District of Columbia
Court of Appeals
No. 14-CM-125
JESUS A. HERNANDEZ, JAN 14 2016
Appellant,
v.
DVM-2124-13
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: Fisher and McLeese, Associate Judges; and Ruiz, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby
ORDERED and ADJUDGED that the matter on appeal is remanded for
further inquiry into whether the prosecutor‘s notes are producible as a Jencks statement.
If the trial court finds that the notes contain Jencks material, the trial court should
disclose the pertinent portion of the notes to the defense and permit the parties to brief the
question whether nondisclosure was harmless because the notes could not have been used
to seriously impeach witness, Ms. Argueta-Avila. If the trial court finds that the
nondisclosure was not harmless, the trial court should vacate the judgment and order a
new trial. If the trial court concludes that the notes do not contain Jencks material, or that
any nondisclosure was harmless, the trial court should make the notes part of the record
under seal, supplement its findings, and enter a new final judgment of conviction to
preserve Mr. Hernandez‘s right to seek further appellate review.
For the Court:
Dated: January 14, 2016.
Opinion by Associate Judge John Fisher.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CM-125 1/14/16
JESUS A. HERNANDEZ, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DVM-2124-13)
(Hon. Fern Flanagan Saddler, Trial Judge)
(Argued September 25, 2015 Decided January 14, 2016)
Geneva G. Vanderhorst for appellant.
Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the
brief, for appellee.
Before FISHER and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
MCLEESE, Associate Judge: Appellant Jesus A. Hernandez challenges his
assault conviction, arguing that the evidence was insufficient and that the trial
court failed to conduct an adequate inquiry into whether the United States was
required to disclose notes taken by a prosecutor during an interview of a
2
government witness. We hold that the evidence was sufficient, and we remand for
further inquiry into the disclosure issue.
I.
The evidence at trial was as follows. At the time of the offense, Mr.
Hernandez was living with his girlfriend, Jemima Argueta-Avila. They went to a
party together, and Ms. Argueta-Avila saw Mr. Hernandez drink a beer during that
time. Ms. Argueta-Avila left without Mr. Hernandez, to visit a neighbor. After
she left, Mr. Hernandez called her on the phone more than five times over a period
of about twenty minutes, but she did not answer the calls. When Ms. Argueta-
Avila left her neighbor and went outside into an alley, she saw Mr. Hernandez,
who followed her. She ran ahead, because she was afraid that Mr. Hernandez
would be angry at her for not returning his calls. Ms. Argueta-Avila also felt angry
and wanted to get home so that the couple could talk there.
Ms. Argueta-Avila testified that Mr. Hernandez grabbed her shirt, causing it
to tear, and pushed her, causing her to fall. Ms. Argueta-Avila suffered scrapes
and other minor injuries from the fall. She told the police that Mr. Hernandez did
not assault her, that he had grabbed her by the shirt, and that she had fallen. When
3
she told the police that Mr. Hernandez did not assault her, she meant that he did
not hit her. Ms. Argueta-Avila did not see anyone else in the alley that evening.
Mr. Andre Hawthorne testified that he saw the incident as he was walking
through the alley on the way home from work. At first, it appeared to Mr.
Hawthorne that Ms. Argueta-Avila was trying to get around Mr. Hernandez, who
was blocking her path. When Mr. Hawthorne asked if they were all right, Mr.
Hernandez said yes but Ms. Argueta-Avila did not answer. Ms. Argueta-Avila
appeared scared to Mr. Hawthorne. Mr. Hawthorne walked past but continued to
keep an eye on the couple. He saw Mr. Hernandez‘s hand on Ms. Argueta-Avila‘s
arm, and Mr. Hernandez appeared to be trying to persuade Ms. Argueta-Avila to
do something. Mr. Hawthorne was concerned about what he had seen, so he called
911. While he was on the phone, watching from a distance of about sixty to
seventy feet, Mr. Hawthorne saw Mr. Hernandez choke Ms. Argueta-Avila and
then saw Ms. Argueta-Avila fall to the ground. The United States introduced a
recording of Mr. Hawthorne‘s 911 call into evidence, but that recording was not
transcribed during trial and has not been made part of the record on appeal.
