Thursday, April 17, 2014

Court holds that a non-threatening request for a friend to stay silent (“keep the code”) amounts to obstruction of justice.



Brown & Shepherd v. United States, Nos. 11-CF-1503 and 11-CF-1507 (decided April 17, 2014)

The Players: Judges Fisher, Blackburne-Rigsby, and Belson.  Opinion by Judge Fisher.  Debra Soltis for Darius Brown.  Richard Stolker for Jamal Shepherd. Trial Judge: Ronna Beck.

The Facts:  Mr. Brown and Mr. Shepherd were convicted of several offenses arising from a shooting and later cover-up.  During an argument between the appellants and their friend Mr. Brooks, on one side, and Mr. Washington, on the other, Shepherd suddenly grabbed a gun that Brooks had been carrying and shot Mr. Washington.  Police arrested Brooks, who informed police that he and Brown had witnessed the shooting; although Brooks initially denied knowing the shooter’s name, he later implicated Shepherd.  Brown told police, and later the grand jury, that he did not know the shooter’s name and had met the shooter on just two earlier occasions.  But Brown later stated, during a recorded phone call, that he “lied to the police officers” and was “guilty” of obstruction of justice.  He also spoke with Shepherd on the phone approximately 1500 times during the 15 months following the incident.  During these conversations, Brown and Shepherd expressed anger that Mr. Brooks had “told the truth” to police and agreed that they needed to “get at [Mr. Brooks].”  On appeal, Brown and Shepherd challenged primarily the sufficiency of the evidence as to certain counts.

Issue 1:  Was there sufficient evidence to support Mr. Brown’s convictions for perjury, obstruction of justice, and conspiracy to obstruct justice?

Holding:  Yes.  Given that Brown and Shepherd spoke with each other about 1500 times over the course of 15 months after the incident, and Mr. Brown admitted in recorded phone calls that he had lied to police, the jury could reasonably infer that he had lied — with the intent to derail the investigation — when he told police and the grand jury that he did not know Mr. Shepherd’s name.  And because the contents of their phone calls “attest to an understanding between [them] that they needed to do something to stop Brooks’s continued cooperation with authorities,” the jury could reasonably find that they conspired to obstruct justice.

Issue 2:  Was there sufficient evidence to support Mr. Shepherd’s convictions for obstruction of justice and carrying a pistol without a license?

Holding:  Yes.  As to obstruction of justice, Shepherd told Brooks in a recorded phone call to “keep the code,” which Brooks understood as a reference to a code against snitching.  That statement amounted to obstruction of justice under the part of the statute that prohibits actions that impede an official proceeding “[c]orruptly, or by threats of force.”  D.C. Code § 22-722(a)(6).  The Court concluded that both of these prongs were satisfied: Shepherd’s reference to the code against snitching implied a “threat[] of force,” and even if it did not, the statement was made “corruptly” inasmuch as it was “motivated by an improper purpose” to obtain Brooks’s silence.  As to carrying a pistol without a license, Shepherd’s momentary possession of the gun — when he grabbed it from Mr. Brooks and shot Mr. Washington — was sufficient for conviction even though he did not carry the gun either before or after the shooting.  JM.






Monday, April 7, 2014

Prosecutors should not make improper comments about a limited- or no-English defendant's exercise of his rights to a qualified interpreter.

Melvin Andrade v. United States, No. 12-CF-265 (decided April 3, 2014)

Players:  Judges Blackburne-Rigsby, Thompson and Reid.  Opinion by Judge Reid.  Craig N. Moore for appellant.  Trial judge: Michael Ryan.

Facts:  Melvin Andrade was tried on assault and weapons charges for stabbing a man.  Mr. Andrade, who emigrated from El Salvador at fifteen and spoke some English, was appointed an interpreter to help him understand the trial proceedings. He testified that he stabbed the complainant in self-defense.  On cross-examination, Mr. Andrade stated that he was confused and having trouble understanding or making himself understood by the prosecutor as she pressed him about his version of events.  The prosecutor responded, “You were there, if you need a different interpreter . . . you tell me because [you are] not going to hide behind translation.”  She also inquired about whether Mr. Andrade discussed the content of his testimony with defense counsel prior to trial.  In closing, the prosecutor insinuated that Mr. Andrade had feigned confusion, arguing that his claim not to have discussed his testimony with counsel prior to trial was “not believable” and that he “trie[d] to hide behind the interpretation,” even though her “questions were very simple,” “Spanish is not a very complicated language,” and “these are certified [c]ourt [r]eporters [sic].” 

