Criminal Law Blog

Typo Time! Court of Appeals Rejects Expansive Reading of Rule 10(e)(3), Finds Itself Unable to Declare a Scrivener’s Error on Appeal from Jury Instruction.

Payne v. United States (decided February 23, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Nebeker. Opinion by Judge Beckwith. Concurring opinion by Judge Nebeker.  Jason M. Wilcox for Appellant.  Trial Judge: George W. Mitchell.

Facts: Following a conditional grant of habeas corpus by the D.C. Circuit, the Court of Appeals allowed Mr. Payne to raise a claim of instructional error – whether the trial court reversibly erred by instructing the jury, on one of the several occasions where the Government’s burden was discussed, that “it must find the defendant guilty,” if it found that the Government “had failed to prove any element of the offense beyond a reasonable doubt.”

Holding: Considering the claim on plain error review, the Court found no reasonable likelihood that the trial court’s isolated misstatement had prevented the jury from determining Mr. Payne’s guilt in accordance with the constitution. Slip Op. at 4-7. Judge Nebeker, concurring (perhaps only in part), proposed to decide the case on the alternate basis that the purported instructional error was really a typographical or “scrivener’s” error – i.e., that the court reporter simply failed to transcribe the “not” between “defendant” and “guilty.” Id. at 8.

D.C. Appellate Rule 10(e) provides:
(1) If any difference arises about whether the record truly discloses what occurred in the Superior Court, the difference must be submitted to and settled by that court and the record conformed accordingly. 
(2) If anything material to any party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
      (A) on a stipulation of the parties; or
      (B) by the Superior Court before or after the record has been forwarded. 
(3) All other questions as to the form and content of the record must be presented to this court.
Judge Nebeker reasoned that the “true” content of the instruction would “seemingly” fall under Rule 10(e)(2), Slip Op. at 13. However, because “[t]he trial judge and the court reporter are dead and the reporter’s notes are gone,” the Court of Appeals was “in as good a position as a substitute trial court judge to decide” what really happened, which Judge Nebeker viewed as an “other question[] as to the form and content of the record.” Id. at 13-14. Finally, Judge Nebeker reasoned that the trial court’s prior correct statements of the reasonable doubt axiom disproved that it had made a mistake at the time in question on appeal. Id. at 14.

Writing for the Court, Judge Beckwith disagreed that the trial court’s prior correct instructions constituted evidence of a scrivener’s error (“as the government conceded in its brief and at oral argument, even very experienced judges make mistakes”) and further concluded that even if such evidence existed, the trial court would have to decide “whether the record truly discloses what occurred” pursuant to Rule 10(e)(1). Id. at 7 n.4.

Of Note: Attorneys practicing in the Court of Appeals should continue to observe the trial court’s authority to resolve disputes regarding the record, even those which might be classified as “misstatements,” “ommissions,” “errors,” or “accidents.” See Clark v. United States, 147 A.3d 318 331 (D.C. 2016). WC

Read full opinion here