Appeal from the Superior Court of the District of Columbia (CMD-16585-08) (Hon. Anthony C. Epstein, Trial Judge)
The opinion of the court was delivered by: Terry, Senior Judge:
Submitted December 15, 2009
Before FISHER, Associate Judge, and BELSON and TERRY, Senior Judges.
After a non-jury trial, appellant was convicted of assault. On appeal from that conviction, she argues that the government's failure to provide her with a digital video recording from the bus on which the assault took place constituted a discovery violation. Her assertion is that because the bus was owned and operated by the Washington Metropolitan Area Transit Authority ("WMATA" or "Metro"), a government agency, the recording was therefore in the possession of the government and the prosecution was required to preserve and produce it. We disagree and accordingly affirm the conviction.
Patricia Doby testified that on July 19, 2008, at approximately 2:00 p.m., she boarded an X2 Metro bus in Northeast Washington and took a seat near the front of the bus, two seats behind the driver. Appellant, who was sitting three seats away, was cursing out loud at no one in particular and "talking about men fucking women, women fucking women, and all that." When Ms. Doby said to her, "Can you please stop? There are kids on the bus," appellant stood up and withdrew a large knife from her purse. Appellant approached "really close" to Ms. Doby with the knife and said, "Who the fuck are you talking to, bitch?" Ms. Doby replied, "Why are you talking to me like that? I didn't disrespect you; you disrespected me. Why are you disrespecting me?" A man who had been sitting at the back of the bus approached the two women, stepped between them, and told Ms. Doby that she should get off of the bus. Ms. Doby alighted when the bus stopped at the Hechinger Mall on Benning Road. Appellant also got off the bus and began to walk away. Ms. Doby, meanwhile, saw a police car driving through the mall parking lot. She flagged it down, told Officer Jorge Marcucci what had happened on the bus, and pointed to appellant. The bus driver also reported the incident to the officer, as did two other passengers who had alighted with Ms. Doby. Ms. Doby and the two other passengers then reboarded the bus, and it resumed its journey.
Officer Marcucci testified that a bus driver flagged him down while he was driving his police cruiser through the Hechinger Mall parking lot. The driver informed him that appellant had threatened one of the passengers in the bus and tried to cut her with a knife. After hearing the reports of the bus driver, Ms. Doby, and the other two passengers, Officer Marcucci "went after" appellant and brought her back to his cruiser. He told her that she was not under arrest but was being "detained until I could solve what's going on."*fn1 He described appellant as "loud, boisterous," and "highly intoxicated."*fn2 After other officers arrived in response to his call for backup assistance, Officer Marcucci left appellant with them, then got into his car and followed the bus. He caught up with it a few blocks way, stopped it, and brought Ms. Doby back to the mall parking lot, where she identified appellant once again. Officer Marcucci then formally placed appellant under arrest. One of the other officers searched appellant's purse and found a knife in it, which he seized.
Appellant testified in her own defense. She said that she had been on the bus on July 19, but that she had drunk only one beer about two hours earlier and was not intoxicated. She denied using any vulgar or obscene language on the bus and denied threatening anyone with a knife. She admitted, however, that she had a knife in her purse, which she had allowed the officers to remove. Finally, she said that she had not seen Ms. Doby on the day of her arrest or at any time before the trial.
About three weeks before trial, appellant filed a motion to compel the government to produce any video or audio recording that might have been made on the bus during the incident. When the prosecutor informed the court at the beginning of the trial that there was a digital video recorder on the bus, but that the video was erased after eighty hours pursuant to established WMATA policy, defense counsel moved for the case to be dismissed. Counsel argued that the government had violated Rule 16 of the Superior Court Rules of Criminal Procedure by failing to preserve the video which was made on the bus during the incident. The trial court reserved ruling on the motion to dismiss until after the conclusion of the defense case, at which point the court denied the motion. It found that while the recording was material to appellant's defense, it was not in the possession of the government, and therefore its production was not required under Rule 16.
The court also found appellant guilty of assault and sentenced her to ten days in jail. Execution of that sentence was suspended, and appellant was placed on probation for six months. The court further ordered appellant to pay $50 to the Victims of Violent Crime Compensation Fund. This appeal followed.
Appellant argues that the maintenance of WMATA's surveillance and recording system, intended to ensure the safety of passengers on its buses, is a governmental function, and consequently the government has an obligation to preserve and disclose recordings that disclose or involve any criminal activity that occurs on a Metro bus. She contends that the government violated Criminal Rule 16 when it neglected to preserve the video recording and provide it to her upon request.
In the District of Columbia, the duty to preserve discoverable evidence dates back at least forty years, to the leading case of United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642 (1971).*fn3 In Bryant the court held that certain tape recordings which had been made by an agent of the Bureau of Narcotics and Dangerous Drugs - and had somehow been "lost" after they were made and had never been turned over to the prosecutor - were in the "possession" of the government for the purposes of Rule 16, the Jencks Act,*fn4 and Brady v. Maryland.*fn5 Most importantly, the court also held that the Rule 16 duty to disclose includes an obligation to preserve vital evidence within the government's possession before prosecution begins. See id. at 140-141, 439 F.2d at 650-651; accord, e.g., Allen v. United States, 649 A.2d 548, 553 (D.C. 1994) ("[t]he duty to produce discoverable evidence entails the antecedent duty to preserve that evidence"). In this case the government does not dispute that the video recording was material to the preparation of appellant's defense; therefore, the only issue before us is whether the recording was ever within the government's possession. If it was not, there can be no Rule 16 violation. See Guest v. United States, 867 A.2d 208, 212 (D.C. 2005) ("[i]f the government does not possess the requested information, there can be no Brady violation"); Velasquez v. United States, 801 A.2d 72, 81 (D.C. 2002) ("there is no due process violation since the records were not in the possession of the government").*fn6
Rule 16 provides that, upon the request of the defendant, the government must "permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody, or control of the government, and which are material to the preparation of the defendant's defense . . . ." (Emphasis added.) We have held that the duty of disclosure applies not only to the prosecutor's office, but also to all other investigative agencies of the government. See, e.g., Robinson v. United States, 825 A.2d 318, 326 (D.C. 2003); accord, Bryant, 142 U.S. App. D.C. at 140, 439 F.2d at 650 ("[t]he duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies"). Thus we must determine whether possession of the video recording in this case by the Washington Metropolitan Area Transit Authority constitutes "possession" by an "investigative agency" within the meaning of Robinson, Bryant, and similar ...