Issue: Did the trial court’s failure to take corrective action in response to the prosecutor’s comments violate Mr. Andrade’s rights to an interpreter and to a fair trial?

Holding:  Not in this case.  “[T]he prosecutor arguably transcended the bounds of permissible comment” by using her questions and remarks about Mr. Andrade’s discussions with defense counsel and his hiding behind interpretation in order to express her opinion about his veracity.  Her remarks about the complexity of the Spanish language and the interpreters’ qualifications were also “disrespectful” and “insensitive,” if not improper, particularly after all present had recognized problems with the quality of interpretation at an earlier stage of trial.  Op. at 13-15.  Nevertheless, these errors did not meet the “stringent plain error standard” that applies when there has been no objection to improper prosecutorial comments.  Op. at 12, 16 (citation omitted).  The prosecutor’s questions about Mr. Andrade’s conversations with defense counsel, to which counsel did object, likewise did not meet the “substantial prejudice” standard for preserved prosecutorial improprieties.  This prejudice analysis turned in significant part on the Court’s opinion that the trial judge had taken adequate steps to ensure “that in her zeal to obtain a conviction, the prosecutor did not unduly infringe” on Mr. Andrade’s right to use an interpreter by:  barring an interpreter who had trouble early in trial, allowing for the correction of possibly mistranslated testimony, sustaining an objection to a question that directly accused Mr. Andrade of lying, and admonishing the prosecutor not to engage in narrative while cross-examining Mr. Andrade.  Op. at 15-16.

Of Note:  The Court pointed out that both “‘non-English [and] limited-English speaking’” defendants are entitled by statute to a “‘qualified interpreter,’” Op. at 9 (quoting D.C. Code §§ 2-1902(a) (2012 Repl.), 2-1901(2)), and that a lack of effective interpretation may “substantially undermine” the defense and pose “a serious possibility of grave injustice,” id. (citation omitted).  It also noted that prosecutors may not express personal opinions on witness credibility, argue negative inferences from a defendant’s decision to consult with counsel, or make comments directed at jurors’ emotions or assumed prejudices.  Op. at 11-12.  Defense counsel should object, citing these principles, when a prosecutor makes disparaging comments about a defendant’s need for, or use of, an interpreter.

Read the full opinion here.

Monday, March 24, 2014

There’s more than one reason to run from the police.


Vernon Headspeth v. United States, No. 11-CF-1669 (decided March 13, 2014)

Players:  Judges Blackburne-Rigsby, Thompson, and Ruiz.  Opinion by Judge Thompson.  PDS for appellant.  Trial Judge:  William M. Jackson.

Facts:  Brandon Jennings was shot on December 2, 2010.  He survived the shooting, and testified that Mr. Headspeth, his frequent marijuana dealer, had shot him during the course of an unsuccessful robbery attempt.  After Mr. Jennings identified Mr. Headspeth shortly after the shooting, the police obtained an arrest warrant.  On December 17, 2010, Officer Matthew King saw Mr. Headspeth, whom he knew, outside a building.  Officer King, who verified that the arrest warrant was outstanding, followed Mr. Headspeth inside the building and started to detain him.  Mr. Headspeth pulled away and tried to run out the door.  Officer King grabbed Mr. Headspeth’s jacket, and Mr. Headspeth “kind of roll[ed] out of his jacket,” causing both men to fall.  Mr. Headspeth was then arrested.

The government requested a jury instruction regarding an arrestee’s flight, i.e., that the jury may infer from Mr. Headspeth’s flight that he was conscious of his guilt of the charged offenses.  Defense counsel opposed the instruction on a number of grounds, including that there were facts not before the jury showing that Mr. Headspeth and Officer King had a history.  Specifically, Officer King had arrested Mr. Headspeth in 2009 or 2010 for threatening him and Mr. Headspeth had been acquitted of that charge, and Officer King had arrested Mr. Headspeth a second time for violating a court order.  The trial court gave the requested flight instruction, reasoning that it was “not really a very powerful instruction” and it was “reasonably balanced.”

Issue:  Did the trial court err in giving a flight instruction where the jury was unaware of evidence that tended to show that the defendant may have attempted to flee for reasons other than his consciousness of guilt of the charged offenses? 