Mr. Hawthorne had previously been convicted of armed robbery, robbery,
assault with a dangerous weapon, and obstruction of justice. Mr. Hawthorne never
4
saw Mr. Hernandez hit, shove, or push Ms. Argueta-Avila. Mr. Hawthorne did not
speak to the police who arrived on the scene about what he had seen.
Officer Benjamin Rubin responded to the incident within about a minute of
receiving a call about an assault in progress. When he arrived, he saw Ms.
Argueta-Avila sitting on the ground, with Mr. Hernandez standing over her. Ms.
Argueta-Avila was pretty frantic and was shaking and crying. Her shirt was
ripped, and she had scratches on her chin and arm. Mr. Hernandez appeared calm.
After realizing that neither Mr. Hernandez nor Ms. Argueta-Avila spoke
English, Officer Rubin called for a Spanish-speaking officer. Officer Jose
Hernandez arrived within three minutes. Officer Hernandez testified that Ms.
Argueta-Avila was crying hysterically and had a torn shirt and scratches on her
chin and arm. Ms. Argueta-Avila was generally unwilling to say what had
happened. Ms. Argueta-Avila did say, however, that she was very afraid of Mr.
Hernandez. She also indicated that ―every time he drinks he does this.‖ Officer
Hernandez understood the latter statement to mean that Mr. Hernandez became
aggressive when he drank alcohol and that he had ―put his hands on‖ Ms. Argueta-
Avila in the past. Although his testimony on the point was equivocal, Officer
5
Hernandez ultimately testified that Ms. Argueta-Avila said that Mr. Hernandez did
not assault her. Officer Hernandez smelled alcohol on Mr. Hernandez‘s breath.
Based on this evidence, the trial court found Mr. Hernandez guilty. The trial
court credited Ms. Argueta-Avila‘s testimony. Specifically, the trial court found
that Mr. Hernandez grabbed Ms. Argueta-Avila‘s shirt and pushed her. The trial
court accepted Ms. Argueta-Avila‘s explanation that, when she told the police that
Mr. Hernandez did not assault her, she meant that he had not hit her. The trial
court also explained that the testimony that Ms. Argueta-Avila felt angry did not
undermine the conclusion that she was assaulted.
Turning to Mr. Hawthorne, the trial court found that he was an unbiased
witness. The trial court credited Mr. Hawthorne‘s testimony that Ms. Argueta-
Avila had appeared frightened and that Mr. Hawthorne saw Mr. Hernandez
choking Ms. Argueta-Avila. The trial court also relied on Mr. Hawthorne‘s
statements in the 911 call that Mr. Hernandez was choking Ms. Argueta-Avila.
Finally, the trial court credited the testimony of both police officers as to Ms.
Argueta-Avila‘s demeanor and injuries. After making these findings, the trial
court concluded that ―the Government met its elements in showing that the
6
defendant with force or violence injured the complaining witness, and did so
voluntarily, on purpose, and not by mistake.‖
II.
When assessing whether the evidence at trial sufficiently supports a
conviction, we view the evidence in the light most favorable to the verdict and
defer to the fact-finder‘s credibility determinations. Contreras v. United States,
121 A.3d 1271, 1276-77 (D.C. 2015). The evidence is sufficient if any rational
fact-finder could have found the elements of the crime beyond a reasonable doubt.
Id. at 1277.
The evidence credited by the trial court sufficed to support Mr. Hernandez‘s
assault conviction. Specifically, the trial court found that Mr. Hernandez
purposely pushed and choked Ms. Argueta-Avila. Such conduct constitutes
assault. See, e.g., Dunn v. United States, 976 A.2d 217, 220-21 (D.C. 2009)
(evidence that defendant intentionally pushed victim sufficed to support assault
conviction); McCoy v. United States, 781 A.2d 765, 768-69 (D.C. 2001) (evidence
that defendant choked victim, threatened victim with knife, and pushed victim
7
down stairs supported conviction for assault with dangerous weapon). We are not
persuaded by Mr. Hernandez‘s contrary arguments.
First, Ms. Argueta-Avila‘s reluctance to tell the police what happened does
not undermine the sufficiency of the evidence. Cf., e.g., Jones v. United States,
No. 13-CF-182, 2015 WL 4113369, at *16 (D.C. July 9, 2015) (―[A] witness may
be inaccurate, contradictory and even untruthful in some respects and yet be
entirely credible in the essentials of his testimony.‖) (internal quotation marks
omitted); Payne v. United States, 516 A.2d 484, 493 (D.C. 1986) (per curiam)
(―[C]onflicts created by a witness‘[s] recantation, like other internal
inconsistencies within a witness‘[s] testimony, are factual questions for the jury to
resolve.‖; jury could have found that witness recanted at trial out of fear).
