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

Monday, July 7, 2014

No, dumping Brady shortly before trial along with other disclosures without identifying it as Brady is not okay. No, giving vague “summaries” of Brady information without details or source documents is not okay. No, the question is not whether the prosecutor can explain away the favorable information but whether defense counsel would want to know about it. And yes, if you, prosecutors, “betray Brady [or] give short shrift to Giglio … you will lose your ill-gotten conviction.”

Alonzo R. Vaughn & Carl S. Morton v. United States, Nos. 11-CF-228 & 11-CF-363 (decided July 3, 2014)

The Players: Judges Glickman, Easterly, and Pryor.  Opinion by Judge Easterly.  Cory L. Carlyle for Mr. Vaughn.  Amanda R. Grier and Saul M. Pilchen for Mr. Morton.  Trial judge: Robert E. Morin.  Trial prosecutors: Mary Chris Dobbie and Reagan M. Taylor.

Quick take: This is an important Brady opinion that, while quite lengthy, deserves a careful read.  Here are some highlights of important principles the opinion addresses:

  • Timing of Brady disclosures:  The goal of Brady “is not achieved by last-minute information dumps.  Rather, where disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.”  “Brady disclosures are required well before the scheduled trial date…”  Specifically, in this case where the government knew about the information at least two months before trial, disclosing it one week before trial was not timely.
  • Burying Brady in other disclosures and not identifying it as Brady:Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.”  In this case, the government argued that it had not suppressed the favorable information because it had disclosed it – or at least partially disclosed it – in a pre-trial motion.  The Court disagreed with the government in part because the government had not explicitly identified the information as Brady material.   

  • Brady “summaries” instead of source documents:  “Even if it is theoretically possible for the government to fulfill its disclosure obligations under Brady by means of summaries of preexisting documents, such summaries must be sufficiently specific and complete…. [W]e consider the required level of detail from the perspective of the defense; where source documents exist, the government must summarize … them with every detail that might have been relevant to defense counsel’s preparation as counsel viewed the case.  This may be challenging for the government, which presumably is not privy to defense counsel’s thoughts and theories pretrial.  Accordingly, the government withholds source documents at its peril.” 

  • Duty to Search for Brady information: The government has a duty to search branches of government closely aligned with the prosecution and “[f]or such an important witness [one of two witnesses to identify the defendants] the government should have had the systems in place to ensure that it was alerted immediately about impeaching information.”

  • Prosecutors’ assessments of favorability, part 1: When a prosecutor is confronted with facially exculpatory evidence (in this case a report that concluded a key witness had made false statements) she cannot suppress it simply because she can explain it away (in this case the prosecutor apparently disagreed with the report’s conclusions that the witness had made false statements).     

  • Prosecutors’ assessments of favorability, part 2: “The defense perspective controls” the determination of whether evidence is favorable or not for Brady purposes, the question is whether the information is “of a kind that would suggest to any prosecutor that the defense would want to know about it because it helps the defense.”

  • Materiality: Impeachment evidence, showing a key witness’s track record for untruthfulness and willingness to make false reports in a context similar to the case at hand, which could provide fodder for additional questions on cross-examination, is material for Brady purposes.

  • Prosecutors’ assessments of materiality: “The materiality assessment this court conducts on appellate review is necessarily different from the materiality assessment the government can make pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the government must disclose information that is ‘arguably’ material.”

The Facts:  The defendants were convicted of aggravated assault and assault on a law enforcement officer in connection with an incident at the D.C. Jail in which a group of men attacked a fellow inmate and a corrections officer, Sergeant White.  The victims could not identify Morton or Vaughn, but multiple security cameras had captured footage of the incident.  While the recordings were low quality, two other corrections officers testified that they could identify Morton and Vaughn from the footage.  Unbeknownst to the defendants, one of the witnesses, Officer Childs, had a significant credibility issue. 

Six months before the attack on Sergeant White, Officer Childs had filed a report accusing a different inmate of assault, thereby justifying Childs’ use of a chemical agent against the inmate.  Childs’ claim was investigated by the Department of Corrections (DOC) Office of Internal Affairs (OIA).  The DOC OIA final report determined that video footage of Childs’ use of the chemical agent did not show the alleged inmate assault.  The final report resulted in Childs’ demotion from Lieutenant to Sergeant. 

