TYRELL JOHNSON, APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CM-100
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided July 16, 2020
Aрpeal from the Superior Court of the District of Columbia (CMD-14462-18) (Hon. Patricia A. Broderick, Trial Judge) (Submitted January 14, 2020)
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 appeals of any formal errors so that corrections may be made before the bound volumes go to press.
Montrell L. Scaife for appellant.
Jessie K. Liu, United States Attorney, with whom Robert K. Platt, Assistant United States Attorney, Elizabeth Trosman, Suzanne Grealy Curt, and Carolyn Sweeney, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH and MCLEESE, Associаte Judges, and FERREN, Senior Judge.
I. Facts and Proceedings
According to the government‘s evidence, Officer Tiffany Williams of the Metropolitan Police Department (MPD) was investigating an unspecified crime for which she arrested appellant on the early morning of May 29, 2014. After the arrest, Officer Williams prepared a police report, and appellant was assigned an MPD Identification Number (PDID number).2 That same day at his arraignment, the government charged appellant with simple assault, and the trial court released him after he signed a Release of Conditions Form, which required him to appear in court on July 1, 2014, for an initial status hearing. Appellant, however, did not appear that day, and the trial court issued a bench warrant for his arrest.
Four years later, on September 30, 2018, Officer Zelaya arrested appellant while investigating another incident. Officer Zelaya performed a background check on appellant and noticed the outstanding bench warrant, whereupon appellant was charged with violating the BRA.
During a bench trial on January 30, 2019, the government sought to introduce three exhibits in evidence: (1) a printout of the CourtView version of the docket entry showing appellant‘s failure to appear at his first post-arraignment status hearing scheduled for July 1, 2014; (2) the Release of Conditions Form that appellant had signed at his arraignment on May 29, 2014; and (3) the bench warrant for appellant‘s arrest issued on July 1, 2014. To lay a foundation for the three exhibits, the government called Dominique Crowley, a courtroom clerk in the trial court, to testify “as an expert in court procedure.” When the prosecutor asked Crowley to read the docket entry from CourtView, however, defense counsel objected: “Just in qualifying [Crowley] as an expert, I would object.”3 The trial court nonetheless
First, Crowley answered general questions about courtroom procedures. She then identified appellant‘s docket entry from CourtView and confirmed that it was a certified copy. She further confirmed that the docket entry showed that appellant had initially appeared before the trial court on May 29, 2014, and that a bench warrant had been issued for his arrest for failure to appear in his next hearing on July 1, 2014.
Second, the prosecutor showed appellant‘s Release of Conditions Form to Crowley. She identified a certified copy of the form (Exhibit 2) and read portions of it designated by the prosecutor. She further testified that she could not tell from the court‘s copy whether appellant had received a copy of the form, but she added that, because a Release of Conditions Form has several carbon copies, appellant “would have gotten the blue copy.” Defense counsel asked to defer noting his objection to admission of the form until cross-examination. The trial court, however, asked counsel to “object now” and “do a voir dire, if you want to“; otherwise the form “comes in” as “a certified copy . . . under the rules” — whereupon defense counsel replied, “Understood, Your Honor.”
Third, Crowley identified a certified copy of appellant‘s bench warrant (Exhibit 3), which the trial court admitted in evidence without objection and thus is not at issue here. On cross-examination Crowley acknowledged that she had not “personally witnessed” and thus had no “personal knowledge” that appellant had “failed to appear” in court on July 1, 2014.
Toward the end of the bench trial, defense counsel objected that Crоwley‘s testimony that appellant had not attended court for the July 1, 2014, status hearing was “based upon her reading prior docket entries [and] court documents“; thus, it was “expert testimony,” that is, her “interpretation” of the record. The trial court replied that she “didn‘t qualify [Crowley] as an expert . . . . The document can be read and all [Crowley] did was read it. I can read it . . . . She didn‘t interpret it.” Overruling defense counsel‘s objection, the trial court then found appellant guilty of the BRA charge and sentenced him to ninety days of incarceration followed by one year of supervised probation. This timely appeal followed.
II. Standard of Review
We review a trial court‘s decision on admission of evidence for abuse of discretion.4 If, however, a defendant has failed to object at trial to evidence contested on appeal, we review for plain error.5 Appellant preserved his first claim of error by objecting to the trial court‘s failure to qualify the courtroom clerk as an expert witness. He failed, however, to object to the trial court‘s allowance of that testimony as proper foundation for admission of the government‘s exhibits. Thus, we review
III. The Merits
A. “Expert” or “Lay” Testimony?
Appellant argues that Crowley‘s testimony, by its very nature, required specialized knowledge that necessitated her qualification as an “expert” (as the government had requested).7 The trial court ruled this unnecessary. The court understood Crowley to have done no more than read public records into the trial record, which the court said it could do itself, without any expert, interpretive help from Crowley.
