Romero v. U.S., No. 03-CM-886.

• Decision Date: 11 September 2008
• Docket Number: No. 03-CM-886.
• Citation: 956 A.2d 664
• Parties: Oscar ROMERO, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

956 A.2d 664

Oscar ROMERO, Appellant v. UNITED STATES, Appellee.

No. 03-CM-886.

District of Columbia Court of Appeals.

Argued April 20, 2007.

Decided September 11, 2008.

Appeal from the Superior Court of the District of Columbia, (M-11196-02) (Hon. Gerald I. Fisher, Trial Judge).

Kenneth H. Rosenau, Washington, appointed by the court, for appellant.

Daria J. Zane, Assistant United States Attorney, for appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and Roy W. McLeese, III, John P. Gidez, Laura R. Bach, and Lisa H. Schertler, Assistant United States Attorneys, were on the brief for appellee.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and TERRY, Senior Judge.

TERRY, Senior Judge:

After a non-jury trial, appellant Romero was convicted of one count of misdemeanor sexual abuse and one count of lewd, indecent, or obscene acts.¹ A few months after appellant noted this appeal from the judgment of conviction, his counsel filed in this court a motion to stay the briefing schedule and remand the record to the trial court "for reconstruction of the proceedings." The motion stated that the existing record was insufficient to permit meaningful appellate review because some parts of the trial transcript were missing. This court stayed the appeal on September 28, 2004, so that efforts could be made pursuant to D.C. Ct.App. R. 10(c) to reconstruct those portions of the trial proceedings that had not been recorded because of a malfunction of the recording equipment in the courtroom.

At a hearing several months later, the trial judge took testimony from the trial prosecutor, heard argument from both parties, and read into the record his own notes which he had taken during trial.² Upon completion of these Rule 10 proceedings, this court vacated the stay, and the appeal proceeded to briefing and oral argument. Appellant's only contention on appeal continues to be that the record is insufficient to permit meaningful appellate review. We disagree and therefore affirm the judgment.³

I

A. The Trial

In its case in chief, the government presented only the testimony of the complaining witness, a sixteen-year-old girl whom we shall call Elena (not her real name),⁴ and that of Michaela Kelaghan, an employee of the Latin American Youth Center, who had been assigned to work with Elena. In the only portion of Elena's direct testimony that was transcribed, she made a few introductory statements indicating that she had been living with her uncle (appellant), her aunt (Claudia Romero), and her young cousin in September 2002, because of a "problem" at home with her own mother. On cross-examination, in the only portion of her testimony that was transcribed, she agreed that appellant and her aunt had opened up their home to her, and that they were generally supportive of her.

Ms. Kelaghan testified that her work with Elena was mainly focused on completing her enrollment in school. However, during their meeting on September 27, 2002, Elena became agitated and told Ms. Kelaghan about two incidents involving appellant that had recently occurred. First, Elena reported that several days earlier, on or about September 15, while she was looking out the kitchen window, appellant had hugged her from behind, grabbed her breast, and "pushed his genitalia into her back." Second, she said that about a week later, approximately September 22, while she was asleep on the couch in the living room, appellant had come into the room, "lifted the covers, lifted her nightdress, and fondled her genitalia," and then dropped the towel that he was wearing and exposed himself to her. Elena was "visibly shaken" after recounting these events. Ms. Kelaghan explained to Elena that she would have to call the police to report these incidents, even though Elena never asked her to report them. Ms. Kelaghan was cross-examined, but her testimony was not significantly impeached.

The defense called Claudia Romero (appellant's wife), Rosa Hernandez, a "good friend" of Elena, and Pilar Romero (Elena's mother and appellant's sister). The record contains none of the direct examination of Claudia Romero, but it does contain a verbatim transcript of her cross-examination, redirect, and recross. On cross-examination, Mrs. Romero said that the day before Elena had spoken with "the social worker" (presumably Ms. Kelaghan), Elena had told her about the September 22 incident with appellant. Mrs. Romero testified that she had told Elena that she did not believe her and stated that she had never seen appellant do any of the acts described. She admitted, however, that on that date appellant had left the bedroom at about 11:00 p.m. to get a glass of water, and that he would have had to pass through the living room, where Elena was sleeping, in order to get to the kitchen. As for the incident on September 15, Mrs. Romero was certain that she and appellant and their daughter were shopping at a mall all day on that date, but she conceded that she had not kept any receipts from her purchases. The complete testimony of the other two defense witnesses was transcribed and is included in the record, but neither witness testified specifically about the two incidents in question.

