Wednesday, August 6, 2014

It is not a crime to make threatening statements that hinge on the occurrence of an impossible event.



Charles Lewis v. United States, No. 13-CM-321 (decided July 31, 2014)

The Players: Glickman, Beckwith, Nebeker.  Opinion by Judge Nebeker.  McGennis Williams for Mr. Lewis.  Trial judge: Marisa Demeo.

The Facts: Mr. Lewis was arrested for an offense unrelated to the instant appeal, and officers searched him for weapons, handcuffed him, and sat him on a bench.  While Mr. Lewis was on the bench, he became irate with officers and began yelling "derogatory names" at them.  At one point, Mr. Lewis looked at one of the officers involved in the arrest and yelled that the officer "was lucky that [the police] didn't [arrest him] when he had his gun on him[] because he would have blown [the officer's] god-damned head off."  Mr. Lewis's choice of phraseology landed him a charge for attempted threats, and he was convicted of that offense following a bench trial.  The DCCA reversed his conviction on appeal.

Issue: Whether Mr. Lewis's exhortation satisfied the second element of the misdemeanor threat statute--"that the words were of such a nature as to convey fear of serious bodily harm to the ordinary hearer."

Holding: They did not.  The DCCA, channeling its inner sixth grade grammar instructor, held that "appellant's statement could not have induced fear of bodily injury in the ordinary hearer as it was a past conditional statement that hinged on an impossibility--appellant's possession of a gun at the time of arrest."  In other words, because Mr. Lewis could not have traveled back in time to arm himself for his arrest, no reasonable listener would interpret the statement as a threat to shoot the officer.

Of note: Although it is possible to commit the crime of threats by making a threatening statement that is "conditioned upon a future happening," a reviewing court must consider the "likelihood of the condition coming to pass."  To defend against threats charges in such cases, one must be prepared to argue that the condition is unlikely to occur and, thus, the conditional threat would not convey fear of serious bodily harm to the ordinary hearer.  CK.

Read the full opinion here.

Monday, August 4, 2014

You can protest… but don’t lock arms.

"National Women's Party picketing the White House" by Harris & Ewing - Library of Congress 

Richard Z. Duffee, et. al.,  v. District of Columbia, Nos. 11-CT-1550+ (decided July 3, 2014)

The Players: Beckwith, McLeese, Newman.  Opinion by Judge McLeese.  Mark Gladstone for Appellants.   Trial judge: Russell Canan.

The Facts: 150 people marched from Lafayette Park to the White House sidewalk as part of an anti-war demonstration.  Because they were a large group and stood chanting with locked arms they blocked the sidewalk, preventing people from having “free access to the White House sidewalk.”  The police told the group to leave.  113 people remained, and all were arrested for failing to obey a lawful order (“FTO”) and “blocking passage.” 

Issue: Is “breach of peace” an element of “blocking passage?”

Holding: No.  The Court concluded that the plain language of D.C. Code § 22-1307 does not require a breach of the peace.  The government must only show that an individual (1) “crowd, obstruct, or incommode” the use of a “sidewalk or the entrance of any public or private building”; and that he (2) continue his obstruction after law enforcement orders him to “cease the crowding, obstructing, or incommoding.” 

The Court found that the legislative history of D.C. Code § 22-1307 supported its conclusion.  Courts interpreting an earlier version of the bill occasionally read a breach of the peace requirement into the statute.  But in 2010, a working group* studying how to best revise the bill drafted new language and stated that the new version should not contain a breach of the peace requirement. The D.C. Council relied heavily on the working group’s report when it enacted a revised statute.  Although the Council altered some of the proposed language, it explained the reason for each change and never suggested that it intended to inject a breach-of-the-peace requirement into the statute.

*The working group was entitled: The Disorderly Conduct Arrest Project Subcommittee of the Council for Court Excellence.

Of Note:
  • At oral argument, Appellants attempted to challenge the constitutionality of the statute.  Because Appellants did not brief the issue, the Court declined to reach it.  (See FN 2)
  • On appeal, the government conceded that the FTO and blocking passage charges merged, and the Court remanded for an entry of new judgments of conviction on the blocking passage charge.  JB



Friday, August 1, 2014

You cannot be convicted of carrying a dangerous weapon unless the government proves that you were capable of concealing the weapon on your person while you were carrying it.


In re D.R., No. 11-FS-1320 (decided July 31, 2014)

The Players: Glickman, Fisher, Steadman.  Opinion by Judge Fisher.  Cynthia Nordone for D.R.  Trial judge: Patricia Broderick.

The Facts: During a heated altercation with his neighbors, appellant raised an 18 to 24 inch "sword" or "machete" above his head and threatened to disembowel one of said neighbors.  This conduct led to appellant's conviction for carrying a dangerous weapon ("CDW"), in violation of D.C. Code 22-4504(a), and for a host of other offenses not relevant to the court's decision.

