Robinson v. US

• Court: D.C. Court of Appeals
• Writing for the Court: RUIZ, Associate
• Citation: Robinson v. US, 825 A.2d 318 (D.C. 2003)
• Decision Date: 05 June 2003
• Docket Number: No. 98-CM-1204.,98-CM-1204.
• Parties: Anthony N. ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

825 A.2d 318

Anthony N. ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 98-CM-1204.

District of Columbia Court of Appeals.

Argued February 29, 2000.

Decided June 5, 2003.

George E. Rickman, appointed by this court, for appellant.

Karla-Dee Clark, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher and Carmen Kelley, Assistant United States Attorneys, were on the brief for appellee.

Before TERRY, RUIZ and GLICKMAN, Associate Judges.

RUIZ, Associate Judge:

Anthony N. Robinson was convicted of one count of threatening another person in violation of D.C.Code § 22-507 (1996) based on a May 22, 1997, telephone conversation that appellant had with his former girlfriend, Tracey Marie Adams, while he was incarcerated at the Lorton Correctional Complex.

On appeal, Robinson contends that the government had an obligation to preserve and produce Lorton's recording of the telephone conversation, and that its failure to do so constituted a due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violated the Jencks Act, 18 U.S.C. § 3500, and breached the discovery requirements of Superior Court Criminal Rule 16. He argues that the trial court, which found that the government had violated its Jencks obligation, should have dismissed the information or, in the alternative, imposed a more severe sanction on the government than the one it chose. We agree with the trial court's determination that there was a Jencks violation. Given the trial court's choice of sanction, on the facts of record we are constrained to reverse the judgment of conviction and remand with instructions that the case be dismissed.

I. Facts

At trial, Ms. Adams testified that she and appellant had a romantic relationship beginning in April 1996, when she lived with her aunt. That summer she decided to end the relationship because she became afraid of appellant, and she moved to live with her mother to avoid the continual calls and threats appellant had been making while she was at her aunt's home. Some months later, Ms. Adams tried to reconcile with appellant after he agreed to stop being abusive. Within about one month, however, she again ended the relationship.

The following year, on May 22, 1997, the phone rang several times at her mother's home, but Ms. Adams initially did not answer because the telephone caller identification box displayed "Lorton format"—an indication that the call originated from the Lorton Correctional Facility—and she knew it would be appellant. Appellant called several more times before she answered the phone.

The first time Ms. Adams answered the telephone, she stated that she was cooking breakfast and would not accept the call, and hung up. The next time she answered the phone, appellant said, "bitch, I'm gone [sic] to fuck you up" and "bitch, I'm going to kill you." Ms. Adams understood the first statement as a threat that he was going to beat her up; the second one needs no interpretation.

Ms. Adams immediately reported the incident to the Metropolitan Police Department and Officer Gomez responded the same day. While Officer Gomez was with Ms. Adams at her mother's home, the telephone rang, and Ms. Adams informed Officer Gomez that she knew it was appellant because the caller identification box indicated that the call originated from Lorton. With her permission, Officer Gomez answered the telephone and accepted the charges. Ms. Adams did not speak to appellant or listen during that telephone call. Appellant was arrested on a bench warrant on June 30, 1997, some five weeks after Officer Gomez responded to Ms. Adams's complaint and took appellant's call from Lorton.

Ms. Adams was the sole government witness at trial; neither party called Officer Gomez. Ms. Adams testified that from her experience telephone calls originating at Lorton are collect, the recipient must accept the charges for the call to go through, and a recorded message announces that the telephone conversation is being recorded. Appellant presented no evidence but cross-examined Ms. Adams in an attempt to show that her testimony was incredible because she testified that she wanted to end her relationship with appellant, yet had sought to reconcile with him even after the threatening call. In closing, defense counsel argued for acquittal because Ms. Adams was the only witness who testified about the threatening phone call and the trial court had agreed to draw a negative inference from the government's failure to preserve the tape of the call.