Holding:  The trial court abused its discretion in giving the flight instruction.  It is not necessarily error to give the flight instruction just because the defendant’s conduct might be explained by reasons other than consciousness of guilt because the flight instruction tells jurors that flight may be motivated by a variety of factors that are consistent with innocence.  But in this case, the jury was unaware of evidence regarding the history between Officer King and Mr. Headspeth.  The jury would therefore have no reason to consider whether that history, rather than consciousness of guilt, explained Mr. Headspeth’s attempted flight.  A trial court may not give a flight instruction when evidence not before the jury suggests a reason for the flight other than consciousness of guilt of the crimes charged and “there is no reason to think that the jury would envision that other reason.”  The erroneous flight instruction was not harmless because the government’s two eyewitnesses had credibility problems, the government’s motive theory was weak, and there was no physical evidence linking Mr. Headspeth to the shooting.

Of note:  Though the holding is somewhat narrow, the opinion hints at a broader hostility toward instructions that tell the jury what inferences they may infer from particular types of evidence. The court cautioned that the flight instruction should be given “sparingly” and warned that the jury will give great weight to the trial judge’s instructions about permissible inferences.   In addition to the flight instruction, the category of “permissible inference” instructions includes the standard jury instructions regarding change of appearance, suppression or fabrication of evidence, the failure to cooperate during an identification procedure, and possession of recently stolen property.  These instructions are anachronistic (dating back to a time when juries were not trusted to sort through evidence on their own and judges were permitted to comment on the evidence) and a growing number of jurisdictions have gotten rid of them.  It may be worth arguing this when objecting to these instructions in order to preserve the issue for appeal.  DG.

Saturday, March 15, 2014

Is the emergency ongoing? Two judges say "yes" and one says "no," where the police interrupt a domestic dispute, separate the parties, and ask the complainant "what happened?"


Gary Frye v. United States, No. 12-CM-1438 (decided March 13, 2014)

The Players: Judges Thompson, Easterly, and Farrell.  Opinion by Judge Farrell.  Dissent by  Judge Easterly.  Andrew Murnane for Appellant. Trial Judge: Judge Nash.

The Facts:  Responding to a 911 call, police arrived at a home on Texas Ave., S.E. to find Jewel Parker and Gary Frye arguing at the top of a stair case.   Officers immediately separated the two and placed them in different bedrooms.  When police asked Parker “what [had] happened,” she stated that the two were arguing over Frye’s use of PCP, that she locked herself in a room where she “felt safe,” and that Frye then kicked the door in, grabbed her, shoved her into the floor, and tried to choke her. According to the police, Parker was extremely upset during the interview, was “shaking . . . and . . . crying,” and seemed to need medical attention.

Frye was tried in a bench trial before the Honorable Stuart Nash. Parker did not testify at trial.  Over defense objection, the government introduced the statement Parker made to the police.  At the close of trial, Judge Nash found Frye guilty of simple assault.

Issue: Did the admission of Parker’s statement violate Frye’s Sixth Amendment right to confrontation?

Holding: No. 

The Court held that Parker’s statements were nontestimonial because they were made to help the police meet an “on-going emergency” and not with the primary purpose of producing evidence to be used against Frye at trial.  The Court noted that when officers arrived on the scene, they did not know what happened, saw two individuals fighting, and faced a “fluid and somewhat confused” situation about which they knew almost nothing.  When the officers asked Parker “what happened,” they were concerned with securing the “volatile” situation, not with obtaining evidence.  And when Parker answered them, she was “appeal[ing] for safety,” not trying to “establish facts for an eventual prosecution.”

The Court acknowledged that police had separated Parker and Frye when they questioned her,  a fact significant to the Supreme Court in Hammon v. Indiana.  See Davis v. Washington, 547 U.S. 813 (2006).  But unlike in Hammon, where the police encountered no apparent emergency when they arrived on the scene and where the declarant told police that everything was fine, police discovered Parker and Frye arguing.  Parker remained upset during the interview and was visibly shaking and crying.  This made it highly unlikely that she was trying to give a statement for use in a criminal prosecution.  Further, the Court did not believe that the emergency was over.    Officers still needed to discern whether the children in the house were at risk or in need of social services, and whether Parker needed medical attention. 

Ms. Parker’s “excited” demeanor also supported the Court’s conclusion that the statement was nontestimonial.  Parker’s “acute emotional distress, which made her answers undisputed ‘excited utterances,’ . . . implied that her attention was focused more on ‘ending a threatening situation’ than on ‘proving past events.’”

