Friday, August 19, 2016

“Do Not Disturb”: Fruits of Warrantless Entry into Motel Room Suppressed

Nyia Gore v. United States (decided August 18, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor. Opinion by Judge Glickman. Bryan P. MacAvoy for Ms. Gore. Trial Judge Zoe E. Bush.

Facts: Officers Tobe and Collins responded to a 911 call at a Motel 6 in Northwest, Washington, D.C. The caller, Mr. Ward, met the officers in the parking lot and requested help retrieving property from Ms. Gore, who resided in a room with her two children and refused to let him back in. Mr. Ward showed the officers a text message from Ms. Gore that said she had “trashed [his] shit.”

The officers knocked and identified themselves. Ms. Gore opened the door but did not come out. When asked about the property, she stated she had already thrown it away outside. Officers told Ms. Gore she had committed a crime and would be arrested unless they could retrieve the property. Upon learning that Mr. Ward was present, Ms. Gore shouted for him and walked toward the doorway but was met and handcuffed by the police, who entered the room without her consent. Thus detained, Ms. Gore admitted destroying Mr. Gore’s property, which was still in the bathroom. Officer Tobe then escorted Mr. Ward to the bathroom where his property lay ripped, torn, and broken. Ms. Gore was later charged with and convicted for misdemeanor malicious destruction of property.

Issue 1: Whether the evidence was sufficient to sustain the conviction?

Holding 1: Yes. These circumstances do not permit the Court to second-guess the trial court’s determination of Mr. Ward’s credibility.

Issue 2: Whether Ms. Gore’s unwarned statements should have been suppressed under Miranda?

Holding 2: No. Ms. Gore’s freedom of movement was not restrained enough for her to be considered in custody, when the police were outside her door. The Court need not determine the admissibility of her subsequent unwarned statements under Miranda because it finds that they should have been suppressed under the Fourth Amendment (see below).

Issue 3: Whether fruits of the warrantless entry into Ms. Gore’s apartment should have been suppressed?

Holding 3: Yes. Although police had probable cause to believe that Ms. Gore had maliciously destroyed Mr. Ward’s property and perhaps even that evidence of that crime might be found in the room, there were no exigent circumstances to justify warrantless, nonconsensual entry. Officer Tobe’s testimony that police “could have” gotten a warrant did not prove inevitable discovery where the police had not begun that process at the time of entry.

Of Note:
  • By analogizing Ms. Gore’s room to a house, the Court of Appeals indirectly repudiates the trial court’s assessment that the police were allowed to enter with mere probable cause to arrest her. This analogy comports with well-settled Supreme Court caselaw. See Hoffa v. United States, 385 U.S. 293, 301 (1966); Stoner v. California, 376 U.S. 483, 490 (1964).
  • The house analogy is also the undoing of Ms. Gore’s Fifth Amendment claim, as the Court of Appeals cites home-based “knock and talk” cases to support that the attempt to interview her from outside the room was noncustodial: e.g., Hughes v. United States, 640 F.3d 428 (1st Cir. 2011);United States v. Titemore, 437 F.3d 251 (2d Cir. 2006). 
  • This analogy is not without complications. In Hughes, two law enforcement officers interviewed appellant in the living room of his relatively small, island house, while another was in the kitchen and still another wandered in and out of the house. 640 F.3d at 432. The First Circuit found this encounter noncustodial, noting, among other things, Hughes’s familiarity with the house and the lack of any attempt to “exploit its cozy confines.” Id. at 436. The Second Circuit found that Titemore had not been subject to custodial interrogation when police approached his lakeside Vermont home from a side door and asked to speak about a report of vandalism and a missing firearm. Titemore, 437 F.3d at 260. Police attempts to exploit aside, Ms. Gore’s motel room was arguably much “cozier” and less familiar than either of these settings. Advocates in future cases should emphasize the psychological impact of such circumstances where possible.  WC

Wednesday, August 17, 2016

EMAILGATE: Courtroom Clerk Emails Prosecutor Mid-Trial To Tell Him The Witness Is Lying About A Football Game.

Gordon Carpenter & Tyrone Jones v. United States (Decided August 11, 2016).