We do not assume the trial court was saying that, as factfinder, it could simply take judicial notice of the government‘s еxhibits, without more, to assess appellant‘s guilt.8 The government itself recognizes that, for admission of court records in evidence under the public record exception to the hearsay rule, the government must establish a foundation — a predicate — for admission of such exhibits. This requires testimony that: (1) authenticates each document as “an official record” of the trial court, (2) proves that the “facts stated in the document are within the personal knowledge and observation of the recording official,” and (3) establishes that “the document is prepared pursuant to a duty imposеd by law or implied by the nature of the office”9 — criteria we have compressed to require the “offering witness be able to identify the record as authentic and as made in the ordinary course of business.”10 Thus, in rejecting the need for expert testimony to satisfy these foundational criteria, the trial court‘s
Not long ago, in affirming a BRA conviction, this court recognized that an unchallenged, unidentified witness (likely the trial court courtroom clerk) testified as an “expert” when explaining “standard courtroom practice.”11 Years earlier, we affirmed another BRA conviction after recognizing unchallenged “expert” testimony by a trial court employee laying the foundation for admission of government exhibits challenged on appeal for violating the Confrontation Clause of the Sixth Amendment.12 Still earlier, in affirming another BRA conviction for “willfully failing to appear,” we likewise noted the trial court‘s qualification of a courtroom clerk as an “expert” whose testimony supplied the foundation necessary to support authentication of court documents under the public record exception to the hearsay rule.13
In none of these cases, however, did we review the need for expert testimony; nor have other cases suggested, let alone held, that a courtroom clerk must be qualified as an “expert” before testifying about trial court procedures in failure-to-appear or other cases.14
To be sure, testimony about trial court procedures — what they are and how they work — may include a measure of interpretation (and thus “opinion“).15 Even so, a courtroom clerk‘s testimony about court procedures is premised on the
Quoting federal case law, we have acknowledged that the “line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 is a fine one,” not always “easy to draw.”20 However, we agree with the government that, in this case, clerk Crowley‘s testimony was not that of an expert based on “special training or scientific or other specialized professiоnal knowledge” normally not “accessible to an average person.”21 Rather, as explained in King, her testimony was premised on knowledge gained from her “personal experiences and observations” as a courtroom clerk, including “observations of human conduct in [her] every day work,” communicated to the jury with “reasoning processes familiar to the average person in everyday life.”22
The question then becomes: How is this Rule 701 lay opinion to be applied here? More particularly, on the trial record, did clerk Crowley‘s testimony provide the required foundation for admission of the government exhibits 1 and 2 in evidence?23
B. Foundation for Lay Opinion Testimony: Federal Rule of Evidence 701
1. General Courtroom Procedures
As observed earlier, before determining whether clerk Crowley‘s testimony
As the foundation for admitting in evidence certified copies of the docket entry, the Release of Conditions form, and the bench warrant (government exhibits 1, 2, and 3), Crowley first explained her overall duties as clerk: she “pretty much manage[s] the courtrоom“; prints and posts the “courtroom calendar” each day; prepares the paperwork for each defendant‘s case; and adds the “docketing entries,” including “what occurred” when the case was called, the defendant‘s “release status” pending trial, and a notice — which the defendant signs — specifying when the defendant must return to court and adding the “penalties” for failing to so. Clerk Crowley adds an “oral warning” that “explain[s] the penalties,” including a bench warrant for the defendant‘s arrest. She also notes in the court record when a defendant “does not appear after his or her name is called.” Importantly, Crowley generalized her testimony; she confirmed that “all of the courtroom clerks here in D.C. Superior Court follow a similar procedure each morning.”
2. Evidence at Trial
After explaining the trial court‘s general procedures, Crowley identified the government‘s three exhibits, testifying that each was a sealed, certified copy. In answering the prosecutor‘s questions, Crowley confirmed docket entries indicating that appellant was present in court on May 29, 2014, the date of arrest; had been charged with a criminal offense in case number 014-CMD-9383 (Exhibit 1); had signed a “release of conditions form” notifying him that he must return to court on July 1, 2014 (Exhibit 2); and then failed to appear on that date, as required, following which a bench warrant had been issued for his arrest (Exhibit 3).