The OIA Officer who wrote the final report on Childs also assisted in the investigation of the Sergeant White assault.  That officer stated in a post-trial affidavit that he informed the United States Attorney’s Office, two months before Vaughn and Morton’s trial, about the OIA report and Childs’ demotion.

The prosecution, however, did not disclose the information from the OIA Officer or the report before the trial.  Instead, only one week before trial, the government filed a motion to preclude the defense from questioning Childs about the misconduct in the OIA report.  In the motion the government provided a “summary” of the report that gave no indication that the OIA had investigated a potentially false allegation of an inmate assault by Childs and had in fact determined the allegation was false, nor did the summary reveal Childs’ resulting demotion.  The summary instead focused on a portion of the report finding that Childs’ properly used the chemical agent (the prosecutor even quoted a portion of Childs’ incident report that was discredited in the final OIA report to claim that the inmate had been acting aggressively).  The government did disclose that the final report concluded that Childs’ had inaccurately stated that the inmate was unrestrained, but portrayed the report’s conclusion with skepticism because Childs had only “suggested” the inmate was unrestrained.

The government did not provide the trial judge with a full copy of the report; instead – ex parte – the government provided what it said was the final report but was only the first five pages of the ten page report, leaving out the findings adverse to Childs, which began on the sixth page.  When the trial judge asked if he had the complete report because what he had stopped at page 5, the trial prosecutors did not alert the judge that his copy was incomplete and one of the prosecutors said “‘yeah, mine is five pages long[.]’”  The trial court denied defense counsel’s requests for disclosure of the actual report rather than the government’s summary. 

Based on the government’s objections, the defense was limited to asking Childs only if he had submitted a false report and if he had been disciplined for submitting a false report.  Childs answered “no” to both questions and the defense had no means of challenging these responses.  The defendants were convicted.

After the trial, the trial court ordered disclosure of the actual report in response to a defense motion for a new trial.  The trial court, however, denied the motion for a new trial, concluding that there had never been a finding that Childs had made a false report, that Childs’ demotion was informal, and that therefore the information from the DOC OIA would not impugn Childs’ credibility. 


The trial court’s clearly erroneous fact-finding: The trial court was misled and its adoptive fact-finding was clearly wrong.  The OIA report concluded that Childs had falsely accused the inmate of the assaultive behavior, that Childs filed false reports to that effect, and that Childs falsely suggested the inmate was not restrained.  The inference – from the OIA investigator’s post-trial affidavit – is that the OIA credited all of the conclusions in the report and meted out significant discipline by demoting Childs from Lieutenant to Sergeant.

Favorability:  The OIA determination of false reporting “was clearly impeaching, and was the sort of information in which any competent defense lawyer would have been intensely interested.”  The favorability of the report “does not turn on its ultimate truth or the government’s assessments thereof.  The government could not withhold this information because it did not trust [the report’s] conclusions … or because it did believe its witness, Officer Childs, who professed innocence of false reporting …”

Suppression:  The motion in limine the government filed one week before trial seeking to foreclose cross-examination of Officer Childs about the chemical spray incident was not a Brady disclosure.  The government did not cite Brady or indicate that the information was favorable.  “Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.”

The motion was not timely.  The government knew about the OIA report two months before trial, but disclosed nothing about it until a week before trial, and then withheld the actual report and other important information until after the trial.  The goal of Brady “is not achieved by last-minute information dumps.  Rather, where disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.”  Furthermore, “Brady disclosures are required well before the scheduled trial date….  Only in this way can we ensure defense counsel has an opportunity to investigate the facts of the case and, with the help of the defendant, craft an appropriate defense.”

In fact, the government had an obligation to disclose before it learned about the report: it had an obligation to disclose that Childs was under investigation by the DOC OIA.  Even if it had been a Brady disclosure, the belatedness of the motion is not excused by the fact that the government did not learn of the investigation until a few months before trial.  The government has a duty to search branches of government closely aligned with the prosecution and “[f]or such an important witness … the government should have had the systems in place to ensure that it was alerted immediately about impeaching information.”