Players: Associate Judges Thompson and Easterly, and Senior Judge Farrell. Opinion by Judge Thompson. Marc Resnick for Mr. Jones and Abram Pafford for Mr. Carpenter. Trial Judge: Patricia Broderick

Facts: A jury convicted Mr. Jones and Mr. Carpenter of unlawful distribution of heroin after a buy/bust operation. Before trial, Mr. Carpenter moved to suppress physical evidence that police found during a search incident to arrest, a motion the court denied.

Then, during trial, an officer testified that as an arrest team member, he does not get too close to the undercover officers involved in buy/bust operations because that would put their lives in danger. Mr. Carpenter objected to this testimony and moved to strike. Judge Broderick refused to strike the testimony, even though she mused in open court that “there’s certainly no suggestion that life was endangered by these defendants.”

Finally, both defendants testified during trial that the money police saw them exchange during the buy/bust operation was actually them settling a sports debt. Mr. Jones had bet Mr. Carpenter $20 that the Washington Football Team would beat Mr. Carpenter’s favorite team (“probably” the Steelers, 49ers, or Dolphins). Mr. Jones lost that bet because the Washington Football Team lost that game. After the jury returned its verdict but before sentencing, the government notified the defense that the prosecutor had received an email from the courtroom clerk stating that the defendants were lying about the football game. The email exclaimed: “Washington WON that week, and they played the Oakland Raiders . . . so they are not telling the truth!!” Mr. Jones moved for a mistrial, which Judge Broderick denied because there was “no evidence that any of this information, which was public information that anyone could’ve gotten, ever got to the jury.”

Issue 1: Did the trial court err in denying the motion to suppress physical evidence police recovered from Mr. Carpenter?

Holding 1: No. As a threshold matter, the Court clarified that although Mr. Carpenter’s brief styled the issue as “whether there was probable cause for his arrest,” his argument focused on whether “the arrest team officers were justified in stopping him,” thus the Court treated the issue as whether there was reasonable articulable suspicion (RAS) for police to stop him. The Court held that there was RAS based on the lookout police received after the drug transaction: “two African American males, both had hats on, one had a gray hoody and white shirt and the other had a blue hood and a cane.” Police arrived at the scene within a minute and found appellants matching the description on the same block described in the lookout.

Issue 2: Did the trial court err by failing to strike the officer’s testimony that “he didn’t want to be too close to the undercover officers because he would be putting their lives in danger?”

Holding 2: Maybe, but the error was harmless. The Court noted that Judge Broderick seemed to agree when the testimony was objected to that it was irrelevant, and thus the Court opined that it would have “preferable” for her to strike the testimony. But “in light of the facts Judge Broderick at least signaled to the jury that this testimony had no bearing on Carpenter’s trial; that the government did not highlight this testimony in closing; and that the evidence establishing Carpenter’s guilt was otherwise strong,” the error was harmless.

Issue 3: Did the trial court err by denying a mistrial after the courtroom clerk’s ex parte communication with the prosecution during trial came to light?

Holding 3: No. The Court of Appeals noted that the email was “clearly improper” given Code of Judicial Conduct Rule 2.9(A)’s prohibition against judges “permitting” ex parte communications, and Rule 2.9 (D)’s requirement that judges “make reasonable efforts, including providing appropriate supervision” to ensure the rule against ex parte communications is “not violated by court staff.” Nevertheless, the Court held that “the record does not establish that Judge Broderick failed to caution her staff or to make the requisite reasonable efforts,” nor does it “establish that Judge Broderick learned of the courtroom clerk’s email or its contents before the government’s [ ] disclosure.” While Judge Broderick learned about the email before she sentenced Mr. Jones, the sentence Judge Broderick imposed — twenty months’ incarceration and three years’ supervised release, suspended as to all but six months’ incarceration and eighteen months’ probation, which was at the “very low end” of Jones’ twenty to forty-months guidelines range — belied any claim of prejudice. Moreover, Mr. Jones did not claim that the prosecutor took any action based on the clerk’s email or that the email affected jury deliberations.