Second, the trial court reasonably accepted Ms. Argueta-Avila‘s explanation
that, when she told the police that Mr. Hernandez did not assault her, she meant
that he had not hit her. Ms. Argueta-Avila‘s testimony thus did not contradict the
conclusion that Mr. Hernandez assaulted Ms. Argueta-Avila.
Third, contrary to Mr. Hernandez‘s assertions that the trial court did not
make an adequate finding as to intent, the trial court explicitly found that Mr.
8
Hernandez pushed and choked Ms. Argueta-Avila and injured her voluntarily, on
purpose, and not by mistake.
Fourth, evidence that Ms. Argueta-Avila was angry during and after the
incident does not negate the evidence that Mr. Hernandez assaulted her. Cf., e.g.,
In re D.R., 96 A.3d 45, 47 n.2 (D.C. 2014) (establishing offense of assault does not
require proof that victim felt fear). In any event, there was evidence that Ms.
Argueta-Avila appeared frightened and said she was afraid of Mr. Hernandez.
Finally, Mr. Hernandez challenges the trial court‘s decision to credit Mr.
Hawthorne‘s testimony, arguing that Mr. Hawthorne was impeached with prior
convictions and that his testimony with respect to the choking was not
corroborated by the testimony of other witnesses. ―This court will not reverse a
trial court‘s factual findings after a bench trial unless those findings are ‗plainly
wrong or without evidence to support them.‘‖ Contreras, 121 A.3d at 1277
(quoting D.C. Code § 17–305 (a) (2012 Repl.)) (brackets omitted); see also, e.g.,
Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007) (―[T]his court is not in a
position to substitute its judgment for that of the fact-finder when it comes to
assessing the credibility of a witness. That determination is for the fact-finder to
make and is made in large part[ ] based on factors that can only be ascertained after
9
observing the witness testify.‖). We see no basis to look behind the trial court‘s
credibility determinations in this case.
III.
Mr. Hernandez also argues that the trial court failed to conduct an adequate
inquiry into whether the United States was required to disclose to Mr. Hernandez
notes of a prosecutor‘s interview with Ms. Argueta-Avila. We agree.
A.
The Jencks Act, 18 U.S.C. § 3500 (2012), is implemented in the District of
Columbia by Superior Court Rule of Criminal Procedure 26.2. Fadul v. District of
Columbia, 106 A.3d 1093, 1096 (D.C. 2015). Rule 26.2 (a) provides that, once a
witness other than the defendant has testified on direct examination, the court upon
request must order the attorney for the party calling the witness to produce ―any
statement‖ in the attorney‘s possession relating to the subject matter of the
witness‘s testimony. See also, e.g., Frye v. United States, 600 A.2d 808, 810 (D.C.
1991) (―[T]he duty of disclosure affects not only the prosecutor, but the
Government as a whole, including its investigative agencies.‖) (internal quotation
10
marks omitted). The definitions of ―statement‖ include ―a substantially verbatim
recital of an oral statement made by the witness that is recorded
contemporaneously with the making of the oral statement and that is contained in a
stenographic, mechanical, electrical, or other recording or a transcription thereof.‖
Super. Ct. Crim. R. 26.2 (f)(2). The notes of a prosecutor‘s interview with a
government witness can be subject to disclosure under the Jencks Act if the notes
are substantially verbatim and were contemporaneously taken. Rease v. United
States, 403 A.2d 322, 326-27 (D.C. 1979) (per curiam). ―[T]he ‗work product‘
doctrine does not shield from discovery writings, such as government attorneys‘
interview notes, that are otherwise producible under the Act.‖ United States v.
(Jacqueline) Jackson, 430 A.2d 1380, 1385 (D.C. 1981).