Furthermore, the motion was neither accurate nor complete.  “Even if it is theoretically possible for the government to fulfill its disclosure obligations under Brady by means of summaries of preexisting documents, such summaries must be sufficiently specific and complete…. [W]e consider the required level of detail from the perspective of the defense; where source documents exist, the government must summarize … them with every detail that might have been relevant to defense counsel’s preparation as counsel viewed the case.  This may be challenging for the government, which presumably is not privy to defense counsel’s thoughts and theories pretrial.  Accordingly, the government withholds source documents at its peril.”  The motion here “did not come close to satisfying our standards ….”  The motion presented as true that which the OIA had determined false – Childs’ claim that the inmate acted aggressively – and used the false story as a backdrop to portray the investigation as merely an inquiry into excessive force and sloppy report-writing.  It also omitted the disciplinary consequences. 

“In the absence of a timely, accurate, complete, or usable disclosure,” the Court concluded the favorable information was suppressed.

Materiality:  The information “was powerfully impeaching,” it established Childs’ track record of untruthfulness and “established that he was willing to make false reports implicating inmates in assaults on law enforcement agents – the precise context of this case.”  “[A]t the very least, defense counsel would have had a firm foundation to press for much more leeway in cross-examining Officer Childs.”  The Court could envision “a series of permissible, pointed questions by defense counsel that would have seriously damaged Officer Childs’s credibility in the eyes of the jury – whether he answered them truthfully or tried to avoid giving a truthful answer.”

Morton’s convictions reversed and remanded for new trial.  Vaughn’s convictions were not reversed on Brady grounds because his post-trial litigation position – in the form of an affidavit – admitted that he was the person identified by Childs on the video.

Of Note:
  •  “Some courts have held that where the government engages in deliberate Brady misconduct, a new trial should not be held. We neither endorse nor foreclose such an argument by the defense on remand.”  The government on remand is required to represent – “in writing, filed with the trial court” – that it has fulfilled its duty to learn of and disclose to the defense all Brady information in its actual or constructive possession before it can retry Morton.
  • The court also reversed Mr. Vaughan's aggravated assault conviction on the ground that the trial court's jury instruction on aiding and abetting was plainly erroneous because it “inappropriately combined the standards for aggravated assault and felony assault, instructing the jury that it could find the defendant guilty of aggravated assault if it found the defendant had the lesser mens rea for felony assault.”  Vaughn’s participation was very limited, so there is at least a reasonable probability that the jury relied on the lesser mens rea to convict him of aiding and abetting the aggravated assault.  JA


Wednesday, June 25, 2014

One crime or two? DCCA provides useful guidance on special unanimity instructions, merger, and the relationship between the two.

Photo by David Cosand via Flickr (CCL).

Bryant & Hagood v. United States, Nos. 12-CF-148 & 12-CF-389 (decided June 19, 2014)

The Players: Washington, Fisher, Ruiz.  Opinion by Senior Judge Ruiz.  Christine Pembroke, Esq., for Marquet Bryant.  PDS for Robert Hagood.  Trial judge: Florence Pan.

The Facts:  This case centered around a series of interactions between the defendants and the occupants of a particular apartment.  Bryant and Hagood were standing with others outside an apartment building when Jerome Edmonds exited his girlfriend’s apartment and walked past en route to purchase cigarettes.  After Hagood twice insulted Edmonds, Edmonds confronted him verbally, at which point Bryant pulled out a revolver and handed it to Hagood.  As Edmonds backed up into the apartment, Hagood tried to push through the door, but the occupants were able to push him out and shut it.  They then heard a couple of kicks to the door followed by a gunshot; a bullet went through the door and grazed Edmonds’s ankle.  The occupants called 911, but the call was mislabeled a destruction of property complaint and not given priority.  While the occupants were calling 911 a second time, Hagood walked through the unlocked front door and said “What’s up” to Edmonds, at which point Edmonds rushed forward and pinned him against the wall.  Bryant, meanwhile, stood in the doorway with the revolver.  After two other occupants pushed him back into the hallway, Bryant raised the gun and fired once into the ceiling.  Both defendants were charged with and convicted of attempted first degree burglary while armed, assault with a dangerous weapon (ADW), and two counts each of possession of a firearm during a crime of violence (PFCV) related to the attempted burglary and ADW charges; Hagood was also convicted of malicious destruction of property, but Bryant was acquitted of that charge.

