Appeal from the Superior Court of the District of Columbia (CMD14640-07) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FISHER and THOMPSON, Associate Judges, and BELSON, Senior Judge.
Appellant Denise Davis appeals her conviction for assault, arguing that the evidence was insufficient and that she was improperly convicted following a bench trial, rather than a jury trial. Applying the plain error standard of review to the second issue (as appellant concedes we should), we affirm.
I. Factual and Procedural Background
On the evening of June 23, 2007, appellant Denise Davis and her boyfriend David Yancy were on a ramp at the Capitol Hill Nursing Home. Both appellant and Mr. Yancy were homeless and planning to spend the night on the ramp. Wilhelmina Durant, the victim, was waiting at a bus stop located near the ramp. Ms. Durant, a friend of Mr. Yancy's and an acquaintance of appellant's, spoke briefly to Mr. Yancy.Ms. Davis told Mr. Yancy "not to speak to that b[itch]," and then advanced down the ramp towards Ms. Durant. Ms. Durant said to Ms. Davis: "Now, if you take another step, you know it's going to be on." Ms. Davis continued to advance, and then Ms. Durant felt something sharp move across her clothes. Ms. Durant "threw up" a hand to defend herself, and Ms. Davis swung, cutting Ms. Durant's thumb with a knife. Ms. Durant then turned around and went to a convenience store two blocks away, from which she called the police.
Officers Kristina Fersener and Dustin Huge soon arrived at the convenience store, where they met Ms. Durant, whom Officer Fersener described as upset, crying, screaming, and irate. They then put her in the back of their patrol car and returned to the 200 block of 8th Street. Upon arrival, Ms. Durant identified Ms. Davis. Officer Fersener patted the appellant down but did not find any weapons on her.
Detective Vincent Witkowski also responded to the scene, where he spoke with the officers and with Ms. Davis, whom he described as crying and yelling. Detective Witkowski then began to look for a knife. After searching, one of the officers asked the appellant where the knife was. Ms. Davis responded by pointing to an area by a wall. Detective Witkowski then looked over the wall and spotted the knife on top.
Ms. Davis and Mr. Yancy both testified that more than a year earlier Ms. Durant had slapped Ms. Davis in the face while trying to get money. Ms. Davis testified that on the night in question Ms. Durant had approached her, had tried to pull her backpack, and had slapped her in the face because Ms. Davis wouldn't give Ms. Durant any money. Ms. Davis stated that in response she made a vertical downward slicing motion with a knife she had been using to cut up tomatoes. She admitted drinking two twenty-four ounce cans of beer that night. Mr. Yancy did not see the assault, and admitted that he had drunk three twenty-four ounce cans of beer that night. Mr. Yancy also admitted having had part of a beer on the day of his testimony. The government impeached Ms. Davis with a conviction under the Bail Reform Act, and impeached Mr. Yancy with a conviction for unlawful entry.
Based on these events, appellant was charged with simple assault (D.C. Code § 22-404 (2001)) and possession of a prohibited weapon ("PPW (b)") (D.C. Code § 22-4514 (b) (2001)). Had the government followed its usual course, it would have moved to amend the information to charge attempted PPW (b), making it appropriate to resolve both charges in a non-jury trial. See Lewis v. United States, 518 U.S. 322 (1996) (defendant prosecuted in a single proceeding for multiple petty offenses has no constitutional right to a jury trial); D.C. Code § 16-705 (2009 Supp.) (no statutory right to jury trial where two offenses, each punishable by imprisonment for 180 days or less, are joined for trial). The prosecutor did not seek to amend, however, and neither the court nor defense counsel noticed the oversight. A bench trial began without objection from the defense, and the court found appellant guilty of both offenses.*fn1
One month later, the trial court vacated the PPW (b) conviction, upon defense motion, because Ms. Davis had not waived her right to a jury trial on this count.*fn2 The court declined to vacate the conviction for assault, "there being no legal invalidity of her trial as a bench trial on that offense...." It then issued a revised judgment and commitment order reflecting only the conviction and sentence for assault.*fn3
When faced with a single charge of assault, a criminal defendant is not entitled to a jury trial as a matter of either constitutional or statutory right.*fn4 In this case, however, Ms. Davis was charged with both assault and a jury-demandable offense, and she should have received a jury trial on both counts. The statute is unambiguous in this respect, and the government does not suggest that appellant waived her right to a trial by jury.*fn5
Even though the statutory mandate is clear, defense counsel had an obligation to object because the error could have been avoided if brought to the court's attention. Therefore, the government argues, and appellant concedes, that the plain error standard of review applies. We agree. The plain error rule emphasizes the importance of encouraging "'all trial participants' -- including defendants -- to 'seek a fair and accurate trial the first time around....'" Foreman v. United States, 633 A.2d 792, 797 (D.C. 1993) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)). In other words, "the value of finality requires defense counsel to be on his toes, not just the judge...." United States v. Vonn, 535 U.S. 55, 73 (2002). Thus, the plain error rule is properly applied even when the court's obligations are made clear in a rule or statute. See, e.g., Vonn (plain error standard applied to court's failure to ...