Trial courts have ―considerable discretion‖ in administering the Jencks Act,
and we review decisions regarding the production of Jencks material for abuse of
discretion. Johnson v. United States, 800 A.2d 696, 699 (D.C. 2002). ―Before we
will defer to the trial court‘s ultimate ruling on production, however, the court must
conduct a proper inquiry and make relevant findings.‖ Lazo v. United States, 54
A.3d 1221, 1231 (D.C. 2012). A proper request for production of a statement
under the Jencks Act triggers the trial court‘s ―affirmative duty, either by
interrogation or by in camera inspection, to ascertain whether the statement is one
11
defined by the Act itself as producible material and whether it is in the possession
of the government.‖ Lazo, 54 A.3d at 1232 (internal quotation marks omitted). A
party need not establish that a Jencks statement unquestionably exists to trigger a
duty of further inquiry by the court. Id. Rather, the requesting party need only
elicit testimony that an agent of the government interviewed the witness and took
notes of the conversation. Id.
B.
During the trial, defense counsel established that Ms. Argueta-Avila had met
with the trial prosecutor in preparation for her testimony and that the prosecutor
had taken notes during at least one of those meetings. When defense counsel
requested that the trial court order production of the notes as Jencks material, the
trial court declined, explaining that defense counsel had not established that the
notes were ―verbatim‖ and thus discoverable under the Jencks Act. The trial court
also denied defense counsel‘s request that the court review the notes in camera.
The trial court asked the prosecutor several times whether the United States
was in possession of any Jencks statements, and the trial court also directed the
prosecutor to turn over any such statements. The prosecutor acknowledged that
12
she had taken notes during an interview of Ms. Argueta-Avila, but denied
possessing any Jencks statements. Specifically, the prosecutor stated that her notes
were not transcripts or ―continuous narrative reportings,‖ but rather were ―selective
notations, or excerpts from oral statements‖ that did not constitute Jencks
statements. The trial court ultimately concluded that ―it had received an assurance
from the prosecutor, who is an officer of the [c]ourt, that she did not take any notes
during her interview with [Ms. Argueta-Avila] that will satisfy the Jencks
requirement.‖
The United States acknowledges that the trial court in this case was required
to conduct an adequate inquiry into whether the prosecutor‘s notes of the interview
with Ms. Argueta-Avila were subject to production under the Jencks Act. We
agree. See, e.g., Lazo, 54 A.3d at 1232. Witnesses who are being interviewed
often will not see what the interviewer writes down or, as in this case, may not
understand what is written down because of a language barrier. For that reason,
the party seeking disclosure of interview notes is not required to prove what was
written down, and rather need only show that notes were taken during the course of
an interview concerning the events of the case. Id. Once that initial showing is
made, the trial judge must make an adequate inquiry or review the notes to
determine whether they are Jencks material. Id.
13
The United States argues, however, that the trial court permissibly
concluded, after adequate inquiry, that in camera review of the notes in this case
was not necessary. We conclude otherwise.
We view this case as largely controlled by our decision in Matthews v.
United States, 322 A.2d 908 (D.C. 1974). In that case, defense counsel established
that the prosecutor had taken notes during interviews of two government witnesses.
Id. at 909. When defense counsel moved for production of the notes, the
prosecutor said, ―all of the notes I took, none of them were verbatim. I never take
verbatim notes.‖ Id. The trial court denied the request for production of the notes
without reviewing the notes in camera. Id. We held that the trial court erred by
denying the request for production based on the ―factually unsupported‖ ―bare
conclusion from the prosecutor that his notes were not substantially verbatim.‖ Id.
at 910. As we explained,
The trial court . . . in effect allowed the government to
determine whether the notes were producible under the
Act. . . . The [Act] does not vest in the government the
unilateral power to determine without judicial
supervision the question of whether or not the statement
falls within the purview of the statute. When a
controverted question . . . arises, it is for judicial
determination with the judge acting as arbiter.
14
Id. (internal quotation marks omitted). We therefore remanded the case for the
trial court to conduct a further inquiry to determine whether the prosecutor‘s notes
were substantially verbatim. Id. at 910-11. We have taken a similar approach in a
number of comparable cases. See, e.g., Johnson, 800 A.2d at 698-701 (remanding
for trial court to conduct in camera review of notes taken by police officer during
interview of government witness); cf. In re S.W.B., 321 A.2d 564, 566 (D.C. 1974)
(trial court should have conducted further examination or investigation rather than
accepting prosecutor‘s representation that notes were not substantially verbatim).
