Cole v. United States

Decision Date24 May 1984
Docket NumberNo. 79-1231.,79-1231.
PartiesLeroylyne COLE, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Karen Knopp O'Konski, Washington, D.C., for appellant.

Thomas E. Zeno, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

This appeal presents questions of first impression concerning this court's review of criminal convictions in cases where some portion of the trial transcript is lost, stolen, or otherwise unavailable.1

A jury found appellant guilty of carrying a pistol without a license. D.C.Code § 22-3204 (1973). After a notice of appeal had been filed, the court reporter's notes of appellant's two-day trial were lost. This court returned the case to, the trial court and ordered the parties to prepare a substitute statement of the evidence presented at trial. This substitute statement is now part of the record on appeal. Appellant challenges her conviction on the grounds that: (1) the substitute statement of trial proceedings and evidence is insufficient to permit meaningful appellate review; and (2) the substitute statement reveals that appellant lawfully possessed an unlicensed pistol in the District of Columbia, based on a recognized exception to D.C.Code § 22-3204 (1973). Because we agree with appellant's first contention and reverse her conviction on that ground, we need not consider the second issue presented.

I. FACTS AND PROCEEDINGS

A two-count indictment filed April 25, 1979, charged appellant with assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1973), and carrying a pistol without a license, D.C.Code § 22-3204 (1973). Appellant's case was reached for trial on September 28, 1979, and on October 3, 1979, the jury found her guilty of carrying a pistol without a license. The jury returned verdicts of not guilty on the assault with intent to kill while armed charge and on the lesser-included offense of assault with a deadly weapon. The trial judge sentenced appellant to one year's imprisonment, suspended execution of the sentence, and placed appellant on probation for one year.

Following appellant's conviction and sentencing, her trial counsel, Paul Regan, filed a timely notice of appeal. Regan indicated that he intended to challenge two trial court rulings: (1) the trial judge's denial of a motion for judgment of acquittal, based on appellant's claim of insufficiency of the evidence; and (2) the trial court's decision to allow into evidence "an impeaching document without the government movant establishing a foundation for its introduction." Regan also requested preparation of a transcript of the entire trial.

Ordinarily, as soon as a transcript of the trial proceedings is prepared, it is filed with this court and a briefing schedule is set. In this case, however, no transcript was ever filed, and, on December 17, 1981, this court returned the matter to the trial court. At this point, over two years after entry of the judgment, the trial court discovered that the reporter's notes of appellant's trial had been lost and that there was no way to produce a verbatim transcript of the trial proceedings. This court then ordered preparation of a substitute statement of the evidence and proceedings pursuant to D.C. App.R. 10(j).

During this same period (late 1981), a conflict of interest developed between appellant and her attorney, Mr. Regan. Regan petitioned the trial court for permission to withdraw as appellant's counsel. On June 7, 1982, the trial court granted Regan leave to withdraw, with the understanding that he would cooperate in the preparation of a substitute statement of the evidence and proceedings. On June 6, 1983, this court appointed David Levitt to represent appellant and instructed him to prepare a Rule 10(j) statement "in consultation with appellant."

Unfortunately, Levitt was unable to obtain appellant's assistance in preparing the Rule 10(j) statement. Appellant had completed her probation well before the need for a substitute statement was discovered, and Levitt's efforts to contact her were fruitless. Levitt did, however, prepare a statement based on information obtained from conversations with Regan and with the Assistant United States Attorney who prosecuted appellant's case.

In accordance with Rule 10(j) procedures, Levitt filed copies of the substitute statement with the Superior Court and with the Office of the United States Attorney. Shortly thereafter, Levitt asked to withdraw from the case, and the counsel now representing appellant was appointed to brief and argue the appeal. The government submitted no objections to the substitute statement of evidence and joined with appellant's new counsel in a stipulation for settlement and approval of the statement. Specifically, counsel for both parties stipulated that the statement was "accurate" and "sufficient to allow counsel to argue the case before the Court of Appeals." The trial judge who had presided at appellant's trial accepted the stipulation for settlement, approved the Rule 10(j) statement, and ordered its inclusion in the record on appeal.

The substitute statement of evidence is approximately two and one-half doublespaced pages long. It briefly summarizes:

(1) the direct testimony of each of the three witnesses who appeared at trial and the cross-examination of one of the witnesses;

(2) the documentary evidence presented by both the government and the defense; and

(3) the closing arguments for both sides. There is no reference to the cross-examination of two of the witnesses and no summary of the trial court's instructions to the jury.

The statement indicates that the government called two witnesses at trial. First, appellant's estranged husband testified on direct examination that when he returned home on March 6, 1979, appellant approached him outside his home and pointed a pistol at him. He further testified on direct that, as he ran away from appellant, she fired a shot but he was not hit. The government called its second witness in an effort to corroborate this story. This witness testified that he was in the vicinity of the alleged assault on the date and at the time in question, and that he heard "what might have been the sounds of shots." The statement reflects that, on cross-examination, this witness admitted that the noises could have been caused by sources other than a gun. In addition to these two witnesses, the government submitted documentary evidence which established that, although appellant possessed a Maryland license for a pistol, she was not licensed to carry a pistol in the District of Columbia.

After the trial court denied appellant's request for a judgment of acquittal, appellant testified on her own behalf. According to the substitute statement, she told the court that she had been living in Maryland since separating from her husband. She returned to the family home in the District of Columbia on March 6, 1979, to speak with her husband about his failure to make child support payments. The statement indicates appellant admitted that she brought a pistol with her from Maryland and that she took that pistol from her purse and pointed it at her husband. She denied, however, that she fired the gun at her husband.

Appellant further testified that her husband had become violent with her on many occasions in the past. Fearing that a confrontation over child support might bring out these tendencies anew, she brought the pistol with her for the purpose of self-defense. She added that, after a brief conversation, her husband attempted to assault her and that it was this attack that provoked her to produce the pistol and point it at him. The defense also submitted documentary evidence to establish that the property on which this confrontation occurred was owned by the appellant and her husband as tenants by the entirety.

II. THE RIGHT TO A TRIAL RECORD SUFFICIENT TO PERMIT MEANINGFUL APPELLATE REVIEW

In all but the most minor of criminal matters, a defendant convicted of a crime in the Superior Court is entitled to have this court review that conviction. D.C.Code § 11-721(b) & (c) (1981). In order to make this, court's review meaningful, the Superior Court is required to keep a simultaneous, verbatim record of all trial court proceedings. Super.Ct.Crim.R. 36-I(a). Moreover, a verbatim transcript of pertinent portions of the trial must be included in the record on appeal. D.C.App.R. 10(c), 23(b). These court rules accordingly confer on a criminal defendant a right to have all trial court proceedings recorded and to have a verbatim transcript prepared and made available to the defendant and this court, to the extent necessary to facilitate an appeal.2

Although there is no indication that appellant was denied the right to have her trial simultaneously recorded, she has been denied the opportunity to review a transcript of her trial and to place a transcript before this court. The government, however, urges this court not to adopt a per se rule requiring reversal in all cases where the appellant is not able to make use of a transcript on appeal. It contends that the supplemented record in this case is sufficient to assure the court that no reversible error occurred at trial, and thus argues that the lack of a transcript should be treated as harmless error.

There is precedent in this jurisdiction cautioning against the affirmance of convictions on harmless error grounds in cases where an important portion of the transcript is not available on appeal. United States v. Workouff, 137 U.S.App.D.C. 263, 264-65, 422 F.2d 700, 701-02 (1970) (per curiam).3 In Workouff, the trial judge failed to have a court reporter present when he interrupted the jury's deliberations and gave a supplementary jury...

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