After a non-jury trial, appellant was convicted of assault. On appeal from that conviction, she argues that the government’s failure to provide her with a digital video recording from the bus on which the assault took place constitutеd a discovery violation. Her assertion is that because the bus was owned and operated by the Washington Metropolitan Area Transit Authority (‘WMATA” or “Metro”), a government agency, the recording was therefore in the possession of the government and the prosecution was required to preserve and produce it. We disagree and accordingly affirm the conviction.
I
Patricia Doby testified that on July 19, 2008, at approximately 2:00 p.m., she boarded an X2 Metro bus in Northeast Washington and took a seat near the front of the bus, two seats behind the driver. Appellant, who was sitting three seats away, was cursing out loud at no one in particular and “talking about men fucking women, women fucking women, and all that.” When Ms. Doby said to her, “Can yоu please stop? There are kids on the bus,” appellant stood up and withdrew a large knife from her purse. Appellant approached “really close” to Ms. Doby with the knife and said, “Who the fuck are you talking to, bitch?” Ms. Doby replied, “Why are you talking to me like that? I didn’t disrespect you; you disrespected
Officer Marcucci testified that a bus driver flagged him down while he was driving his police cruiser through the He-chinger Mall parking lot. The driver informed him that appellant had threatened one of the passengers in the bus аnd tried to cut her with a knife. After hearing the reports of the bus driver, Ms. Doby, and the other two passengers, Officer Marcucci “went after” appellant and brought her back to his cruiser. He told her that she was not under arrest but was being “detained until I cоuld solve what’s going on.” 1 He described appellant as “loud, boisterous,” and “highly intoxicated.” 2 After other officers arrived in response to his call for backup assistance, Officer Mar-cucci left appellant with them, then got into his cаr and followed the bus. He caught up with it a few blocks way, stopped it, and brought Ms. Doby back to the mall parking lot, where she identified appellant once again. Officer Marcucci then formally placed appellant under arrest. One of the other officers searched appellant’s purse and found a knife in it, which he seized.
Appellant testified in her own defense. She said that she had been on the bus on July 19, but that she had drunk only one beer about two hours earlier and was not intoxicated. She denied using any vulgar or obscene language on the bus and denied threatening anyone with a knife. She admitted, however, that she had a knife in her purse, which she had allowed the officers to remove. Finally, she said that she had not seen Ms. Doby on the day of her arrest or at any time before the trial.
About three weeks before trial, appellant filed a motion to compel the government to produce any video or audio recording that might have been made on the bus during the incident. When the prosecutor informed the court at the beginning of the trial that there was a digital video recorder on the bus, but that the video was erased after eighty hours pursuant to established WMATA policy, defense сounsel moved for the case to be dismissed. Counsel argued that the government had violated Rule 16 of the Superior Court Rules of Criminal Procedure by failing to preserve the video which was made on the bus during the incident. The trial court reserved ruling оn the motion to dismiss until after the conclusion of the defense case, at which point the court denied the motion. It found that while the recording was material to appellant’s defense, it was not in the possession of the government, and therefore its production was not required under Rule 16.
The court also found appellant guilty of assault and sentenced her to ten days in jail. Execution of that sentence was suspended, and appellant was placed on pro
II
Appellant argues that the maintenance of WMATA’s surveillance and recording system, intended to еnsure the safety of passengers on its buses, is a governmental function, and consequently the government has an obligation to preserve and disclose recordings that disclose or involve any criminal activity that occurs on a Metro bus. She contends that the government violated Criminal Rule 16 when it neglected to preserve the video recording and provide it to her upon request.
In the District of Columbia, the duty to preserve discoverable evidence dates back at lеast forty years, to the leading case of
United States v. Bryant,
142 U.S.App. D.C. 132,
Rule 16 provides that, upоn the request of the defendant, the government must “permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portiоns thereof,
which are within the possession, custody, or control of the government,
and which are material to the preparation of the defendant’s defense....” (Emphasis added.) We have held that the duty of disclosure applies not оnly to the prosecutor’s office, but also to all other investigative agencies of the government.
See, e.g., Robinson v. United States,
WMATA was created by an interstate compact among Maryland, Virginia, and the District of Columbia to provide the Washington Metropolitan Area with public transit service.
See Morris v. WMATA,
251 U.S.App. D.C. 42, 43,
This cоurt, in previous decisions pertaining to tort liability, has held that WMATA’s operations are bifurcated, involving both governmental and proprietary functions. The distinction is important for tort liability purposes because WMATA is immune from suit when its actions are governmental but not when they are proprietary.
See, e.g., McKethean v. WMATA,
The tort liability distinction between governmental and proprietary functions is a helpful starting point for our discussion, but it does not fully resolve the issue presented here. In
Morris v. WMATA,
the District of Columbia Circuit held that the WMATA function is governmental in nature when the Metro Transit Police are involved. 251 U.S.App. D.C. 42, 44,
The situation in the instant case is different. Here WMATA acted in a manner that was fundamentally proprietary. The Metro Transit Police were never involved in this case at any time. An officer from the Metropolitan Police — the local police department of the District of Columbia government — was summoned to the scene, where he conducted an investigation and arrested appellant. Thereafter, the United States Attorney’s Office handled the investigation and prosecution of the case. See D.C.Code § 23-101(c) (2001). The mere installation and maintenance by WMATA of a video recording device, the purpose of which was to ensure the sаfety of its bus passengers, was not a governmental function which would make WMA-TA a member of “the prosecution team.”
Robinson,
Appellant’s conviction is therefore
Affirmed.
Notes
. The officer initially placed handcuffs on appellant but removed them after telling her that she was "not under arrest.”
. Ms. Doby had also testified that appellant smelled and acted as if she had been drinking.
. Because it was decided by the United States Court of Aрpeals prior to February 1, 1971, the effective date of the District of Columbia Court Reorganization Act, the
Bryant
case is binding on this court.
See M.A.P. v. Ryan,
. 18 U.S.C. § 3500.
.
. Both
Guest
and
Velasquez
involved claims arising under
Brady v. Maryland.
The rationale of those cases, however, applies with equal force to requests for production of documents or other items of evidence under Rule 16 or the Jencks Act.
See Bryant,
142 U.S.App. D.C. at 140-141,
. The WMATA Compact is incorporated into the text of D.C.Code § 9-1107.01 (2001).
. In ruling on appellant's motion, the trial court relied on
Wilson v. United States,