In Matthews, this court distinguished the Supreme Court‘s opinion in United
States v. Augenblick, 393 U.S. 348 (1969). Matthews, 322 A.2d at 910. In
Augenblick, the Supreme Court upheld a determination that the notes of an agent‘s
interview of a government witness were not producible under the Jencks Act, even
though the notes had not been reviewed in camera. Augenblick, 393 U.S. at 353-
55. In Augenblick, however, there was concrete factual information about the
notes at issue: the agent said that he ―jot[ted] down a couple of rough notes.‖ Id.
at 354. This court has ruled similarly in several cases involving ―sketchy,‖
―hasty,‖ or ―rough‖ notes. See, e.g., Strickland v. United States, 389 A.2d 1325,
1328-29 (D.C. 1978) (no abuse of discretion in declining to grant a new trial based
15
on nondisclosure of ―portion of rough notes‖ that detective described as
―miscellaneous‖ and not verbatim). In other cases involving police notes,
however, we have remanded for further inquiry into whether the notes contained a
Jencks statement. See, e.g., (Calvin) Moore v. United States, 353 A.2d 16, 18-20
(D.C. 1976) (remanding for determination of whether lost notes containing
description of robbers constituted Jencks statement); cf. also Johnson, 800 A.2d at
699 (―It is well established that police notes are potentially Jencks Act statements.
The mere fact that the notes may be rough does not defeat a Jencks claim, for the
form of the statement is irrelevant; the inquiry must focus on the content of the
writing and on the circumstances surrounding its making.‖) (brackets, citation, and
internal quotation marks omitted); (Michael Eric) Jackson, 450 A.2d 419, 425-26
(D.C. 1982) (per curiam) (upholding trial court‘s inference that lost notes of
witnesses‘ statements during identification procedure were substantially verbatim;
―The requirement that the statement be ‗substantially verbatim‘ is a flexible one,
and each statement must be examined in light of circumstances such as (1) the
extent to which the writing conforms to the witness‘[s] language, (2) the length of
the statement as compared to the length of the interview, (3) the lapse of time
between the interview and its transcription, (4) the appearance of the substance of
the witness‘[s] remarks and (5) the purpose for which the statement was taken.‖).
Our cases in this area demonstrate that there is not a clear line between statements
16
that are substantially verbatim and those that are not. For that reason, we conclude,
as we did in Matthews, that a trial court cannot properly deny a request for
production of a prosecutor‘s notes based solely on the prosecutor‘s indication that
the notes reflect an unspecified degree of selectivity. Rather, the trial court has ―an
affirmative duty to determine whether [a Jencks] statement exists . . . [by
conducting] such inquiry as may be necessary[,] . . . [which] may involve an
interrogation of witnesses, . . . an in camera examination of the statement, or . . .
both.‖ Matthews, 332 A.2d at 910 (internal quotation marks omitted); see also id.
(noting that, ―in light of the circumstances of each case,‖ trial judge may need to
decide ―what, if any, evidence extrinsic to the statement itself may or must be
offered to prove the nature of the statement‖) (internal quotation marks omitted).
Merely accepting a prosecutor‘s bare conclusion is not a sufficient ―interrogation‖
that will satisfy the court‘s affirmative duty to make its own determination whether
requested notes come within the purview of Jencks.
Although the United States relies heavily on our decision in Lazo, we view
that case as readily distinguishable. In Lazo, we remanded for further inquiry with
respect to several potential Jencks statements. 54 A.3d at 1231-41. We upheld the
adequacy of the trial court‘s inquiry in one respect, however. Id. at 1238. After a
government witness testified that a prosecutor had taken notes during an interview,
17
the prosecutor who had conducted the interview represented that she had not taken
any notes during the interview. Id. We held that, ―absent compelling evidence to
the contrary, when a court receives an assurance directly from the prosecutor—an
officer of the court—that she did not take any notes during her interview with a
witness, the court satisfies its duty of independent inquiry . . . .‖ Id.
The critical difference between Lazo and the present case is that Lazo
involved a prosecutor‘s representation as to a pure question of fact as to which the
prosecutor had personal knowledge -- whether any notes were taken. Lazo, 54
A.3d at 1238. The trial court‘s reliance on that representation was in essence a
credibility determination that was bolstered by the prosecutor‘s ethical obligation
of candor as an officer of the court. Id.; cf., e.g., Hilliard v. United States, 638
A.2d 698, 704 (D.C. 1994) (noting that court, ―after weighing the credibility of
witnesses, may properly credit a police officer‘s testimony that no statements were
recorded‖); (Michael Eric) Jackson, 450 A.2d at 424 (noting that judge chose to
credit testimony of witnesses that they were shown photo arrays and to infer from
usual police practice that notes were taken).
