United States v. Perkins, 71-1804.

• Decision Date: 28 May 1974
• Docket Number: No. 71-1804.,71-1804.
• Citation: 162 US App. DC 321,498 F.2d 1054
• Parties: UNITED STATES of America v. Mamie E. PERKINS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

162 US App. DC 321, 498 F.2d 1054 (1974)

UNITED STATES of America v. Mamie E. PERKINS, Appellant.

No. 71-1804.

United States Court of Appeals, District of Columbia Circuit.

Argued April 5, 1973.

Decided May 28, 1974.

Robert A. Gerard, Washington, D. C. (appointed by this court) for appellant.

Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before LEVENTHAL and MacKINNON, Circuit Judges, and WYZANSKI,^* United States Senior District Judge for the District of Massachusetts.

LEVENTHAL, Circuit Judge:

Appellant was arrested on October 5, 1969, and charged with manslaughter. An indictment filed December 30, 1969, charged second-degree murder.¹ A jury trial held in June, 1971, led to a verdict of guilty, and on September 22 appellant was given a sentence of 1 to 20 years. We vacate the judgment and remand for resentencing for manslaughter, unless the Government requests and the court orders a new trial.

I. FACTS

We abbreviate our statement of the facts so as to focus on the problem area of the case, the instructions to the jury—particularly those on malice and selfdefense. On Sunday, October 5, 1969, appellant fired three shots from her revolver at Jimmy L. Dupree ("Honey") in the kitchen of his parents' house, where appellant rented a room. The deceased had come there the previous morning to eat. When admittance was denied him by his parents, apparently because he was drunk, he broke the latch on the back screen door and came into the kitchen. Appellant tried to stop him and was cut on the thumb by his knife. She testified that he had cut her during a struggle; government witnesses testified that the cutting appeared accidental. The police, responding to a call, directed the deceased to leave the house and told appellant to call them if he should return.

Next day, Sunday, Dupree returned to the house.

Appellant testified that the decedent's father had told her not to allow the decedent in the house, but that Dupree pushed her when she carried the trash outside. According to appellant's account, disputed by government witnesses, deceased took out a knife, and pushed her aside. She went to her room, and when she returned to the kitchen she found him cooking food there, in disregard of instructions. He again brandished a knife, and when she asked him to leave, he approached her. When he came close to her, she fired her gun three times.

II. RECONSTITUTING THE INSTRUCTION ON SELF-DEFENSE

Appellant's brief on appeal contended, inter alia, that the instructions erroneously failed to explain that the claim of self-defense may be sustained, even though the defendant used more force than would have seemed necessary or reasonable to a person considering the matter afterward, if a belief as to the need for such force was actually and reasonably entertained by the defendant in the heat of passion. He relied on Perry v. United States, 137 U.S.App.D. C. 260, 262, 422 F.2d 697, 699 (1969) and Inge v. United States, 123 U.S.App.D.C. 6, 356 F.2d 345 (1966).

On October 20, 1972, after appellant's brief was filed, the Government filed in the District Court a motion to correct the record. Subsequently, a corrected record of the jury charge was certified to this court by the trial court. With this correction, appellant's Inge-Perry claim evaporated. However, problems underlying this correction were identified in appellant's reply brief, filed February 28, 1973, which argued that there was no accurate record on appeal.

The following picture emerged from appellant's reply brief and oral argument. Appellate counsel was appointed on January 18, 1972. His efforts to obtain a full transcript from the reporter, Ernest Black, were unavailing. Finally, following an order of this court, a substitute reporter, Laura Ruff, was retained to transcribe Black's stenographic notes, and a transcript was filed in August, 1972. Appellant's brief was filed September 18.

A Government motion of October 12 for correction of the transcript pages 33-34 (portions of the charge) resulted in a District Court order, dated October 25, 1972, for retranscription of those pages within 10 days. There was a delay by Ms. Ruff, and the Government moved this court for extension of time to file its brief. On January 12, 1973, the Government filed in District Court a second motion to correct the record, this time pages 19-35 of the transcript. This motion was granted and on January 17, 1973, the District Court certified a "reconstructed" charge.

However, the underlying correspondence strongly suggested that with respect to some of the jury instructions, the reporter did not take down what the judge actually said in the courtroom, intending instead to copy the pertinent parts of the judge's standard charges at a later time.