Issue: Did the government present sufficient evidence that the sizable machete wielded by D.R. was "capable of being concealed" on or about his person?

Holding: No.  The record was barren of evidence regarding D.R.'s size or the clothing he was wearing at the time of the incident.  Thus, the government could not prove that the machete was capable of being concealed on or about his person.

Of Note:

  • This opinion marks the DCCA's first interpretation of CDW's requirement that the weapon at issue be "capable of being concealed" "on or about" the defendant.
  • Following an analysis of the statute's text and legislative history, the DCCA determined that the concealment element referred to whether the weapon was capable of being concealed on/about the defendant at the time of the incident, and not to whether the weapon was capable of being concealed by a hypothetical average person wearing clothing aimed at concealing the weapon (as the Supreme Court had interpreted a separate federal statute with superficially similar language).
  • When one's client is charged with CDW for carrying a large weapon, one should argue that the weapon is not capable of being concealed because of its size, the defendant's stature, the clothing worn by the defendant at the time of the incident, or some combination of the above.
  • The less clothing your client is wearing at the time of his or her arrest for CDW, the better the odds of victory at trial.
  • This opinion does not apply to D.C. Code 22-4504(a)'s prohibitions regarding pistols.  CK.

Thursday, July 31, 2014

Merely possessing what looks like an open bottle of alcohol is not itself enough to sustain a conviction for possessing an open container of alcohol.



Earl Workman v. United States, No. 13-CM-323 (decided July 31, 2014)

The Players: Fisher, Beckwith, Ferren.  Opinion by Judge Beckwith.  Montrell Scaife for appellant.  Trial judge: Harold Cushenberry.

The Facts: The police pulled Mr. Workman over for talking on his cell phone while driving.  While examining Mr. Workman's registration, one of the officers noticed what appeared to be a partially empty tequila bottle on the floor behind the driver's seat.  The officers removed Mr. Workman from the vehicle and searched the car for "additional contraband that would have coincided with the open container of alcohol." The search, however, yielded no such "contraband." Although the officers did photograph the tequila bottle, they did not examine it or "pick it up and look at it."  The traffic stop and automobile search ultimately led to Mr. Workman's arrest and conviction for possessing an open container of alcohol ("POCA").

Issue: Was Mr. Workman's conviction for POCA supported by sufficient evidence?

Holding: No.  Although the tequila label on the bottle was "solid proof of what was in the container when it was bottled and sold," that evidence "reveals much less about what the bottle contained after it was opened" and could not, by itself, constitute proof beyond a reasonable doubt.

Of note: The government can obtain a conviction for POCA based on circumstantial evidence, but the evidence must be more compelling than an officer's observation that an individual possesses what appears to be an open bottle of alcohol.  CK.

Read the full opinion here.

Tuesday, July 15, 2014

DCCA holds that a homicide defendant who was being shot at by the decedent’s associates was not entitled to a self-defense instruction for shooting the decedent because there was no evidence that the decedent himself was armed.

Photo by Earl via Flickr (CCL).

Katrell A. Henry v. United States, No. 12-CF-1152 (decided July 10, 2014)

The Players: Glickman, Thompson, Reid.  Opinion by Judge Thompson.  PDS for Mr. Henry.  Trial judge: Lynn Liebovitz.

The Facts:  The government’s main witness, Joseph Nelson, testified that he saw Mr. Henry and Laroy Bryant, the decedent, arguing in a parking lot. Nelson could hear that Bryant was using profanity and insulting Henry but could not hear Henry’s response; Nelson did not see anything in either’s hands.  Nelson saw Henry retreat toward the apartment building and Bryant walk toward a group of people hanging out by a dumpster; shortly thereafter, however, Henry returned with a gun and he and Bryant resumed arguing.  Nelson testified that he saw Henry “stumble back as if he had been pushed,” then raise his gun and begin shooting at Bryant’s leg, at which point several of the people by the dumpster began firing at Henry.  Nelson equivocated as to who fired the first shot, telling the prosecutor on direct and redirect that Henry shot first but stating on cross-examination that he did not know who had started the shooting. 

Henry testified in his own defense.  He stated that, weeks earlier, Bryant had threatened him with physical harm because Henry had informed Bryant’s new love interest (who was the mother of one of Henry’s children) that Bryant was a drug dealer and was rumored to have HIV.  Being “deathly afraid” of Bryant and his “boys,” Henry had tried to avoid him, began looking for a new place to live, and also began carrying a gun.  On the night of the shooting, he inadvertently encountered Bryant, who began “cussing” at and threatening him.  Although Henry initially ignored the insults, when Bryant called to him, Henry walked over and said he had had “enough of” the “bullshit.”  Bryant then pushed him with two hands; as Henry was falling backwards, he saw two of Bryant’s “boys” by the dumpster pull out guns and begin firing at him.  Henry testified that he was shot before he even had his gun out of his pocket.  He then fired three or four shots toward the shooters near the dumpster, who fired a couple shots back and then ran away.  According to Henry, he never fired in Bryant’s direction; rather, it was actually Bryant’s “boys” who shot and killed Bryant. 

