In re DM, No. 07-FS-525.

• Decision Date: 15 April 2010
• Docket Number: No. 07-FS-525.
• Citation: 993 A.2d 535
• Parties: In re D.M., Appellant.
• Court: D.C. Court of Appeals

993 A.2d 535

In re D.M., Appellant.

No. 07-FS-525.

District of Columbia Court of Appeals.

Argued March 25, 2009.

Decided April 15, 2010.

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Enid Hinkes, appointed by the court, for appellant.

Sidney R. Bixler, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for the District of Columbia.

Before REID and GLICKMAN, Associate Judges, and FARRELL, Senior Judge.

GLICKMAN, Associate Judge:

Appellant D.M. and his friend J.R., two juveniles, were charged jointly with arson¹ and felony destruction of property.² They were slated to be tried together. The morning of the hearing, though, the government dropped the charges against J.R. in exchange for his testimony against appellant. Not having any other reason to detain J.R., the trial judge held a brief hearing to review his status and to release him from pretrial custody. The judge then proceeded with appellant's delinquency trial, in which J.R. was the key witness against him, and found him involved in the charged offenses. Appellant's primary claim on appeal is that, by considering and discussing J.R.'s situation, the judge violated ethical canons that prohibit ex parte communications and require recusal when there exists an appearance of partiality on the judge's part. We disagree, and as we find appellant's other claims of error to be meritless, we affirm his delinquency adjudication.

I.

At around noon on April 23, 2007, a fire broke out on in an unused classroom on the third floor of the Taft Diagnostic Center. The school had to be evacuated. The fire did not cause extensive damage, but it destroyed a metal file cabinet and a plastic storage cabinet and blistered and stained the paint on a nearby wall. The fire inspector, Milton Olinger, estimated the total damage at "about $3,000."³ Olinger opined that the fire was set intentionally with an open flame in the metal filing cabinet. Fire investigators found a cigarette lighter in the cabinet.

After the building was secured, the Taft Center's principal, Gregory Matthews, reviewed videotape taken by a motion-activated camera monitoring the third-floor hallway. The video showed J.R. and appellant in the hallway, "engaged in conversation and maybe smoking cigarettes." According to the video, appellant entered and exited the classroom while J.R. remained in the hallway. The two young men left together. The next frames captured by the camera showed firemen arriving to put out the fire; the camera did not detect anyone else in the hallway or entering or leaving the classroom in the interim. Matthews was "100 percent sure" that the two young men in the video were J.R. and appellant. They were charged with arson and malicious destruction of property.

On the morning of trial, however, the government announced that it was dismissing the charges against J.R. Simultaneously, it subpoenaed him to testify against appellant. Because the arson case was the only charge on which J.R. was being held in custody, and because he was already under the court's probationary supervision, the trial judge decided to address his release and review his status before starting the trial. In accordance with the general rule that juvenile proceedings are to be kept confidential,⁴ the judge asked, "Is it possible for appellant to just go into the back for a minute? Would that be okay?" Appellant's counsel responded, "Yes." The judge also asked "if the family members connected with appellant's matter can just wait outside for just a minute." Appellant's counsel was not asked to leave, but she did so.

Once the courtroom was partially cleared, the judge observed that J.R. had a probation review scheduled in approximately two months. Mentioning that she had received a report from J.R.'s probation officer that raised concerns regarding his mother, the judge asked the Child and Family Services social worker present whether there had been "any progress" with regard to J.R.'s placement. The social worker responded that several family members wanted to help his mother ensure that J.R. always had adequate supervision. A representative from Youth Villages chimed in that she had spoken "with the principal at the school ... and he is allowing J.R. back in the school." The judge responded, "Okay," and then inquired whether other "services and supports" had been identified to assist J.R. and his mother. J.R.'s counsel said that his office was working on educational services and that an educational advocate had been appointed. The judge then received information on J.R.'s anticipated enrollment in summer school and his possible participation in summer camp.