After oral argument this court entered an order remanding the record for further proceedings. Our accompanying memorandum stated:

The record indicates that there may have been substantial errors in recording and transcribing verbatim accounts of the trial proceedings as required by 28 U.S.C. § 753(b). Part of the record has been corrected under Fed.R.App.P. 10(e). However, it is not clear exactly how various portions of the record were corrected or reconstructed in any attempt to make it reflect a true account. Thus, it necessarily follows that without the basis being stated upon which each portion of the record was reconstructed, the extent to which various portions of the corrected record can be relied upon is not discernible—and it must be.

Our memorandum inquired as to the extent to which the reporter failed to make a verbatim account of the trial proceedings, and the means used to correct or reconstruct each portion of the record under Rule 10(e).

The District Court was unable to answer completely the inquiries of this court because Mr. Black could not be found, and Ms. Ruff declined to testify on account of a cardiac condition. The District Court filed a memorandum which relied on the judge's own recollection and the testimony of another court reporter, Mr. Thomas K. Dourian, expert in the reading of a reporter's notes. In this memorandum the District Court found that the charge to the jury was reported verbatim by Mr. Black, but that he lacked technical facility in the use of stenotype machine. There was no way to reconstruct how Ms. Ruff reconstructed the transcript. The Court stated that it had reviewed her transcript "which this Court corrected from its book of charges relating to Second Degree Murder, manslaughter and self-defense. The Court's recollection of the Charge as given and trial notes were also utilized."

The District Court included in the record a transcript of its charge as transcribed by Mr. Dourian from Mr. Black's notes. Mr. Dourian testified that these had not been accurately reflected in either the "unreconstructed" or the "reconstructed" charge filed by Ms. Ruff. Mr. Dourian's reconstruction was this: Mr. Black's notes of the charge were substantially verbatim, and although he occasionally left out a word, it could be supplied by context. However, there were certain combinations of letters Mr. Black was unable to produce—e. g., KTS, the usual code for "act"—and so he hit other combinations of letters. But he used substitute combinations consistently, so that they could be interpreted if enough time and effort were devoted to the task. Normally, said Mr. Dourian, reading another reporter's notes is like reading the New York Times, but reading Mr. Black's notes "is like doing the New York Sunday Times crossword puzzle." But he concluded he was able to provide a reconstruction "to a reasonable stenographic certainty."

Appellant contends that he has been denied the transcript required by the Court Reporters Act. Congress has provided, 28 U.S.C. § 753, that the district courts shall appoint reporters, that their qualifications "shall be determined by standards formulated by the Judicial Conference," and that they "shall record verbatim by shorthand or by mechanical means . . . all proceedings in criminal cases had in open court." The finding that Mr. Black lacked technical facility in using the stenotype is, appellant puts it, "the functional equivalent of no record at all."

Appellant relies strongly on United States v. Workcuff, 137 U.S.App.D.C. 263, 422 F.2d 700 (1970). In that case an additional instruction was given the jury some time after it had retired to deliberate, at a time when the court reporter was inexplicably absent. The court held this was a fatal defect requiring a new trial, notwithstanding acquiescence of the defense trial counsel in the instruction. The court declined to apply the harmless error rule, stating (137 U.S.App.D.C. at 264-265, 422 F.2d at 701-702):

In light of the clear language of the statutory mandate, the case with which its requirements can be satisfied, and the crucial importance of the transcript to meaningful appellate review, we think that such exceptions should be narrowly construed * * * There can be little doubt that the absence of a complete and accurate transcript impairs the ability of appellate counsel to protect his client\'s basic rights.

Although in the circumstances of the present case, we do not require a new trial, our disposition should in no way be taken as undercutting the authority of Workcuff. Congress has recognized both the right of appeal and the need for authentic transcripts as a necessary adjunct. These must be preserved.

The need for reliable reporters is obvious. Congress has provided that their qualifications shall be in accordance with standards prescribed by the Judicial Conference. Standards were adopted at the 1944 session² and amended in March 1971 for appointments made thereafter.³

Appellant's supplemental memorandum represents to us that this new standard "has not been implemented due to lack of appropriations." This information was...