In rebuttal, the government called a police investigator, Maria Flores, whose testimony was also transcribed in its entirety. Ms. Flores testified that when she interviewed appellant about the September 22 incident, he said that he had slapped Elena on the butt while she was lying on the couch because she was "sleeping with her legs opened," and that he had been wearing underwear under the towel that was wrapped around his waist. Ms. Flores also stated that when she interviewed Elena's mother, the mother told Ms. Flores that she had no reason to disbelieve what Elena was saying.

At the conclusion of the trial, the court made oral findings in which it found Elena "to be a credible witness." The court questioned the credibility of Rosa Hernandez, finding her generally "confused" about the dates of certain events, and specifically discredited Claudia Romero's testimony about what had happened on September 15. The court then found appellant guilty of two of the four acts charged: the touching of the breast on September 15, and the exposure of genitalia on September 22.

B. Reconstruction of the Record

During the Rule 10 hearing, the trial judge stated that he had taken detailed notes on Elena's testimony from beginning to end, and that he had a fairly good memory of the case. The judge then read into the record his own notes of Elena's testimony, which essentially mirrored the description of events that was included in Ms. Kelaghan's testimony.

The trial prosecutor was called as a witness. During her direct examination, she testified that defense counsel had made two specific objections, one about the amendment of the date on the charging information, and the other a Battle⁵ objection to Elena's testimony, which were both overruled. She recalled that she herself had made a few evidentiary objections to the cross-examination of Elena, but that those objections were overruled as well. Appellant's trial counsel then cross-examined the prosecutor, and they agreed that there had been three areas of cross-examination of Elena to which she (the prosecutor) had objected, but that the court had overruled her objections. Those areas dealt with Elena's relationship with her mother, her relationship with a married man, and some issue about permanent residency.

The court made a finding that it had allowed broad cross-examination of Elena, especially on the issue of bias, and that the verdicts it had rendered at the end of the trial reflected its detailed findings about the evidence. The court then denied appellant's motion to vacate (see note 3, supra) and continued the hearing for several weeks to resolve any outstanding issues about the transcript.⁶

When the hearing resumed after the continuance, only counsel for the government appeared. Appellant's trial counsel had moved to withdraw from the case, and new counsel had only recently been appointed. The court said that unless it heard otherwise from appellant's new counsel, it would re-certify the case back to this court in light of its findings at the prior hearing. At no point did any party mention that the direct testimony of Claudia Romero was missing from the record or attempt to re-create it in any way.

II

When the sole issue before this court is the accuracy or completeness of the trial transcript, we conduct an independent review of the record to assess its adequacy. As we said in Cole v. United States, 478 A.2d 277 (D.C.1984), we must "examine the supplemented record to determine whether it is adequate to permit appellant a meaningful opportunity to locate and challenge errors at trial, and to permit this court `to exclude the possibility of any error other than harmless error.'" Id. at 285 (quoting United States v. Upshaw, 448 F.2d 1218, 1224 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972)). The appellant in any case bears the burden of presenting us with a record sufficient to show affirmatively that error occurred at trial. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (citing cases); accord, e.g., Outlaw v. United States, 854 A.2d 169, 173 (D.C.2004). Thus, if the trial transcript is incomplete and the appellant does not make any reasonable efforts to fill the gap, as by preparing a statement of proceedings, he forfeits any claim of prejudice resulting from the total or partial absence of a transcript. Cole, 478 A.2d at 283-284. Nevertheless, it is the ultimate responsibility of the trial court to ensure an adequate record for review. Therefore, the trial court may supplement the appellant's statement with its own recollection or trial notes, or by consultation with counsel, or by holding a hearing on the matter. Id. at 284-285.

In this case, appellant is claiming that...