Dorm v. United States, 88-630.

• Decision Date: 14 June 1989
• Docket Number: No. 88-630.,88-630.
• Citation: 559 A.2d 1317
• Court: D.C. Court of Appeals
• Parties: Emory H. DORM, Appellant, v. UNITED STATES, Appellee.

Page 1317

559 A.2d 1317

Emory H. DORM, Appellant, v. UNITED STATES, Appellee.

No. 88-630.

District of Columbia Court of Appeals.

Submitted May 18, 1989.

Decided June 14, 1989.

Before FERREN and BELSON, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

Appellant was convicted of taking property without right, D.C.Code § 22-3816 (1988 Supp.), at a bench trial before a hearing commissioner with appellant's consent, see D.C.Code § 11-1732(j)(5) (1988 Supp.); Super.Ct.Crim.R. 117(c) (1987).¹ He contends the commissioner committed reversible error by admitting certain facts into evidence over his objection. Appellant failed to raise this issue before the trial court in his motion for review of the hearing commissioner's findings and judgment. See D.C.Code § 11-1732(k) (1988 Supp.). Accordingly, we must affirm.

Appellant's assertion of error is premised on the admission of certain facts into evidence under the business records exception to the hearsay rule. Appellant, however, never raised this issue before the trial court in his motion for review of the commissioner's findings.² Rather, he only presented to the trial court a claim that the evidence presented at trial was insufficient for conviction — an issue not renewed before this court. Thus, we confront the question whether a defendant who has invoked the trial court's review of a commissioner's findings and judgment by asserting a particular claim of error may raise for the first time in this court a claim of error not presented to the trial court.

In Kwakye v. District of Columbia, 494 A.2d 643 (D.C.1985), this court remanded the case for further proceedings because the trial judge had merely signed his name next to the commissioner's signature on the judgment orders without conducting a meaningful review of the commissioner's rulings. We held that, under D.C.Code § 11-1732 (1988 Supp.) as a "prerequisite to an appeal" to this court, the trial judge must consider "a record sufficient to permit review of the specific issues raised," including the defendant's objections to the "findings and recommendations of the hearing commissioner." Id. at 646. More recently, in Speight v. United States, 558 A.2d 357, 358-60 (D.C.1989), we held that where appellant declined to contest the commissioner's findings and judgment in the trial court — purporting to waive such review — this court had no jurisdiction to consider his appeal.

In the present case, appellant presented an objection concerning sufficiency of the evidence to the trial court, and the trial judge approved the commissioner's findings after reviewing both appellant's and the government's motions, as well as the transcript of the trial. Accordingly, we would have jurisdiction, see Speight, and a sufficient record, see Kwakye, to review that issue if it had been presented to us. The first question we must address, however, is whether we have jurisdiction over the hearsay issue raised for the first time in this court. Arguably, we do not, on the theory that, as in Speight, appellant declined to present it to the trial court and thus should be deemed not to have invoked that court's jurisdiction as a prerequisite to ours. On the other hand, one could argue that, having properly invoked the trial court's jurisdiction over the sufficiency issue, the appeal is properly before this court, whatever issues ultimately may be considered.

We are satisfied that the latter approach is the more reasonable one and that the central question before us, therefore, is a merits question under the statute: whether we may review an issue that a defendant fails to raise in the trial court. We conclude that, absent extraordinary circumstances, if an issue is not presented to the trial court for its considered review, the issue will not be preserved for appeal. We held in Kwakye that, before this court may review an alleged error by a commissioner, the trial court — as the first avenue of appeal — must rule on "a record sufficient to permit review of the specific issues raised." 494 A.2d at 646. We believe this implies, and we now hold, that a defendant ordinarily must present to the trial court all the issues to be raised or else forego...