In the present case, as in Matthews and similar cases, the question was
whether notes were substantially verbatim. Although the Supreme Court has
18
treated that question as predominantly factual in nature, see Campbell v. United
States, 373 U.S. 487, 492-93 (1963), the line between notes that are substantially
verbatim and notes that are not is to a degree a legal question, see Williams v.
United States, 119 U.S. App. D.C. 177, 180, 338 F.2d 286, 289 (1964) (―[A]
finding that written statements are or are not producible under the Jencks Act as
substantially verbatim recitals of witnesses‘ oral statements is not an ordinary
finding of fact; it is a factual conclusion arrived at by applying a legal standard to
the other facts found.‖). As we have noted, our cases do not define that line with
clarity, and a trial court therefore cannot simply accept, without further inquiry, a
prosecutor‘s conclusory assertion that notes are ―selective‖ or ―not substantially
verbatim.‖
C.
Finally, the United States argues that any error was harmless, because the
record contains other substantial evidence of Mr. Hernandez‘s guilt. We conclude
that the United States has not carried its burden of establishing harmless error on
the current record.
19
In assessing whether a non-constitutional error was harmless, we apply the
standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946), which held
that there must be ―fair assurance‖ that the error did not ―substantially sway[ ]‖ the
judgment. Id. at 765. This standard ―precludes us from affirming on a mere hunch
that the case would have ended with the same verdict if the erroneous ruling had
not been made.‖ Clark v. United States, 593 A.2d 186, 192 (D.C. 1991). ―To
conclude that an error is harmless, we must find it highly probable that [the] error
did not contribute to the verdict.‖ Id. (internal quotation marks omitted). The
government bears the burden of establishing the harmlessness of an error. Lucas v.
United States, 102 A.3d 270, 279 (D.C. 2014). Where this court does not have
access to the potential Jencks statements at issue, we assess harmlessness by
assuming that the undisclosed material contained a Jencks statement, that the
statement ―would have provided serious impeachment material,‖ and that the trial
court therefore would have struck the witness‘s direct testimony. Johnson, 800
A.2d at 701 n.4.
Under this approach, the question is whether we can say with fair assurance
that the trial court would have found Mr. Hernandez guilty even if Ms. Argueta-
Avila had not testified. We lack such assurance. First, Ms. Argueta-Avila was the
critical witness at trial, and the trial court treated her as such. In returning a guilty
20
verdict, the trial court addressed Ms. Argueta-Avila‘s testimony first, describing in
detail how credible it found Ms. Argueta-Avila. It is difficult to predict with
confidence how the trial court would have responded to the evidence without Ms.
Argueta-Avila‘s testimony. That difficulty counsels against finding harmlessness
on the current record. See, e.g., Lazo, 54 A.3d at 1237 (any Jencks error as to
complaining witness was not harmless, despite corroborative testimony from other
witnesses, given among other things ―critical importance‖ of complaining
witness‘s testimony).
Second, the United States has not presented a clear picture of what the trial
would have looked like in the absence of Ms. Argueta-Avila‘s testimony. Most
importantly, the United States has not attempted to explain which of Ms. Argueta-
Avila‘s hearsay statements to police officers would properly have been admitted at
a trial in which Ms. Argueta-Avila did not testify. For example, evidence that Ms.
Argueta-Avila had been uncooperative and had denied that Mr. Hernandez had
assaulted her might have given rise to reasonable doubt, particularly in the absence
of any further explanatory testimony from Ms. Argueta-Avila. Ms. Argueta-Avila
made other hearsay statements that would if admitted have provided support for a
finding of guilt, such as that she was afraid of Mr. Hernandez and that Mr.
Hernandez ―does this‖ when he drinks. Nevertheless, absent a more detailed
21
argument by the United States as to which of Ms. Argueta-Avila‘s statements
would properly have been admitted at a trial in which she did not testify, we lack
confidence that the trial court would have necessarily found guilt.