The Dissent: The dissent criticized the majority’s conclusion that there was an “on-going emergency.”  Parker and Frye were in separate rooms when police questioned her.  The “on-going emergency” exception therefore did not apply.   The dissent also did not believe that the record supported the majority’s conclusion that Parker was “plead[ing] for safety for herself and her children” when she spoke to the police.  “[N]othing in the record indicates that when she spoke to the police she wanted to do anything other than report criminal activity.”  The dissent accused the majority of engaging in impermissible speculation. 

Of Note:  Counsel should argue that even after Frye, the “on-going emergency” exception is a narrow one.  Frye involved a unique group of facts: when police arrived on the scene, they did not know what had happened, and they immediately observed an ongoing argument.  Even when they separated Frye from Parker, the emergency was not obviously over.  Parker had injuries that could require medical attention, and Parker’s children were still running throughout the house.  The situation had not been defused.  Counsel should try to distinguish Frye on this basis.  Further, the police in Frye asked only one question.  Additional police questioning could undermine the inference that they are merely responding to an ongoing emergency.

Read the full opinion here.


Wednesday, March 12, 2014

D.C. Court of Appeals: Don't try to pick up women if you know or should know they will turn you down. Also, the DCCA creates a new standard for attempt.

Grady Hailstock v. United States, No. 12-CM-1741 (decided March 6, 2014)

The Players: Judges Fisher, Thompson, and Schwelb.  Opinion by Judge Thompson.  Concurrence (dubitante) by  Judge Schwelb.  PDS for appellant. Trial Judge: Ronna Beck.

The Facts:  Mr. Hailstock was charged with one count of attempted misdemeanor sexual abuse and one count of assault. He was tried in a bench trial before the Honorable Ronna Beck. The complainant, C.W., testified that Hailstock, who was a family friend, came into her room while she was sick in bed, shut and locked the door, and climbed into bed with her.  He told C.W. that he was going to “get down.”  C.W. pushed him away and said “no,” at which point Hailstock grabbed her robe and touched her breast.  When C.W. moved away, Hailstock stopped, got out of bed, and left the room.  When questioned by the police later, he stated that his intent was to have sex with C.W., but only “if she consented.”

The trial court’s ruling: Judge Beck convicted Hailstock on both counts.  She found that Hailstock intended to have penis-to-vagina contact with C.W., and that when Hailstock got into C.W.’s bed and touched her, he knew or should have known that C.W. would not want to engage in a sexual act with him.  She also found that Hailstock came “dangerously close to committing the alleged misdemeanor sexual abuse.” 

Critically, Judge Beck noted that she could not find beyond a reasonable doubt that Hailstock intended to have sex with C.W. without her consent or that “it was his intention from the beginning to engage in sex that was non-consen[s]ual,” i.e., “where there was affirmative rejection of the interest in sex.”  Nonetheless, she convicted Hailstock of attempted misdemeanor sexual abuse.

Issue 1:  Was there sufficient evidence that Hailstock intended to commit the planned sexual contact with an actual understanding that he lacked permission or with an objectively unreasonable disregard as to the circumstances showing a lack of permission?

Holding: Yes.  

The Court first concluded that Judge Beck’s findings were limited to whether Hailstock intended to have sexual intercourse without C.W.’s consent.  According to the Court, Judge Beck never opined on whether Hailstock intended to have sexual contact – which only requires penis-to-vagina contact – without her consent.  The Court acknowledged that she used these two phrases interchangeably throughout her ruling, but nevertheless concluded that she was only referring to Hailstock’s intent to have intercourse.  Her findings, therefore, did “not preclude a holding that [Hailstock] lacked the requisite mental state.”

Next, the Court concluded that even if Judge Beck found that Hailstock never intend to have sexual contact without C.W.’s consent, he was still guilty of attempted MSA.  So long as he intended to have sexual contact with C.W. and formed that intent at a time when he should have known she would not consent, he was guilty of attempt MSA.  The Court rejected defense counsel’s argument that the government had to establish that Hailstock would have recklessly proceeded without regard to C.W.’s consent. 

Issue 2:  Did Hailstock come “dangerously close” to committing the sexual act or contact?

