Appeal from the Superior Court for the District of Columbia (FEL-11159-91) (Hon. Craig Iscoe, Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge:
(Submitted October 10, 2012
Before OBERLY and BECKWITH, Associate Judges, and FARRELL, Senior Judge.
Opinion for the court by Associate Judge OBERLY.
Dissenting opinion by Associate Judge BECKWITH at page 8.
Seventeen years after he was convicted of first-degree murder and other armed offenses in connection with a road-rage incident, Gary Freeman‟s convictions were vacated and re-entered to permit him to note an appeal because his trial counsel had failed to do so after Mr. Freeman was sentenced in 1993. Unfortunately, the trial transcripts from Mr. Freeman‟s 1992 trial were no longer available when his motion for appointment of counsel was finally granted, and upon receipt of Mr. Freeman‟s notice of appeal, this court remanded the case to the trial court to permit Mr. Freeman to reconstruct the trial record pursuant to District of Columbia Court of Appeals Rule 10 (c). The "statement of evidence" that Mr. Freeman‟s appellate counsel submitted was a paragraph recitation stating that the "attached records" - which were identical to the documents submitted as part of the government‟s proposed statement of evidence - were the best available means to reconstruct the record (neither Mr. Freeman nor his trial counsel remembered anything about the trial proceedings) and that the records were insufficient to protect appellant‟s right to appeal. The government objected to Mr. Freeman‟s statement of evidence because it "d[id] not include a statement of the evidence presented at trial," and it moved the trial court to approve the 39-page statement of evidence and associated appendices that it had created based on its trial file, the trial judge‟s (Judge Shellie Bowers) detailed contemporaneous notes of the motions hearings and trial proceedings, trial exhibits, the jury instructions, and the pleadings filed in the case. Mr. Freeman did not oppose the government‟s motion, but maintained that the statement of evidence was insufficient to permit meaningful appellate review. The trial judge (Judge Craig Iscoe, to whom the case was assigned after Judge Bowers retired) approved the government‟s statement of evidence and appendices and ordered that it be included in the record on appeal.
Before this court, Mr. Freeman makes no specific claims of error; instead, he argues that the inadequacy of the reconstructed record prevents appellate counsel from reviewing the record for possible errors and prevents this court from engaging in meaningful appellate review. Where an appellant claims no specific error, he is entitled to reversal only if he can demonstrate that "the omission in the transcript prevents new appellate counsel from reviewing a substantial or crucial portion of the trial proceedings to determine whether error occurred." Romero v. United States, 956 A.2d 664, 668 (D.C. 2008) (internal quotation marks omitted); see also Egbuka v. United States,968 A.2d 511, 516 (D.C. 2009).
"When the sole issue before this court is the accuracy or completeness of the trial transcript, we conduct an independent review of the record to assess its adequacy." Romero, 956 A.2d at 667-68. Based on our "independent review," we are satisfied that the reconstructed record would have adequately permitted appellate counsel an opportunity to review substantial and crucial portions of the trial for any error, and that no omitted transcripts or unreconstructed portions meet the "substantial" or "crucial" test. Although "the drafting of the substitute statement of proceedings fell to a judge who did not preside over the trial," Egbuka, 968 A.2d at 518, Judge Bowers had taken detailed and contemporaneous notes, which covered the testimony of all witnesses at the motions hearings and during trial, noting direct- and cross-examinations and exhibits identified by each party, and which included the jury instructions and the length of jury deliberations. In addition to Judge Bowers‟s notes, the reconstructed record includes government exhibits admitted into evidence, Mr. Freeman‟s pretrial suppression and evidence-spoliation motions and the government‟s oppositions to those motions, and a transcript from Mr. Freeman‟s pretrial hearing on his suppression motion. Mr. Freeman‟s appellate counsel also had available to him trial counsel‟s post-trial motion to set aside the verdict and grant a new trial, which identified several possible grounds for appeal.
"Although the loss of an entire trial transcript . . . increases the likelihood that meaningful appellate review will be impossible," Cole v. United States, 478 A.2d 277, 286 (D.C. 1984), here we are presented with an exceptionally detailed reconstruction of the record and yet Mr. Freeman has made no attempt to identify any area of concern that might be raised on appeal. While not dispositive, "an appellant‟s inability to proffer specific prejudicial errors . . . is an important factor in evaluating whether the lack of a verbatim transcript is prejudicial." Cole, 478 A.2d at 286.
Contrary to the views expressed in the dissent, Egbuka and Cole do not call for reversal here. In Cole, the substitute statement of evidence was "approximately two and one-half double-spaced pages long[,] . . . briefly summariz[ing]" the direct testimony of the witnesses at trial and summarizing the cross-examination of only one witness. 478 A.2d at 280. Moreover, the reconstructed record in Cole was based on "post hoc reports of counsel, rather than . . . a contemporaneous account of the trial proceedings." Id. at 282. Likewise, in Egbuka, the reconstructed record of missing transcripts was based, in part, on post hoc reports from counsel and Egbuka, and the entire direct testimony and "significant portions" of the cross-examination of a government witness were among the portions of the trial proceedings that could not be reconstructed at all. 968 A.2d at 514, 517-18. Moreover, the trial judge‟s ten pages of notes "reflect[ed] only that which he thought important to note for his own purposes at trial," id. at 518, in contrast to the trial judge‟s thirty pages of notes in this case, which covered the direct testimony and cross-examination of every witness. Indeed, we are unaware of another reconstructed-record case in which the judge‟s contemporaneous trial notes were as copious and detailed as the ones before us here.
Notwithstanding the comprehensive reconstructed record in this case,
the dissent would reverse because we have no record of the jury
selection, opening statements, and closing arguments, which it
contends are critical to meaningful appellate review.*fn1
Those portions of the trial are not insignificant; however,
we are unwilling to reverse a seventeen-year-old murder conviction
based on the remote possibility that prejudicial error occurred during
one of these phases. Although, as the dissent points out, reversals do
occur from errors during voir dire, opening statements, and closing
statements, what we know from the reconstructed record makes the
possibility of reversible error in this case mere speculation. Unlike
the cases cited by the dissent, in which improper prosecutorial comments
during closing arguments resulted in prejudicial error given the weak
or problematic evidence against the defendants in those cases, the
evidence against Mr. Freeman, as demonstrated in the reconstructed
record, was strong - involving multiple eyewitnesses, two of whom
identified Mr. Freeman as the shooter, and a clear connection to the
vehicle involved in the road-rage incident that led to the shooting.
The possibility that an error occurred during opening statements or
closing arguments, that there was no corrective action, and that the
resulting prejudice was strong enough to overcome the substantial
evidence of Mr. Freeman‟s guilt is too remote to warrant reversal and
remand for a new trial.
Similarly, although serious errors may occur during jury selection - e.g., the striking of jurors for discriminatory reasons - it would be pure conjecture to set aside Mr. Freeman‟s conviction based on that possibility in this case. Jury selection occurred immediately after trial counsel had argued two suppression motions; the possibility that a Batson-type error, post at 15-16 (citing Batson v. Kentucky, 476 U.S. 79 (1986)), or anything resembling it, occurred without objection from defense counsel, who was actively litigating the case, and that any error was left unremedied by the trial court is too unlikely to merit reversal.
For the foregoing reasons, the judgment of the ...