The bulk of the court’s opinion centers on the two claims raised by both appellants: (1) a challenge to the trial court’s failure sua sponte to give a special unanimity instruction, and (2) a claim that their PFCV convictions merge.  (Bryant also raised several other claims that the court disposed of quickly at the end of the opinion; we do not address them here.)

Issue 1:  Did the trial court commit clear error in failing sua sponte to give a special unanimity instruction (i.e., an instruction that, to find the defendant guilty, all jurors must be unanimous as to which of the two incidents at the apartment door he was guilty of)?

Holding 1:  Yes.  A special unanimity instruction is required when “the jury could have perceived that the defendant engaged in more than one criminal act, and thus some jurors could have returned a conviction premised solely on one factual predicate and others solely on a different factual predicate” (slip op. 15).  In this case, the jury could have reasonably perceived two separate incidents—indeed, the government characterized the defendants’ actions as “two burglaries” and “two shootings” in closing argument—and thus, even without a request from the lawyers, the trial court should have sua sponte given a special unanimity instruction to ensure that the jury would not base its convictions on different factual predicates.  (The court found the error clear but declined to reverse under plain error review.)

Issue 2:  Did the appellants’ PFCV convictions arise out of the “uninterrupted possession of a single weapon during a single act of violence,” such that they merge for Fifth Amendment purposes, or were they two distinct acts that may be punished separately?

Holding 2:  Appellants’ PFCV convictions merge.  Hagood’s attempted burglary—his initial attempt to enter the apartment—was immediately followed by his ADW (shooting through the door).  These events “unfolded in rapid succession,” and Hagood “would not have had the time to pause to reassess his situation before firing the gun in reaction to having the door closed on him” (slip op. 32).  Likewise, Bryant’s attempted burglary—his attempt to enter the apartment after Hagood’s second entrance—was what prompted his ADW (shooting into the ceiling), and  “[t]here was no appreciable point at which Bryant could have reconsidered his actions and yet chosen to inflict a new, distinct harm—it was all part of providing armed support for Hagood” (slip op. 33).

Of note: 
·     The DCCA’s case law on when special unanimity instructions are required often uses the same test used to determine whether offenses are distinct for merger purposes—the “fork-in-the-road” or “fresh impulse” test.  This case makes clear, however, that the analyses are not identical.  The unanimity inquiry, which safeguards the Sixth Amendment jury trial right and the reasonable doubt standard, “focuses on the jury’s perception of the evidence presented at trial,” whereas the merger inquiry, which safeguards the Fifth Amendment protection against double jeopardy, focuses on “the defendant’s choice of actions at the time of the alleged crime” (slip op. 13).  While the “fork-in-the-road” test is a useful factor in determining whether the jury could have perceived that the defendant engaged in more than one criminal act (and thus that a special unanimity instruction is required), “unanimity and merger inquiries must be approached from different perspectives in light of the different constitutional principles they are meant to safeguard” (slip op. 14).

·     The government often argues that PFCV merger applies only where the predicate offenses were “wholly or nearly simultaneous.”  The court in Bryant rejects that argument, explaining that “the exact time-frame is less important than whether the defendant had an opportunity during that time to reflect on whether to abandon his criminal enterprise, but nevertheless chose to invade a new and distinct interest while armed with the same weapon” (slip op. 31).  Thus, in this case, although the appellants’ respective ADWs were not simultaneous with their attempted burglaries but followed at least a “momentary interruption,” the PFCVs attached to them merged because neither appellant would have had any appreciable moment to pause and reassess his situation.  CM

Friday, June 20, 2014

Defense child psychology expert properly excluded.

Girardot v. United States, No. 12-CO-144 (decided June 12, 2014)

Players:  Associate Judges Fisher, Blackburne-Rigsby, and Senior Judge Pryor.  PDS for appellant.  Trial Judge Mitchell-Rankin.  Opinion by Judge Fisher.

Facts:  Mr. Girardot was convicted of two counts of misdemeanor sexual abuse—one against an eight year old and the other against a ten year old—after a 2006 bench trial.  At the trial, Judge Mitchell-Rankin excluded the defense’s expert on child psychology, who intended to testify about the suggestibility of children and other psychological factors that make the young girls’ reports of abuse less reliable than a lay person might intuitively think.  Judge Mitchell-Rankin excluded the defense expert, finding that the topic of her testimony was “not beyond my ken” and concluding that the testimony would not help her in reaching a verdict.  The Court of Appeals reversed that exclusion, finding that the relevant question—even at a bench trial—is whether the expert testimony is beyond the ken of the average person, not beyond the ken of the judge. 