After concluding that discussion, the judge asked J.R.'s sister, C.R., "Was there anything that you wanted to add or any additional services that you think would assist ... your brother in being successful at home?" C.R. stated that she and other family members had discussed a "house arrest" or home monitoring arrangement for her brother—"if he on some sort of system that lets him know, `if I don't go home they are going to know I ain't go home.'"—but had decided that "every time he don't come home we're just going to report him," and he would know it. Picking up on C.R.'s idea, the judge asked counsel for J.R. and the government about the possibility of implementing third-party monitoring. With their consent, the judge declared that she would add third-party monitoring as a condition of J.R.'s probation. Next, after confirming that J.R. had been receiving his prescribed medication while he was in pre-trial custody, the judge set a new date for his probation review, "just so we can be sure that J.R. had a good plan in place for the summer." The judge then admonished everyone present to remain in close contact with J.R.'s probation officer and stated that she would "put the order in place for the third party monitoring."

Finally, the judge turned to "the logistics of having J. available" to testify at appellant's trial. Although the prosecutor expressed a desire to defer J.R.'s discharge from custody until he finished testifying, the judge signed an order for his immediate release. The judge then addressed J.R. directly for the first time in the hearing, advising him as follows:

All right. J., J., look at me. You are going to be released today because this case is being dismissed but as you know the prosecutor has just subpoenaed you to testify today before me in this case. Okay? So, ... you are going to be released from the cell block room but you may not leave the Court building. You are going to be released from there and your attorney and your mom are just going to sit with you outside the courtroom. Okay. So, you are not to leave the building under any circumstances until you are excused by me or by ... the Government counsel. Do you understand that? ... Mr. R., do you understand that?

J.R. replied, "Yes." Shortly afterward, the judge began hearing appellant's case.

J.R. was the government's key witness. According to J.R., he and appellant were on the third floor of the Taft Center "skipping breakfast time" and "playing around." Appellant, who was carrying a "torch" (i.e., a cigarette lighter), told J.R. "that he didn't take his medicine" and said, "I wonder if I light sic the school on fire." Appellant walked into one of the classrooms and invited J.R. to follow him. They sat on a sofa and appellant lit a cigar. Appellant then reached inside the file cabinet and set fire to some files inside a black plastic crate. J.R. "tried to stomp it out" and then left the room as appellant was still trying to ignite the files. J.R. called out to appellant and the two left together.

Testifying in his own defense, appellant placed the blame for the fire on J.R. Appellant claimed that J.R. took his cigarette lighter from him and used it to set fire to the papers in the file cabinet. Appellant said he then found a jug of water, poured it into "little science cups," and threw the water on the fire in an effort to extinguish it. Appellant asserted that if he had started the fire, he would have pleaded guilty "because my UUV's are way worse than this, the way I've been hitting cars and all that."

In rebuttal, the government recalled Matthews, the Taft Center's principal, to play the surveillance videotape showing that only appellant entered the classroom where the fire occurred.⁵ The government also called Sergeant Phillip Proctor, a firefighter who had questioned appellant about the fire. Proctor said appellant told him other individuals had set it, "but he did not want to snitch on those individuals and say who they were." Appellant did not tell Proctor that it was J.R. who had started the fire.

In finding appellant guilty, the judge declined to rely on the videotape because she questioned its completeness and believed that J.R. and appellant both were present in the classroom when the fire was set. The issue turned on the credibility of their conflicting accounts, and the judge resolved that issue in favor of J.R. and against appellant:

After considering all of the testimony and having an opportunity to assess the credibility of both Mr. R. and Mr. M as well as the arguments that are being put forth by counsel as to why one or the other might have a motivation or an incentive to fabricate their testimony, I do find that the account of what transpired on April 23rd that was given by J.R. ... was the far more credible account of what transpired.

The judge accordingly found that "the Government has met its burden to establish beyond a reasonable doubt appellant's involvement in both the charges." With respect to the mens rea element of the two charges, the judge specifically found that appellant acted in "conscious disregard" of known and substantial risks to the property and to the security of the building's occupants.

I...