Of Note: In footnote 19, the court noted that the “timing of the government’s disclosure of the email” was “troubling,” because “had the government disclosed it earlier, Judge Broderick would have been alerted in a more timely fashion to the need to instruct and admonish her courtroom clerk.”  DH

Tuesday, August 9, 2016

Court Upholds Restricting Evidence of Decedent’s Violent Character to Bare Fact of Prior Conviction, Where Details Underlying Conviction Might Paint Decedent as a “Bad Guy”

David A. Shepherd v. United States
 (decided August 4, 2016)

Players: Associate Judges Fisher and Thompson, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Shepherd. Trial Judge: Russell F. Canan.

Facts: Mr. Shepherd was convicted for shooting to death a new acquaintance, Henry Charles Miller, after a heated exchange of words. Mr. Shepherd claimed self-defense, testifying that Mr. Miller pulled a gun on him after the argument, that he then grabbed the gun, and that it went off during the ensuing struggle. Several eyewitnesses testified to the contrary that Mr. Shepherd produced the gun and shot Mr. Miller in the face at close range. To support its contention that Mr. Miller was the first aggressor, the defense was permitted to introduce evidence that he recently had been convicted of attempted robbery and misdemeanor assault. It was not permitted to introduce evidence that the assault conviction was for breaking into his ex-girlfriend’s house while highly intoxicated, tearing off her clothes, repeatedly slamming her head against a wall, spitting in her face, and hitting her in the head with a towel rod in front of her children.

Issue: Did the trial court abuse its discretion when it excluded the details of the decedent’s prior, violent assault on his ex-girlfriend?

Holding: No. While defendants in homicide prosecutions may be permitted to put on evidence of the decedent’s violent character to support a claim of self-defense, they do “not have an absolute right to introduce such evidence.” The trial court has “broad discretion” to decide how much and what type of first aggressor evidence the jury will hear and may exclude such evidence if its probative value is outweighed by the danger of prejudice. Factors to be considered in balancing the value of first aggressor evidence are: “[1] the form of proof (accusations or convictions), [2] whether presenting it would waste trial time or confuse the issues, [3] remoteness in time, [4] the decedent’s character in the interim, and [5] the ‘type’ of violence evidenced by the act.” Here, the Court of Appeals acknowledged that Mr. Miller’s prior assault “certainly” indicated he had a violent nature, and that the circumstances were similar to the charged shooting in that Mr. Miller was intoxicated at both times. Nevertheless, it held that the probative value of the prior assault was limited because the circumstances were otherwise quite different: an incident of domestic violence versus allegedly pulling out a gun and shooting someone Mr. Miller had just met. Moreover, the Court opined, the violent details of the prior assault did nothing to illuminate the sole fact truly at issue in this case: whether it was Mr. Miller or Mr. Shepherd who brought a gun with him to the scene where they met and argued. The risk that the jury would illogically conclude Mr. Miller brought the gun simply because of this persuasive evidence that he was a “bad guy” was substantial enough to justify the trial court’s exclusion of the prior assault details.

Of Note:
  • The Court acknowledged the difficulty of balancing probative value against prejudicial impact for specific instances of violent conduct by the decedent. Such evidence, it observed, is both the most convincing character evidence and the most likely to cause prejudice, confusion, surprise, or a waste of courtroom time.
  • The Court also considered Mr. Shepherd’s claim that the trial court erred in issuing, after the government mischaracterized several points of evidence in its rebuttal argument, only a standard curative instruction that the jury’s recollection controls. While the Court agreed that the prosecutor misstated the evidence and warned that “it is vital for a prosecutor to choose her words carefully” lest she “needlessly jeopardize convictions,” it deferred to the trial court’s conclusion that the statements at issue here were not “such a mischaracterization of the record to warrant any further remedy.” FT

Monday, August 8, 2016

Court Warns That Red Book’s “While Armed” Instruction Can Impermissibly Imply That Defendant Did, In Fact, Possess Charged Weapon

Nathaniel Cousart v. United States
 (decided August 4, 2016)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman. Opinion by Judge Steadman. Matthew J. Peed for Mr. Cousart. Trial Judge: Patricia A. Broderick.

