ms. Dana Beepath-Hardy, who was the alleged victim and a government witness at trial. These letters were not particularly helpful in reconstructing the trial record because none of these persons had kept contemporaneous notes and none had a detailed recollection of the trial four years earlier.
After reviewing submissions from both parties, Judge Dixon issued an Order on October 31, 2006, in which he approved and certified the Substitute Statement of Proceedings and Evidence ("Substitute Statement" or "SPE"). Egbuka's appellate counsel opposed the court's certification of the Substitute Statement as a sufficient and accurate record of the trial proceedings. We review Egbuka's objections in Section II of this opinion, but we pause here to set forth the facts of the case according to the Substitute Statement and the available transcripts.
Egbuka and Beepath-Hardy had been involved in a relationship for several years when Egbuka, a Specialist in the United States Army, was transferred to a post in South Korea. Beepath-Hardy often called Egbuka while he was in South Korea and, during one phone call, threatened to kill herself. Worried about Beepath-Hardy's mental state, Egbuka flew back to the United States to see her.
On September 18, 1998, Egbuka and Beepath-Hardy were involved in an altercation in front of Beepath-Hardy's apartment building on Georgia Avenue in Northwest Washington, D.C. Although accounts vary, it appears that Egbuka surprised BeepathHardy by approaching her in front of her apartment building as she walked home from work. Jemma Raymond, Beepath-Hardy's neighbor and a government witness, testified that she heard Beepath-Hardy call for help and, as Raymond looked outside, she saw Egbuka chasing Beepath-Hardy toward Raymond's building. Raymond then saw Egbuka grab Beepath-Hardy and push her against a wall. Raymond called the police while still watching the events through her apartment window. Raymond saw Egbuka "wave a gun around" as he continued to talk to Beepath-Hardy, but she did not see Egbuka point the gun at Beepath-Hardy at any time. Two police officers arrived on the scene, by which time Egbuka and Beepath-Hardy were conversing with each other. One police officer found what he described as a "replica BB gun" in Egbuka's possession. The police later arrested Egbuka.
In February 1999, between the time she testified about the incident in front of a grand jury and when she was called by the government to testify at Egbuka's trial, BeepathHardy married Egbuka. According to the Substitute Statement, the government offered Beepath-Hardy use immunity for her testimony and, after consulting with her court-appointed counsel, Beepath-Hardy accepted the offer on October 6, 1999. The in-court discussion of this event is missing from the trial transcript.
Later, when the government called Beepath-Hardy to the stand, the Assistant United States Attorney informed Judge Walton that there was a potential marital privilege issue with Beepath-Hardy's testimony because she was married to the defendant. Judge Walton determined he had no obligation to advise Beepath-Hardy of the privilege, a ruling to which Egbuka's counsel objected. According to the SPE, Judge Walton took a recess to consider the issue further and returned to the courtroom to rule that under the D.C. Intrafamily Offenses Act, D.C. Code § 16-1005 (b), Beepath-Hardy's marital privilege could be "overridden" and he again declined to advise Beepath-Hardy of her marital privilege. The entire discussion of the spousal privilege issue and Judge Walton's rulings are missing from the transcript.
Based on Judge Walton's decision not to advise Beepath-Hardy of her spousal privilege, the government moved forward with its direct examination of Beepath-Hardy and, after another sidebar between the court and counsel, the transcript of which is also unavailable, impeached her trial testimony with portions of her prior grand jury testimony. During her grand jury testimony, Beepath-Hardy had testified that Egbuka "held onto [her] arm and started pulling [her] towards [sic] the apartment door." She testified that she had struggled ...