On remand, the court held an evidentiary hearing focused on the defense expert’s qualifications.  Judge Mitchell-Rankin also heard the expert’s substantive testimony, telling the parties “[w]e’re going to proceed as if the issue of qualifications has been resolved to get to the substantive testimony.”  After hearing the testimony, the judge excluded it, finding it lacking on each of the three Dyas prongs:  specifically, that (1) the subject matter of the expert’s testimony was not beyond the ken of the average layman, (2) the proffered expert did not have sufficient skill or expertise in the area, particularly because none of her numerous academic books and articles were on child sexual abuse, and (3) the state of scientific knowledge did not permit the expert to state a reasonable opinion because there was no generally accepted scientific methodology.  As an alternative holding, the Court stated that the expert’s opinion would not have affected her verdict in any event, even if she had considered it as admitted evidence.

Issue:  Whether the trial court abused its discretion in excluding the defense proffered expert on child psychology and suggestibility.

Holding:  The trial court did not abuse its discretion when excluding the expert testimony.  For the past few years, the Court has issued a series of opinions reprimanding trial courts for excluding defense experts about witness reliability as a matter of course.  However, those opinions involved errors where the trial courts acted without considering the Dyas factors or by invoking some presumption against admitting defense experts of this type.  When reversing in those cases, the DCCA never controverted the basic principle that the trial court has discretion in these matters, and just as trial courts should not make rote exclusions of these experts, neither should they admit them as a matter of course.  The trial court carefully weighed the Dyas factors as required, and did not abuse its discretion in doing so.

Read full opinion here.

Thursday, June 19, 2014

Evidence insufficient to support convictions, despite complainant’s positive identifications of respondent, where complainant explicitly stated that a photograph of respondent taken hours after the incident was not a picture of his assailant.

In re A.W., No. 11-FS-1583 (decided June 12, 2014)

Players:  Judges Glickman, Schwelb, and King.  Opinion by Judge Schwelb.  Dissent by Judge King.  Shirin Ikram, Esq., for A.W.  Trial judge: Milton C. Lee.

Facts:  The complainant was riding on the metro and had his cell phone out, texting, when four young people boarded at the Chinatown stop.   A few minutes and two stops later, when the train arrived at Union Station, the four youths exited the train and as they did, one of them grabbed the complainant’s phone.  The complainant held onto his phone, and in the ensuing struggle somebody—not the person who grabbed his phone—punched him in the side of his head and knocked him to the ground.  The group then ran off, leaving the cell phone behind with the complainant.  In reporting the incident to officers, the complainant described the group of four individuals, and specifically described the would-be phone snatcher as having short hair and almond-shaped eyes; he also described a 6-foot-tall transgendered person with a muscular build and a curly wig, but specifically indicated that the transgendered person was not the one who tried to steal his phone. 

Later that evening, officers found and questioned a group of four youths who matched the complainant’s description outside the Chinatown metro stop.  According to one of the testifying officers, appellant A.W. told the officer “we didn’t do anything to that white man.  He fell on his own.  We didn’t do anything to that man at Union Station.”  At that point, the officer took a photograph of A.W., which showed A.W. with long curly hair.  The officer later interviewed A.W., who indicated that he was on the train with the complainant but that he was not the one who punched or tried to rob the complainant.  Ten days after the incident, the complainant was shown a photo array that included a two-year-old photo of A.W., whom he identified as his assailant, commenting on his distinctive almond-shaped eyes.  At the bench trial, the complainant also made an in-court identification of A.W. as the person who tried to steal his phone.  However, when shown the photograph that an officer took of A.W. two-and-a-half hours after the alleged assault, the complainant stated, “that’s not the person who took my phone,” commenting that A.W.’s eyes in that photo were “very round and open,” and not the almond-shaped eyes he found so distinctive.