Facts: Mr. Cousart was convicted of aggravated assault while armed (AAWA) for stabbing one Mr. Barrett with a knife, and with ADW for again taking out his knife and stepping threateningly toward a private security guard who came to Mr. Barrett’s aid. The security guard testified that he drew his gun in response, prompting Mr. Cousart to retreat and throw the knife down a sewer before he was apprehended. The trial court instructed the jury on AAWA using language taken virtually verbatim from Red Book Instruction 4.103, describing the elements of aggravated assault, followed immediately by Instruction 8.101(B), the “while armed” instruction. The latter began, “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use. . . .” In instructing the jury on ADW, the trial court read Red Book Instruction 4.101, Option A, which defines the attempted-battery theory of ADW. It did not include bracketed language from that instruction requiring the jury to determine whether Mr. Cousart “had the apparent ability to injure” the complainant at the time of the offense. The defense did not object to either instruction.

Issue 1: Was the trial court’s AAWA instruction an improper partial directed verdict that Mr. Cousart did, in fact, possess the knife as a dangerous weapon?

Holding 1: No. Considering the jury instructions as a whole, under the rigorous plain error standard of review, the Court of Appeals held that there was no reasonable probability that jurors would have understand the challenged sentence to mean they did not have to determine whether Mr. Cousart actually possessed the alleged knife (and whether the knife met the definition of “dangerous weapon”). Nevertheless, the Court urged trial judges to take care in using the Red Book’s “while armed” Instruction, which begins, “At the time of the offense, [name of defendant] was armed with, or had readily available,” followed by a bracketed list of weapons to which the enhancement applies. The Court warned that “when this instruction is simply tacked on to a prior instruction without a clear indication that it is a statement of what the jury must find and not an assertion that the defendant did in fact carry some particular item, it could be subject to misinterpretation.”

Issue 2: Did the trial court’s omission of the “apparent ability to injure” element from its ADW instruction require reversal?

Holding 2: No. The Court of Appeals assumed without deciding that an apparent ability to injure is a required element of attempted-battery assault (as it is for intent-to-frighten assault), but declined to reverse on plain error review. In light of the government’s evidence that Mr. Cousart advanced on the security guard while brandishing the knife in a frightening enough manner to prompt him to draw his gun, the Court concluded that there was no reasonable probability the jury would have reached a different verdict had it been instructed that it must find Mr. Cousart had the apparent ability to injury the security guard.

Of Note
  • The Court of Appeals also held that there was sufficient evidence of attempted-battery ADW based on Mr. Cousart’s pulling out his knife before stepping toward the security guard. It noted, however, that it was a “close” sufficiency call. FT

Friday, August 5, 2016

Unpreserved Error, but No Reversal, Where Trial Court Omitted from Reasonable Doubt Instruction Red Book Language Contrasting Burdens of Proof in Civil and Criminal Cases

Daniel Griffin v. United States (decided August 4, 2016)

Players: Associate Judges Fisher & McLeese, and Senior Judge Steadman. Opinion by Judge Fisher. Enid Hinkes for Mr. Griffin. Trial Judge: John McCabe.

Facts: Mr. Griffin was charged with various weapons offenses. Near the end of trial, the court circulated proposed jury instructions. The reasonable doubt instruction was taken verbatim from Red Book Instruction 2.108, except it omitted three lines comparing the burden of proof in civil and criminal cases: In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Defense counsel indicated approval of the proposed instructions. When the trial court read the instructions to the jury, it also omitted the opening line of the reasonable doubt instruction: The government has the burden of proving the defendant guilty beyond a reasonable doubt. The defense did not object, and Mr. Griffin was convicted on all counts.

Issue: Did the omissions from the reasonable doubt instruction require reversal?

Holding: On plain error review, the Court of Appeals found instructional error, but held that it did not require reversal. It was clearly error for the trial court to omit language from the Red Book instruction, which replicates the reasonable doubt instruction adopted by the en banc Court in Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc), because the Smith court advised “in the strongest terms” that trial courts are not to alter or embellish the language it crafted. Id. at 82-83. Nevertheless, the instructions as a whole — which contained the bulk of Red Book Instruction 2.108 along with several other statements that the government must prove each element of the charged offenses beyond a reasonable doubt — “correctly convey[ed] the concept of reasonable doubt” and did “not inaccurately describe that concept or lessen the government’s burden.” As such, the court’s error was not structural in nature and did not affect Mr. Griffin’s substantial rights. Because Mr. Griffin did not satisfy this third prong of plain error review, the Court of Appeals affirmed his conviction.