Third, it is not clear that the trial court would have viewed Mr. Hawthorne‘s
testimony as establishing guilt beyond a reasonable doubt in the absence of Ms.
Argueta-Avila‘s testimony, particularly if the trial court also heard evidence that
Ms. Argueta-Avila had denied that Mr. Hernandez had assaulted her. Although the
trial court stated that it ―credited all [of Mr. Hawthorne‘s] testimony,‖ the trial
court did so in a context in which it viewed Mr. Hawthorne‘s testimony as
corroborative of (and thus corroborated by) Ms. Argueta-Avila‘s testimony.
Moreover, Mr. Hawthorne was impeached with prior convictions, he viewed the
key part of the incident from a distance, and neither Ms. Argueta-Avila‘s testimony
nor her injuries corroborated Mr. Hawthorne‘s testimony that Mr. Hernandez
choked Ms. Argueta-Avila. Although the corroborative testimony of the police
officers about Ms. Argueta-Avila‘s demeanor and injuries would have provided
additional support for a finding of guilt, we nevertheless find ourselves unable to
say with adequate confidence that the error did not influence the trial court‘s
finding that Mr. Hernandez pushed and choked Ms. Argueta-Avila.
22
In contending that any error was harmless, the United States relies primarily
on (Carlton) Moore v. United States, 657 A.2d 1148, 1151-52 (D.C. 1995), and
Butler v. United States, 481 A.2d 431, 446-47 (D.C. 1984). Neither decision
persuades us that the error in this case was harmless. Butler was an appeal from a
denial of a motion for new trial based on newly discovered evidence. 481 A.2d at
446. The trial court in Butler knew the contents of the previously undisclosed
Jencks statements and was thus able to assess whether nondisclosure had actually
prejudiced the defense. Id. at 446-47. The trial court in Butler determined that the
credibility of the witness at issue -- an accomplice -- would not have been so
undermined by the Jencks statements as to affect the verdict, given the ―substantial
corroborative evidence‖ presented. Id. In the present case, neither the trial court
nor we know what the prosecutor‘s notes contain. That is why, as we have
previously noted, we must assume for current purposes that Ms. Argueta-Avila‘s
testimony would be stricken.
In (Carlton) Moore, we found the nondisclosure of a Jencks statement
harmless error because (1) defense counsel had possessed three other Jencks
statements for the witness at issue and had failed to impeach the witness‘s
testimony with them; (2) two other witnesses had corroborated the witness‘s
version of events; and (3) physical evidence in the form of a photograph also
23
corroborated the witness‘s testimony. 657 A.2d at 1152. In the present case, the
defense had no other Jencks statements to use to impeach Ms. Argueta-Avila, and
for the reasons already explained we are not sufficiently confident that Mr.
Hernandez would have been found guilty at a trial at which Ms. Argueta-Avila did
not testify.
In sum, we conclude that the current record does not demonstrate that the
error was harmless. We therefore remand for a further inquiry into whether the
prosecutor‘s notes are producible as a Jencks statement. Although we have
indicated that in camera review may not be necessary if the trial court has
otherwise undertaken an inquiry sufficient to establish that notes do not contain
Jencks material, Lazo, 54 A.3d at 1232, we think it preferable in the circumstances
of this case for the trial court to review the notes at issue in camera, see, e.g.,
Johnson, 800 A.2d at 701 (remanding for trial court to review police officer‘s notes
in camera to determine whether notes contained Jencks material). If the trial court
finds that the notes contain Jencks material, the trial court should disclose the
pertinent portions of the notes to the defense and permit the parties to brief the
question whether nondisclosure was harmless because the notes could not have
been used to seriously impeach Ms. Argueta-Avila. E.g., Medina v. United States,
61 A.3d 637, 647 (D.C. 2013). If the trial court finds that the nondisclosure was
24
not harmless, the trial court should vacate the judgment and order a new trial. Id.
If the trial court concludes that the notes do not contain Jencks material, or that any
nondisclosure was harmless, the trial court should make the notes part of the record
under seal, supplement its findings, and enter a new final judgment of conviction to
preserve Mr. Hernandez‘s right to seek further appellate review. Bayer v. United
States, 651 A.2d 308, 312 (D.C. 1994); Reed v. United States, 403 A.2d 725, 732
n.9 (D.C. 1979).
So ordered.