Green v. Green
| Decision Date | 02 June 1994 |
| Docket Number | No. 92-FM-1483.,92-FM-1483. |
| Citation | 642 A.2d 1275 |
| Parties | Larry Jerome GREEN, Appellant, v. Maryleah GREEN, Appellee. |
| Court | D.C. Court of Appeals |
Christine M. Lee, with whom Shawn Moore, was on the brief, for appellant.
Laura A. Foggan, with whom Vicki L. Robinson and John C. Yang, were on the brief, for appellee.
Before TERRY, FARRELL, and KING, Associate Judges.
Appellant Larry Jerome Green ("the husband") appeals from an adjudication of contempt in the Family Division, Domestic Relations Branch, for violating a civil protective order ("CPO") requiring him to stay away from appellee Maryleah Green ("the wife") and their children. The husband contends his due process rights were violated because the wife's attorneys acted as the prosecuting attorneys during the intrafamily contempt proceedings and because the trial judge denied his request for witness statements pursuant to the Jencks Act.1 We conclude that the intrafamily contempt proceeding against the husband was properly conducted and that the trial judge correctly ruled that the Jencks Act does not apply to witness statements under the circumstances presented here. Accordingly, we affirm.
The wife first petitioned for a civil protection order on February 26, 1991, alleging that when she was eight months pregnant the husband hit her head against a brick wall several times, threw her down a flight of stairs, and kicked her in and around the abdomen while threatening to kill her and the unborn child. During this incident, the husband also stabbed the wife's sister, who had attempted to intervene in defense of the wife. On the same day, the trial court entered a temporary CPO, ordering that the husband not "abuse, assault, molest, touch, harass, threaten or speak to, telephone, or attempt to ascertain the telephone number of the wife and the couple's two children." The husband was also ordered to stay away from the family, the marital home, and the children's school. On March 7, 1991, the trial court entered a twelve-month CPO, consented to by the parties, imposing conditions essentially the same as those included in the temporary CPO.2
On March 6, 1992, the wife sought an extension of the March 7, 1991, CPO.3 The trial court granted that request on April 22, 1992, extending the CPO for an additional twelve months. After the husband appeared at the wife's residence and threatened her in August of that year, the wife moved, through counsel, to adjudicate the husband in contempt for violation of the April 22, 1992, CPO.
On October 16, 1992, a hearing on the contempt motion was held. After the wife's direct examination, counsel for the husband requested both a continuance and the production of so-called Jencks material, consisting of statements the wife made to District of Columbia Metropolitan Police officers and a message the wife had left on her attorney's answering machine. The trial judge ruled:
Jencks ... does not apply, ... the petitioner is not the government, the petitioner is not the prosecutor, there is no applicability of the Jencks Act or Super.Ct.Crim. Rule 26.2 to the wife. Even if it did apply the Court is of the opinion that the wife's statement to the police officer is not something that would be in the exclusive control of the Government/petitioner. The "statement" was a phone call to the police department and would not be covered by Jencks and the phone call to the lawyer, I believe, is a privileged communication and the husband would not be entitled to it. So the Court is convinced that there is no entitlement to the material under Jencks.... This Court reads Super.Ct.Intra-Fam. Rule 8 as controlling entitlement to discovery in a contempt proceeding.
Later in the proceeding, during the course of a colloquy among the trial judge and counsel concerning the propriety of a continuance, the husband's counsel acknowledged that she "realized now that Jencks doesn't apply." Thereafter, the trial judge granted a continuance in order for the husband's counsel to submit interrogatories to the wife and to subpoena four police officers.
On the continued date, the husband's motion for reconsideration of the court's findings with respect to the Jencks issue was denied. The husband also moved to disqualify the wife's counsel from "prosecuting criminal contempt." The trial judge found that:
the wife's counsel are not prosecutors but merely counsel assisting the wife.... I note that in most contempt adjudications before the Court that I have presided over, most of the petitioners do not have counsel, and that they are before the Court seeking the assistance of the Court to effect the orders that have been previously given by the Court and I believe the language of our Court of Appeals in the Cloutterbuck v. Cloutterbuck, 556 A.2d 1082 (D.C.1989) decision drives home the importance of making ... access to this Court available to pro se litigants.... So I don't believe that the wife is a prosecutor in the first instance and the Super.Ct.Intra-Fam. Rule 12C provides that "the Court may request that Corporation Counsel represent the petitioner". The corollary to that must be that the petitioner need not have counsel and in practice that's what usually happens, that the petitioner does not have counsel, so it is this Court's opinion that the petitioner's counsel are here to assist the petitioner and are not prosecutors and the Court is not going to disqualify the wife's counsel from participating in this proceeding.