The judge acquitted A.W. of aggravated assault but found him guilty of assault with intent to rob and misdemeanor destruction of property, citing as support the complainant’s in-court identification of A.W. and the positive identification he had made ten days after the incident.  The fact that the complainant specifically stated that the person in the photograph of A.W. taken two-and-a-half hours after the incident was not his assailant did not sway the judge, who reasoned that A.W. may have gone home and made efforts to change his appearance, for example, by putting on a wig. 
Issue: Whether the evidence was insufficient to prove assault with intent to rob and malicious destruction of property, where the complainant positively identified the respondent in court, but also explicitly stated that a photograph of the respondent taken mere hours after the incident was not a picture of his assailant.

Holding:  The evidence was insufficient to substantiate the convictions.  The court begins by briefly recapping the “extensive judicial experience and scholarly research” on eyewitness identifications, noting the difficulties with convictions based on a single eyewitness’s identification.  The heart of the court’s opinion, though, is that when the complainant was shown the photograph of A.W. taken just two-and-a-half hours after the incident, he “without the slightest hesitation, . . . emphatically and spontaneously volunteered that ‘that’s not the person that took my phone.’”  Also, the Metro surveillance footage taken contemporaneously with the incident showed A.W. as having long, curly hair, not the short hair the complainant ascribed to the phone snatcher.  Given all that evidence, and acknowledging that “the reasonable doubt standard of proof is a formidable one,” the court held that the record could not support the convictions.  Judge King dissented, concluding that “there was much to support the trial judge’s conclusion that the identification was reliable” and that the complainant’s statement that the photograph of A.W. did not depict his assailant was “not decisive.”  JD.

Read the full opinion here.

Thursday, June 12, 2014

88-page opinion yields too many issues to discuss in one snappy caption.

Hagans et al. v. United States, 04-CF-253 (decided June 5, 2014)

The Players: Chief Judge Washington and Associate Judges Glickman and Reid. Opinion by Judge Glickman. Veronica Holt, Lisa Schertler, Matthew Krueger, and Matthew Hoffman for appellants. Trial Judge: Robert Richter.

The Facts: In about 1999, a feud escalated between two Petworth drug gangs, the Delafield crew and the Mahdi brothers, resulting in a number of shootings. In 2001, numerous members of both gangs were indicted. Harrell Hagans and Brion Arrington, two of the three leaders of the Delafield gang, and Warren Allen and Gary Leaks, two lower-ranking members, were charged with various counts of murder, assault with intent to kill while armed (“AWIKWA”) , and weapons offenses.

At trial, lightly redacted plea proffers from four Mahdi brothers were admitted into evidence over defense objections, and the judge told the jury that the proffers were only there to cast some light on the relationship between the two gangs, not as evidence of what anyone other than the Mahdis had actually done. The Mahdi brothers themselves asserted their Fifth Amendment privilege not to testify at the trial, so they were not available for cross-examination; the government later conceded that admitting the plea proffers under these circumstances violated the Sixth Amendment’s Confrontation Clause. The prosecution also made use of several extra-judicial statements by some of the defendants, which were admitted under the party opponent exception to the rule against hearsay. At one point, the prosecution introduced evidence of a shooting on Roxboro Place in which Arrington and another Delafield gang member killed two people; the case included no charges arising out of the incident, and the evidence was admitted solely to establish that Arrington owned two guns that were later used in the charged crimes. In order to avoid undue prejudice to Arrington, any mention of the two deaths was excluded.

One witness for the prosecution, Jason Smith, testified that he was taking certain medications to help him sleep. The defense wanted to call the chief psychiatrist at the DC Jail to testify that Smith was actually taking those medications for auditory hallucinations and other psychotic symptoms, which he had probably developed after being sexually assaulted at the jail. The court ruled that if the defense introduced that testimony, the prosecution would be allowed to counter with Smith’s grand jury testimony (given before his sexual assault in jail), which was consistent with his trial testimony. The defense opted not to call the psychiatrist, so the grand jury testimony was not introduced. Another prosecution witness, Charles Payne, was impeached with his grand jury testimony, and the prosecution was subsequently allowed to refer repeatedly to that testimony in its closing argument in order to argue that it was consistent with Payne’s trial testimony.

Issue 1: Did the unconstitutional admission into evidence of the Mahdi brothers’ plea proffers constitute reversible error?

Holding 1: The mountains of other evidence against the appellants dwarfed the Mahdi brothers’ proffers, which the government didn’t rely that heavily on anyway, so it was clear beyond a reasonable doubt that the error didn’t contribute to the verdict.