Of Note:
  • The Court emphasized that it continues “to discourage, ‘in the strongest terms,’ any deviation from the instruction prescribed in Smith.
  • The Court noted that where the trial court’s jury instructions misdescribe the burden of proof, a structural error results. When preserved by timely objection, such a structural error requires automatic reversal without the traditional harmlessness analysis. When unpreserved, such an error remains subject to plain error review, though the third prong of plain error review is automatically satisfied. FT

Friday, July 29, 2016

Critical defense witnesses should be granted immunity if expected testimony meets definition of exculpatory and material as defined in Brady, and limits on government’s ability to impeach such a witness who is forced to invoke the Fifth Amendment.

Kevin Young v. United States (decided July 28, 2016).

Players: Chief Judge Washington, Associate Judge Beckwith, and Senior Judge Reid. Opinion by Judge Beckwith.  Cecily Baskir for Mr. Young.  Trial Judge: Michael Ryan. Cecily Baskir for Mr. Young. 

Facts: In October, 2012, two Metro police officers responded to a disorderly conduct call and, upon arrival, observed two men arguing. They were later identified as Mr. Young and his nephew Maurice. The officers observed a white SUV nearby with the engine running. One police officer looked inside the car and saw a belt with an empty gun holster and handcuffs in the backseat as well as two vials in the driver-side door handle. The officer then asked Mr. Young if he was a police officer, and Mr. Young said he was not but had found the items. He also said he had “just drove up.”

Mr. Young walked back to the car and the officers saw him place his hands over the two vials. At that time, the officers noticed a smell they believed was PCP. When asked what he was covering up, Mr. Young said “oils.” He was then placed under arrest. At trial, it was stipulated the two vials contained 5.6 grams of liquid PCP. 

At a pre-trial suppression hearing, both Mr. Young and Maurice testified that Mr. Young had driven the car and his nephew Maurice was the only passenger. But at trial, counsel for Mr. Young raised a Carter issue by telling the court Maurice should be granted immunity because he would testify he was the last person to drive the car and the drugs belonged to him, making him a “critical defense witness.” Counsel for Maurice proffered to the court that Maurice would testify he had driven the car but that he had no knowledge of the drugs. Maurice had also testified at a suppression hearing that he was intoxicated at the time. The court concluded Maurice had a Fifth Amendment privilege and, because his testimony would be exculpatory, asked the government to decide whether to grant Maurice immunity. Ultimately the government told the court it would for DUI but not for the charges related to the drugs and underage drinking. The government’s reason was that his testimony he was driving would be “a clear instance of perjury” that the government could not “support.”

The court then reconsidered its ruling and concluded Carter was not implicated because Maurice’s testimony would not have been “clearly” or “wholly” exculpatory. The court said Carter would only be implicated, which would require the government to grant Maurice immunity or reach some other resolution to preserve Mr. Young’s right to a fair trial, if Maurice would have testified “the drugs were mine” or “I can tell you that the drugs weren’t mine.”

Maurice testified at trial without immunity and asserted his Fifth Amendment rights when asked if he was the driver or the passenger of the car and if he put the drugs inside the car. However, he then said he did not place the drugs in the car. On cross-examination, the government introduced Maurice’s suppression hearing testimony where he said Mr. Young had driven the car. 

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

Issue 1:  Did the trial court err in determining that Carter was not implicated because Maurice’s testimony would not be “clearly exculpatory”? 

Holding: Yes. The Court acknowledged that its cases have used both the term “exculpatory” and “clearly exculpatory” when laying out the test for trial courts to use under Carter. The test states that defense witness immunity is required upon a showing that: 1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and 2) the witness’s testimony will be material, exculpatory and not cumulative and is not obtainable from any other source. Carter v. United States, 684 A.2d 331, 340 (D.C. 1996). Because Carter emphasized that its rule “emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant,” citing cases that involve application of the Brady doctrine, the Court concluded that “exculpatory” in the Carter standard means the same thing as in the Brady context. Exculpatory evidence under Brady is evidence that “tends substantively to negate guilt.” As a result, the proffered testimony here was favorable to Mr. Young, and thus exculpatory because “it established that another person was the most recent occupant of the driver’s seat where the drugs were found and thus increased the likelihood that the drugs did not belong to Mr. Young.” Nothing more was required.