Thereafter, the trial judge permitted the husband's counsel to voir dire the wife in order to determine which police officers might have taken statements from her regarding the August 22, 1992, incident. Following that examination, the trial judge granted a further continuance in order for the husband's counsel to subpoena the police officers with whom the wife had spoken. Counsel, however, was only able to serve one of the officers, who appeared and testified at the contempt proceedings held two days later. On October 23, 1992, the trial judge adjudicated the husband in contempt for violating the terms of the April 22, 1992, CPO and sentenced him to thirty-days incarceration. This appeal followed.4
The husband contends that he was denied a "fundamental" constitutional right to a public prosecutor when the trial judge permitted the wife's counsel to participate in the intrafamily contempt proceedings.
D.C.Code § 16-1003(a) (1989) provides:
Upon referral by the United States attorney, or upon application of any person or agency for a civil protection order with respect to an intrafamily offense committed or threatened, the Corporation Counsel may file a petition for civil protection in the Family Division. In the alternative to referral to the Corporation Counsel, a complainant on his or her own initiative may file a petition for civil protection in the Family Division.
Pursuant to the Intrafamily Proceedings Rules, a complainant may enforce a CPO by filing a motion for contempt and proceeding through counsel, or pro se, with a contempt hearing in the Family Division. See Super.Ct.Intra-Fam.R. 7(c) and 12; see also D.C.Code § 16-1005(f) (1989) ().
In support of his argument, the husband relies on Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 809, 107 S.Ct. 2124, 2138, 95 L.Ed.2d 740 (1987), where the Supreme Court held, in the exercise of its supervisory authority, that "counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." (Footnote omitted.) We conclude, even assuming we are bound to follow Young, that it simply does not apply to the circumstances presented by this appeal.5 The Young Court was reviewing the prosecution of a criminal contempt, pursuant to FED. R.CRIM.P. 42(b), by private counsel for the plaintiff who had been appointed by the trial court for that purpose.6See id. at 793-802, 107 S.Ct. at 2130-2135. The criminal contempt proceedings in Young were the culmination of an elaborate "sting" operation, also conducted by the plaintiff's counsel, investigating the defendants' alleged violation of an injunction prohibiting them from manufacturing counterfeit leather goods. Id. at 791-92, 107 S.Ct. at 2129-2130. In announcing its rule, the Young Court was primarily concerned with the financial and tactical conflicts of interest presented by using plaintiff's counsel to prosecute the criminal contempt charges. Id. at 805-06, 107 S.Ct. at 2136-2137.
In contrast, the instant criminal contempt arose out of an intrafamily proceeding, conducted pursuant to local statutes and rules designed by the Council of the District of Columbia ("the Council") to expedite the application and, if necessary, the enforcement of CPOs in cases involving domestic violence. See generally D.C.Code § 16-1003(c), -1005(f); see also Super.Ct.Intra-Fam.R. 7(c) and 12. Those provisions reflect a determination by the Council that the beneficiary of a CPO should be permitted to enforce that order through an intrafamily contempt proceeding.7 Further, this case does not present the potential for discovery abuses and financial conflicts of interest the Young Court addressed because discovery under the Intrafamily Proceedings Rules is limited to the particular circumstances of the contumacious behavior.
We agree with Judge Geoffrey M. Alprin's observation in Castellanos v. Novoa, 117 Daily Wash.L.Rptr. 1189, 1194 (D.C.Super.Ct. April 27, 1989), which involved circumstances virtually identical to those presented in the instant appeal:
In most intrafamily matters which have reached the contempt stage, petitioner has been previously determined to be a victim of domestic violence and now seeks the court's assistance, through the statutorily authorized criminal contempt process, to protect her from respondent because he allegedly failed to...
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