Defense counsel requested a self-defense instruction on the theory that Henry could have reasonably believed that shooting Bryant would cause Bryant’s associates by the dumpster to cease shooting at him.  The trial court rejected that argument and instructed the jury that the self-defense instructions applied only to Henry’s shooting toward the people by the dumpster, not to his shooting of Bryant.  On appeal, the defense presented a slightly different self-defense theory: that a self-defense instruction was required with respect to Bryant because there was evidence from which the jury could infer that Henry actually and reasonably believed that Bryant was about to shoot him.

Issue:  Did the trial court err in refusing to give the requested self-defense instruction because the jury could have reasonably believed, on the evidence before it, that Bryant was “about to join in the affray” and “was about to start shooting as well”?

Holding:  No.  Although there was evidence from which the jury could infer that Henry actually and honestly believed that his life was in danger, there was no evidence from which it could infer that he reasonably believed that Bryant “was about to start shooting him” because there was no evidence that Bryant was armed.  Although Henry had seen Bryant with a gun a few years before, and Bryant was also a known drug dealer, the court concluded that those facts did not support a conclusion that Bryant was armed at that moment.  

Of note: 
·       Although Henry’s self-defense theory on appeal differed slightly from the theory he presented to the trial judge, it was properly preserved; because Henry presented the instructional claim to the trial court, he could make any argument in support of that claim on appeal.
·       Practice tip:  Remember, the law says that a defendant is entitled to a defense theory instruction so long as the requested instruction “is supported by any evidence, however weak.”  Higgenbottom v. United States, 923 A.2d 891, 899 (D.C. 2007). The court’s decision that Henry was not entitled to a self-defense instruction is very fact-specific, so defense lawyers should attempt to cabin Henry to its facts. CM


Friday, July 11, 2014

Seventy-five minute detention of juvenile suspect while police went to retrieve a witness for a show-up identification held an unreasonable seizure in violation of the Fourth Amendment.


In re D.M., No. 11-FS-1125 (decided July 10, 2014)

The Players: Blackburne-Rigsby, Pryor, King.  Opinion by Judge King.  PDS for D.M.  Trial judge: Patricia Broderick.

The Facts:  Anthony Pickett witnessed five juveniles break into a neighbor’s home.  His mother called 911 and Pickett provided a description of the juveniles, but before police could arrive, the juveniles exited the house and ran down the alley.  Pickett described the juveniles to the responding officer, who then broadcast a radio lookout for them.  Two canvassing officers saw a group of four young men standing outside an apartment building; when the males saw the police, they hurried into the building.  The officers followed them and stopped the group, asking them their names and general questions.  When a detective arrived, he noticed that D.M. matched the clothing of one of the lookout descriptions.  The officers released the other juveniles but detained D.M. while the detective returned to the scene of the burglary to bring Pickett for a show-up identification.  After seventy-five minutes, the detective returned with Pickett, who identified D.M. as one of the burglars.  D.M. moved to suppress the show-up identification on the ground that his seventy-five minute detention exceeded the scope of a reasonable Terry stop.  The trial court denied that motion, and D.M. was adjudicated guilty, in a bench trial, of burglary, theft, and felony destruction of property.

Issue:  Did the police’s detention of D.M. for seventy-five minutes while they waited for the detective to bring a witness for a show-up identification violate D.M.’s Fourth Amendment right against unreasonable seizures?

Holding:  Yes.  While a seventy-five minute detention is not per se unreasonable, here the government failed to meet its burden of proving that the police acted diligently and that the lengthy delay was necessary to complete their investigation.  Although the evidence showed that Pickett had gone to work after calling 911, and thus “had to return from work before he could participate in the show-up identification” (slip op. at 20), the government presented no evidence about where Pickett worked, how far away it was, how long it took him to return, or at what time the officers contacted him.  Thus, any conclusions about whether the police acted diligently or whether the delay was necessary would be entirely speculative.

Of note: 
·       Although the court emphasizes that there is no bright-line rule that detentions of a certain length are per se unreasonable, it acknowledges that it has “never upheld a seizure for over an hour while police arranged a show-up identification” (slip op. at 11), and that it is “not aware of any precedent in any jurisdiction upholding the detention of a suspect for over an hour while a show-up identification was arranged” (slip op. at 12).
·       The court rejects the notion that a detention is unlawful if there existed “less-intrusive means by which the police could have accomplished their investigation,” explaining: “[W]e review whether the police acted reasonably in pursuing the investigative methods they chose under the circumstances—not whether other reasonable, though perhaps less-intrusive, methods were available” (slip op. at 15).  CM