Next, the Court decided whether the government was “reasonable” in refusing to grant Maurice immunity because it believed he intended to clearly perjure himself at Mr. Young’s trial. In Carter, the Court stated that “a threat of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the trial judge [that] the government could not reasonably be expected to cloak in advance such testimony with immunity.” But in this case, the Court did not agree with the government that Maurice’s proffered trial testimony would constitute perjury. Even though Maurice’s proffered trial testimony would have been contrary to his testimony at the suppression hearing, he could have offered a “plausible explanation for the discrepancy, and it is not at all obvious that Maurice’s proposed trial testimony was the untrue account.” 

Further, consistent with Carter’s purpose of balancing the defendant’s Sixth Amendment right and the witness’s Fifth Amendment right, the question whether denial of immunity is reasonable relies in part on “whether there will be a distortion of the fact-finding process” should the government deny immunity.” Here, because the government introduced Maurice’s suppression hearing testimony after he had invoked his Fifth Amendment in response to questions asking if he was driving the car, there may have been such a distortion. The introduction of his suppression hearing testimony “distorted” the case because it allowed the jury to hear one version, his suppression hearing testimony, while never hearing the other version. The Court stated that while “[t]he Carter process was designed to alleviate this tension between Maurice’s and Mr. Young’s constitutional rights,” the government’s refusal to grant Maurice immunity and then presenting the jury with his previous statements after he had invoked his privilege actually “exacerbated this tension.” 

However, the Court affirmed Mr. Young’s conviction, finding Maurice’s testimony would not have been “material.” Carter, applying the Brady doctrine, requires that the proffered testimony be both exculpatory and material. Evidence is material if “there is a reasonable probability that  . . . the result of the trial would have been different” had the evidence been presented. Even had Maurice testified he was the driver of the car, the government presented “considerable evidence” of Mr. Young’s ability and intent to exercise dominion and control over the drugs: 1) he was riding in a car that smelled of PCP; 2) he attempted to cover up the PCP when the door was opened in front of the police officers; and 3) he asserted, incorrectly, that the vials contained “oils.” 

Issue 2: Was the evidence sufficient to convict Mr. Young of PWID?

Holding 2: Yes. The Court concluded there was sufficient evidence to support the element of PWID requiring proof beyond a reasonable doubt of Mr. Young’s intent to distribute. Though he possessed a very small amount of PCP, it was contained in two half-ounce glass vials that were each a quarter full. The government presented expert testimony that half-ounce vials are “usually” purchased by street dealers who “take the vials and stand ‘in an open air market,’ where they can . . . distribut[e] the liquid to customers who dip cigarettes in the PCP solution and smoke them.” The expert opined that the vials in this case were “identical” to the half-ounce vials which a street dealer purchases. As a result, even though the relatively small amount could have been consistent with personal use, the evidence was sufficient to prove the drugs were for sale “when their packaging is suited for distribution.” 

Of Note:

  • The opinion has several important holdings for future cases involving Carter and requests for the government to grant immunity to a “critical defense witness.”

  • First, the opinion makes clear that the government cannot refuse to grant a “critical defense witness” immunity simply because they expect the witness to contradict previous testimony. The Court said it must be “obvious that [the witness’s] proposed trial testimony was the untrue account.”

  • Second, Carter does not require a heightened standard for showing the expected testimony would be “exculpatory.” It does not have to be testimony, as the trial court here believed, that would “wholly” exonerate the defendant. Instead, the Court states that the standard in the Carter context is the same as in Brady: the proffered testimony need only tend substantively to negate guilt.

  • And third, in the event the government refuses to grant immunity, it cannot be allowed to then introduce prior statements to impeach the witness if it is only to impeach the witness invoking his privilege against self incrimination. Such a scenario will result in a “distortion of the fact-finding process,” which is what Carter was designed to prevent. If such a situation is to occur, the argument to the trial court should be that the government must either 1) grant the witness immunity or 2) not present the jury with the prior statements for the purpose to impeach the witness who has invoked the privilege. BM

Monday, July 25, 2016

I'm Sure the Jury Didn't Hear That!

