JESUS A. HERNANDEZ, APPELLANT,
UNITED STATES, APPELLEE
Argued September 25, 2015
Appeal from the Superior Court of the District of Columbia. (DVM-2124-13). (Hon. Fern Flanagan Saddler, Trial Judge).
Geneva G. Vanderhorst for appellant.
Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
McLeese, Associate Judge:
Appellant Jesus A. Hernandez challenges his assault conviction, arguing that the evidence was insufficient and that the trial court failed to conduct an adequate inquiry into whether the United States was required to disclose notes taken by a prosecutor during an interview of a government witness. We hold that the evidence was sufficient, and we remand for further inquiry into the disclosure issue.
The evidence at trial was as follows. At the time of the offense, Mr. Hernandez was living with his girlfriend, Jemima Argueta-Avila. They went to a party together, and Ms. Argueta-Avila saw Mr. Hernandez drink a beer during that time. Ms. Argueta-Avila left without Mr. Hernandez, to visit a neighbor. After she left, Mr. Hernandez called her on the phone more than five times over a period of about twenty minutes, but she did not answer the calls. When Ms. Argueta-Avila left her neighbor and went outside into an alley, she saw Mr. Hernandez, who followed her. She ran ahead, because she was afraid that Mr. Hernandez would be angry at her for not returning his calls. Ms. Argueta-Avila also felt angry and wanted to get home so that the couple could talk there.
Ms. Argueta-Avila testified that Mr. Hernandez grabbed her shirt, causing it to tear, and pushed her, causing her to fall. Ms. Argueta-Avila suffered scrapes and other minor injuries from the fall. She told the police that Mr. Hernandez did not assault her, that he had grabbed her by the shirt, and that she had fallen. When she told the police that Mr. Hernandez did not assault her, she meant that he did not hit her. Ms. Argueta-Avila did not see anyone else in the alley that evening.
Mr. Andre Hawthorne testified that he saw the incident as he was walking through the alley on the way home from work. At first, it appeared to Mr. Hawthorne that Ms. Argueta-Avila was trying to get around Mr. Hernandez, who was blocking her path. When Mr. Hawthorne asked if they were all right, Mr. Hernandez said yes but Ms. Argueta-Avila did not answer. Ms. Argueta-Avila appeared scared to Mr. Hawthorne. Mr. Hawthorne walked past but continued to keep an eye on the couple. He saw Mr. Hernandez's hand on Ms. Argueta-Avila's arm, and Mr. Hernandez appeared to be trying to persuade Ms. Argueta-Avila to do something. Mr. Hawthorne was concerned about what he had seen, so he called 911. While he was on the phone, watching from a distance of about sixty to seventy feet, Mr. Hawthorne saw Mr. Hernandez choke Ms. Argueta-Avila and then saw Ms. Argueta-Avila fall to the ground. The United States introduced a recording of Mr. Hawthorne's 911 call into evidence, but that recording was not transcribed during trial and has not been made part of the record on appeal.
Mr. Hawthorne had previously been convicted of armed robbery, robbery, assault with a dangerous weapon, and obstruction of justice. Mr. Hawthorne never saw Mr. Hernandez hit, shove, or push Ms. Argueta-Avila. Mr. Hawthorne did not speak to the police who arrived on the scene about what he had seen.
Officer Benjamin Rubin responded to the incident within about a minute of receiving a call about an assault in progress. When he arrived, he saw Ms. Argueta-Avila sitting on the ground, with Mr. Hernandez standing over her. Ms. Argueta-Avila was pretty frantic and was shaking and crying. Her shirt was ripped, and she had scratches on her chin and arm. Mr. Hernandez appeared calm.
After realizing that neither Mr. Hernandez nor Ms. Argueta-Avila spoke English, Officer Rubin called for a Spanish-speaking officer. Officer Jose Hernandez arrived within three minutes. Officer Hernandez testified that Ms. Argueta-Avila was crying hysterically and had a torn shirt and scratches on her chin and arm. Ms. Argueta-Avila was generally unwilling to say what had happened. Ms. Argueta-Avila did say, however, that she was very afraid of Mr. Hernandez. She also indicated that " every time he drinks he does this." Officer Hernandez understood the latter statement to mean that Mr. Hernandez became aggressive when he drank alcohol and that he had " put his hands on" Ms. Argueta-Avila in the past. Although his testimony on the point was equivocal, Officer Hernandez ultimately testified that Ms. Argueta-Avila said that Mr. Hernandez did not assault her. Officer Hernandez smelled alcohol on Mr. Hernandez's breath.
Based on this evidence, the trial court found Mr. Hernandez guilty. The trial court credited Ms. Argueta-Avila's testimony. Specifically, the trial court found that Mr. Hernandez grabbed Ms. Argueta-Avila's shirt and pushed her. The trial court accepted Ms. Argueta-Avila's explanation that, when she told the police that Mr. Hernandez did not assault her, she meant that he had not hit her. The trial
court also explained that the testimony that Ms. Argueta-Avila felt angry did not undermine the conclusion that she was assaulted.
Turning to Mr. Hawthorne, the trial court found that he was an unbiased witness. The trial court credited Mr. Hawthorne's testimony that Ms. Argueta-Avila had appeared frightened and that Mr. Hawthorne saw Mr. Hernandez choking Ms. Argueta-Avila. The trial court also relied on Mr. Hawthorne's statements in the 911 call that Mr. Hernandez was choking Ms. Argueta-Avila. Finally, the trial court credited the testimony of both police officers as to Ms. Argueta-Avila's demeanor and injuries. After making these findings, the trial court concluded that " the Government met its elements in ...