Issue 2: Could the out-of-court statements of some defendants be admitted under the party opponent hearsay exception in a conspiracy case where the jury was given a Pinkerton instruction on vicarious liability? And were they sufficiently redacted?

Holding 2: The defense counsel didn’t object to the admission of these statements specifically enough at trial, so a plain error standard applied, and there was no plain error. Some of the extra-judicial statements in question likely would have been admissible under another hearsay exemption (for example, as statements against penal interest or as statements by co-conspirators during and in furtherance of the conspiracy). Furthermore, because of the aforementioned mountains of evidence against the appellants, the extrajudicial statements hadn’t been essential to the outcome of the trial. One witness’s testimony was not sufficiently redacted to protect three of the defendants, but they weren’t entitled to a new trial because, again, there was so much other evidence that the error was harmless.

Issue 3: Did the trial court abuse its discretion by admitting evidence of the Roxboro Place shooting? Should it have severed Hagans’s trial from Arrington’s so that Hagans could freely cross-examine the witness on the resulting deaths?

Holding 3: No and no. Although it was prejudicial, the evidence tying the guns to Arrington had considerable probative value. The court properly kept the jury from hearing about the two resulting deaths and instructed it on the limited use it could make of the evidence. Hagans wanted to cross-examine the witness on the deaths in order to impeach him (the witness had participated in the shootings alongside Arrington), but Hagans had already amply impeached the witness, so he was not unduly prejudiced.

Issue 4: Did the trial court err in ruling that Smith’s grand jury testimony would be admissible to rehabilitate him if the defense impeached him with the psychiatrist’s testimony? If so, were the appellants’ Confrontation Clause rights violated because their ability to impeach Smith was restricted?

Holding 4: The trial court did not err, because courts have broad discretion to allow prior consistent statements for the purpose of rebutting suggestions that a witness’s trial testimony is a recent fabrication. The prior statement must have been made when the supposed reason for the fabrication did not exist, which was satisfied here because Smith’s hallucinations were more likely than not caused by the sexual assault in jail. The appellants’ Sixth Amendment confrontation rights were not infringed even if they were dissuaded from exercising them by the court’s ruling.

Issue 5: Did the prosecution improperly refer to Payne’s grand jury testimony, which had not been admitted into evidence, to bolster Payne’s credibility?

Holding 5: No. The prosecution’s assertions that Payne’s grand jury testimony was largely consistent with his trial testimony had a basis in the record, as the defense had impeached Payne on only minor points. Although prior consistent statements generally can’t be introduced to rehabilitate a witness, the prosecution’s use of the grand jury testimony fit within the “rule of completeness” and “recent fabrication” exceptions. Regardless, the appellants suffered no substantial prejudice, so it wouldn’t have been reversible error anyway.

Issue 6: Should Allen and Leaks have been granted separate trials, as they were accused only of involvement in a single incident but the jury heard lots of prejudicial testimony about other crimes that didn’t involve them?

Holding 6: No, the trial court was within its discretion to deny the motions for separate trials. Since this was a conspiracy trial, evidence of crimes that Allen and Leaks weren’t directly involved in was relevant and might have been admitted against them even if their trials had been severed from Hagan’s and Arrington’s. Even aside from that, there was no “spillover” prejudice because the government was careful to present its evidence incident by incident to avoid confusing the jury.

Issue 7: Was there sufficient evidence of intent to convict Allen and Leaks of first-degree murder and AWIKWA?

Holding 8: Yes. The two set out, along with Arrington and Hagans, to shoot up the Mahdi brothers’ corner of the neighborhood, and they “unleashed an indiscriminate attack that lasted for minutes.” The two women who were shot (one fatally) were innocent bystanders caught in the “wide zone of lethal danger” that appellants intentionally created, which was sufficient intent to support the convictions.

Issue 8: Even if none of the individual errors warrants reversals of the convictions, does the cumulative effect of all the errors put together?

Holding 8: No. It is unclear what standard applies when evaluating the cumulative effect of a “mixed bag of errors” (containing preserved constitutional error, preserved non-constitutional error, and unpreserved error), but even under the most pro-reversal standard the government’s case was so strong that there is no reasonable possibility that the errors affected the trial outcome.  Sam Feldman, pinch hitting.