Christopher T. Holmes v. United States (decided July 21, 2016)

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by Judge King; Judge McLeese dissenting in part. Peters H. Meyers for Mr. Holmes.  Trial Judge: Rhonda Reid Winston.

Facts: After David Tucker accused his friend, Mr. Holmes, of being up to no good and looking for someone to rob, the two men got into a heated verbal altercation. The altercation, which began in a barber shop, got physical and spilled out into the street, where, eventually, Mr. Holmes shot and killed Mr. Tucker. The incident occurred during the day, and was witnessed by two men, Akeem Young and Carlton Clemons, who identified Mr. Holmes as the shooter.

At trial, Nicholas Proctor was permitted to testify that he had been the victim of a robbery and that prior to the shooting he had told Mr. Tucker that Mr. Holmes might have been the perpetrator. Additionally, both Mr. Young and Mr. Clemons were permitted to explain their reluctance to testify and additions to their accounts with statements that they were scared of being involved in a homicide case. Finally, during the trial, a potential defense witness, who was never called, started “screaming” right outside the courtroom, “There are people in this room. My life is in danger.” The trial court denied the defense’s request for a mistrial as a result of this outburst, after finding that it was not clear if the jury had heard the outburst or realized it was connected to the trial. Further, the court gave the jury no curative instruction related to the outburst.

Issue 1: Did the trial court abuse its discretion in admitting Mr. Proctor’s testimony about a prior robbery as more probative than prejudicial?

Holding: No. The evidence was admitted to explain Mr. Tucker’s argument with Mr. Holmes (accusing his friend of looking to rob someone), see Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc), and not to show criminal propensity. Moreover, the trial court instructed that the evidence be carefully limited to no more than that Mr. Proctor had made an accusation to Mr. Tucker, excluding any testimony about the robbery or what led Mr. Proctor to believe Mr. Holmes was responsible. Under these circumstances, the testimony was not more prejudicial than probative.

Issue 2: Did the trial court abuse its discretion in admitting Mr. Young and Mr. Clemons fear testimony as more prejudicial than probative?

Holding: No. The DCCA finds that Clemons’s testimony was properly admitted because he testified very generically about being scared of testifying in a homicide case. Such “generic” testimony did not reasonably give rise to a concern that Clemons was specifically scarred of Mr. Holmes. Young’s testimony was a closer call for the DCCA because his testimony included fear based on his claim to have been twice told by Mr. Holmes himself not to testify. Ultimately, the DCCA relies on Young’s testimony on cross examination that he did not perceive his two encounters with Mr. Holmes as “threats” to find that Young’s fear testimony would not unfairly lead the jury to believe Mr. Holmes had engaged in witness intimidation.

Issue 3: Did the trial court abuse its discretion in denying Mr. Holmes’s motion for a mistrial, or for failing to conduct further inquiry into whether or not the jury might have been influenced by the outburst outside the courtroom?

Holding: No. Although both the majority and the dissent agree that where the jury’s impartiality has been “plausibly called into question, it is the responsibility of the trial judge to hold a hearing to determine whether the allegation of bias had merit,” Tann v. United States, 127 A.3d 400, 470 (D.C. 2015), and that the government has the burden “to demonstrate that the [jury’s] contact with extraneous information was harmless or non-prejudicial,” id., the majority concludes that the trial court’s colloquy with counsel was sufficient for the court to determine that no further questioning of the jury or instruction was required, and to deny the request for a mistrial. The majority relies on the fact that the trial court found that it was not clear that members of the jury had heard the outburst, or that they would have any reason to connect the outburst with the trial proceedings.

Dissent: Judge McLeese parts ways with the majority as to Issue 3. He would find that the trial court abused its discretion for failing to make any inquiry of the members of the jury as to whether and to what extent any of them might have been influenced by the outburst. Judge McLeese would hold that such an inquiry was required before the court could properly decide what, if any, corrective action was required. This dissent is important because it carefully applies the ruling of Tann, and can therefore be used as a template in future arguments about this heavily fact specific question.  CP