On cross-examination, Crowley acknowledged that appellant‘s failure to appear on July 1, 2014, occurred before she was “working at the courthouse,” and thus that her testimony had been based exclusively on what she had seen “in the docket.”
Crowley concluded her testimony by responding on redirect that she had worked at the trial court for almost three years (having mentioned earlier that she had servеd “[m]ore than ten judges“). She looks at court calendars “every day” and feels “one hundred percent comfortable” when “reading and interpreting, understanding what the court calendars mean.”
This court‘s decisions cited earlier26 — especially the remarkably similar testimony in Goldsberry27 — make clear
In support of admitting this testimony, we have agreed with the trial court that Crowley need not have been qualified as an expert. Based on our decision in King, Crowley‘s testimony, if qualified for admission in evidence, would come in as a lay opinion under
A. Federal Rule of Evidence 406
As noted earlier, we review for plain error because appellant failed to object to the trial court‘s allowance of clerk Crowley‘s testimony as proper foundation for admission of the government‘s exhibits.
Appellant would have us reject Crowley‘s testimony because, having joined the trial court staff in April 2016, she “did not have personal knowledge of the general practices and customs of courtroom clerks in 2014,” when appellant failed to return to court on July 1. Appellant, however, failed to object on this ground at trial or press the point at closing argument.
We cannot find plain error, let alone error affecting appellant‘s substantial rights.35 Presumably the government had the burden of persuasion that the trial court procedures reflected in the docket at time of trial (April 2016) were congruous with the situation when appellant failed to appear in court in (July 2014). However, Ms. Crowley‘s testimony — based exclusively on what she had seen “in the docket” from 2014 — was remarkably similar to the testimony about courtroom procedures by the courtroom clerk in Goldsberry many years earlier.36 Furthermore, Crowley made clear that the court procedures she had described were virtually universal, for she testified that “all of the courtroom clerks here in the trial court follow a similar procedure each morning.” We believe that this evidence was sufficient proof that Ms. Crowley was apprised of the docket evidence and procedures from 2014; such time-honored procedures are not changed regularly or without a trial judge‘s awareness (of which no evidence here).
The burden of producing evidence to the contrary thus shifted to appellant. However, he has proffered no basis for believing that trial court procedures, let alone the court docket, had changed between mid-2014 and the spring of 2016 when Ms. Crowley first reported for work. Appellant‘s contentions embracing Rules 406 and 701 accordingly fail because, unlike the courtroom clerks who testified in Smith and Bolan,37 clerk Crowley testified with the level of “personal knowledge” required under both rules.38
III. Sufficiency of the Evidence
To find the evidence sufficient to support a criminal conviction, we decide whether, “after viewing it in the light most favorable to the [government], any rational trier of fact could have found the essential elements of the crime beyond a reasonablе doubt.”39 Following a bench trial, this court will not reverse a conviction unless appellant “has established that the trial court‘s factual findings are ‘plainly wrong,’ or ‘without evidence to support them.‘”40 “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”41
To prove a violation of the Bail Reform Act, the government must prove that appellant: (1) had been released pending further criminal proceedings, (2) was required to appear in court on a specific date, (3) failed to appear, and (4) did so willfully.43 In this case, viewed (as we must) in the light most favorable to the government, there was sufficient evidence for appellant‘s conviction.
In her comprehensive testimony summarized earlier, clerk Crowley testified, among other details, that docketing entries confirmed appellant‘s presence in court on the date of his arrest, May 29, 2014, charged with a criminal offense in case number 2014-CMD 9383 (Exhibit 1); that after arraignment he had signed a “release of conditions form” notifying him of his obligation to return to court for a status hearing on July 1, 2014 (Exhibit 2); that he had failed to appear on that date; and that a bench warrant thereupon issued for his arrest (Exhibit 3). This testimonial and documentary evidence was sufficient to satisfy the first three elements of the crime.
Finally, the BRA statute provides that “[a]ny failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful,”44 essentially a presumption that appellant made no serious effort to rebut. In closing, defense counsel merely argued: “As a fact finder, I‘d submit that they have given you no evidence as to willfulness and therefore the court should acquit Mr. Johnson.” The trial court, however, perceived “no contrary evidence to override” the presumption that appellant‘s failure to return to court was “willful,” ruled that the government had “met its burden,” and found appellant “guilty of the BRA.” There was no clear error and thus the judgment of conviction must be affirmed.
So ordered.