II. The Trial Court's Rulings

Two months before trial, defense counsel sought a continuance in order to obtain the tape recording of the call which formed the basis for the threats charge. When the government did not produce the tape, appellant filed a motion to dismiss or for sanctions, claiming that the government had failed in its duty to preserve the tape recording made by the corrections facility. After a pretrial hearing,¹ the trial court ruled that because appellant had not shown that the government's failure to preserve the tape was in bad faith, there was no due process violation, and dismissal of the information was not warranted. It further found that the routine taping of inmates' conversations at Lorton did not convert the Department of Corrections into an investigative agency of the United States, and that appellant was not prejudiced by the destruction of the tape because he could not show it was exculpatory. The trial court deemed that Rule 16 of the Criminal Rules of Superior Court was inapplicable because the tape was "not procured through an interrogation or through police investigative reports." It reserved ruling on appellant's claim that the government had breached its obligation under the Jencks Act, 18 U.S.C. § 3500.

After the government rested at trial, the court considered the Jencks Act claim and ruled that there was a violation. The court explained in its ruling that, while the Department of Corrections was not an investigative agency, so that the obligation to preserve information did not apply to the Department generally, under the facts of this case the conversation was "within the purview of the government." Specifically, "the police officer had an obligation in the Court's mind to attempt to go the extra mile, to get that particular tape [from the agency] and preserve it" because

the Court, based on the testimony of Ms. Adams, [found] that the police knew or should have known and therefore, probably had an obligation [] to preserve testimony to get a copy of that tape. The Court does not consider[] the tape to have been destroyed or the Government to have failed to preserve the evidence. But the Court does consider that it is missing evidence that the Government had the ability to recover.

. . . [T]he Government failed to produce that tape when there is testimony that, in fact, the police knew or should have known that was taped.

As a sanction for the government's violation of the Jencks Act, the court said it would apply "all inferences from that missing evidence against the Government." The trial court then expressly credited Ms. Adams's testimony, found appellant guilty of threatening Ms. Adams during the telephone call, and sentenced him to six months imprisonment.

III. Analysis

Appellant's legal arguments all stem from facts not in dispute: that appellant's phone conversation with Ms. Adams, which originated from Lorton, was recorded, and that the tape was destroyed after thirty days or so by the Department of Corrections—all in the routine course of business.² Appellant argues that the failure of the government to preserve this tape violated his right to due process under Brady v. Maryland, the Jencks Act, and the government's discovery obligations under Superior Court Criminal Rule 16. He argues that the trial court erred by not dismissing the information or imposing severe enough sanctions on the government for failing to obtain and preserve the tape. We address each argument in turn.

A. Due Process

Appellant asserts that the government violated his Fifth Amendment right to due process by failing to properly investigate the crime and retrieve the most direct evidence of the threatening call: the tape recording made by the Department of Corrections in the normal course of its business. Appellant argues that since Officer Gomez responded to the complaint on the same day the threatening conversation was alleged to have occurred, and since he answered the phone at Ms. Adams's home when appellant called, he knew or should have known, as the trial court found, that appellant's calls from Lorton were recorded. He further argues that Officer Gomez, and, by extension, the government, had a duty to retrieve the tape from the Department of Corrections in the course of the investigation, and that the government had plenty of time in which to do so before it was destroyed.

The Supreme Court in Brady held that the Due Process Clause imposes on the prosecution an affirmative duty to disclose exculpatory information to the defense. Under Brady, suppression of evidence material to either guilt or punishment, whether or not there is bad faith on the part of the government, constitutes a due process violation. See 373 U.S. at 87, 83 S.Ct. 1194. We have defined "Brady material" as "exculpatory information, material to a defendant's guilt or punishment, which the government knew about but failed to disclose to the defendant in time for trial." Coleman v. United States, 515 A.2d 439, 446 (D.C.1986). (quoting Lewis v. United States, 393 A.2d 109, 114 (D.C.1978), aff'd after rehearing, 408 A.2d 303 (D.C.1979)). This case does not present the classic Brady situation involving information in the hands of prosecutors which they do not have an incentive to divulge. See United States v. Brooks, 296 U.S.App. D.C. 219, 221, 966 F.2d 1500, 1502 (1992)...