Holding: Yes.  The Court held that to commit an attempted crime, the government must prove that “except for some interference,” a defendant’s overt acts “would have resulted in commission of the completed crime,” or that the defendant has taken a “substantial step toward commission of the crime.”  The Court stated that Hailstock took substantial steps.  He went into her bedroom, got into bed with her, and tried to touch her even after she said no.  The court also stated that C.W.’s resistance is what stopped Hailstock from pursuing the sexual contact, not Hailstock’s own intent. 

Judge Schwelb’s Concurrence (dubitante):  Judge Schwelb stated that he was “barely” prepared to join his colleagues, but he found that Hailstock’s earlier actions – locking the door and assaulting C.W. on the bed – were “arguably sufficient under the statute.”

Of Note:

The Court altered the requirements to prove attempt.  Under this Court’s previous cases, the government must show that the defendant came “dangerously close” to completing the offense to prove attempt.  In other words, the government must show that but for some external interference, he would have committed the crime. Under the Hailstock Court’s analysis, the government must show only that the defendant has taken “substantial steps” toward committing the crime.  The Court cites no criminal opinions from the DCCA standing for this novel proposition.  Rather, it cites disbarment cases that cite to federal law.  

Counsel should argue that this Court’s earlier opinions control under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).  Under those cases, a defendant is not guilty of attempt unless the government proves that the defendant came “dangerously close” to committing the crime.  Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).  JB.



Monday, February 24, 2014

Beware "civility" instructions that encourage deadlocked juries to reach a verdict.

Charles A. Grant v. United StatesNo. 11-CM-1134 (decided February 20, 2014).


Players:  Judges Blackburne-Rigsby, Easterly and King.  Opinion by Judge King.  Anna Scanlon for appellant.  Trial Judge:  Herbert B. Dixon.

Facts:   Mr. Grant was charged with one count of bias-related threats, bias-related assault, and two counts of possession of a prohibited weapon (bottle and knife), for allegedly threatening the complainant during a verbal altercation on a sidewalk, calling him a homophobic slur, throwing a bottle at him, and running towards him with a knife in hand.  Mr. Grant was ultimately acquitted of all counts except the bias-related threats count.  During deliberations, the jury sent three notes.  The first, close to four hours into deliberations, read, “We, the jury, can’t come to agreement of the identity of the assailant beyond a reasonable doubt.  We need further instructions.”  The trial court responded by instructing the jury, inter alia, that they should deliberate further and “keep an open mind about the case.”  The next day of deliberations, the jury sent a note saying, “We as a jury are hung.”  Both parties requested a Winters instruction, and the court gave an anti-deadlock instruction similar to that used in Williams v. United States, 52 A.2d 25, 45 (D.C. 2012). 

The third note was signed by a juror other than the foreman and read:  “The environment in our jury room has become very difficult.  Our ability to incorporate your most recent directions into our deliberations has become almost impossible.  Please advise us of our options.”  The note also contained a comment in a different handwriting:  “Jury members have been personally ‘targeted’ by juror members as doing ‘a piss poor job.’”  Because the trial judge was dealing with another jury at the time the note came in, he proposed that he and counsel go to the jury room and that he read them the note to the jury and tell them he would “look into” it and talk to them about it the next day.  Defense counsel objected to reading the note to the jury, but did not object to the procedure occurring in the jury room.  The next day, when the parties reconvened, defense counsel moved for a mistrial saying further deliberations would be inappropriate at this point.  The mistrial motion was denied.  The trial judge then read the jury what the Court of Appeals labeled a “civility” instruction, although the instruction included abundant language urging the jury to continue deliberations with an eye towards achieving a verdict.  After the trial court read the instruction defense counsel lodged some objections to its language and moved again for a mistrial.  The motion was again denied.  The jury returned a verdict soon after. 

Issues:  (1) Whether the court violated Super. Ct. Crim. R. 36-I by conversing with the jurors off the record in the jury room and whether that violation warrants reversal, and (2) whether the final instruction given by the trial judge was impermissibly coercive, warranting reversal. 

Holding:  On the Rule 36-I issue, the Court of Appeals held that the rule was violated but reversal was not warranted because Mr. Grant was not prejudiced.  On the coercion issue, the Court of Appeals dismissed the claim that a mistrial should have been granted with virtually no analysis, stating merely that trial courts have discretion to determine how to instruct jurors who are having trouble deliberating.  The Court focused the bulk of its attention on the so-called “civility instruction,” which it ultimately concluded was erroneous for at least two reasons:  (1) the trial court erred in telling the jury that its “purpose” was to reach a verdict, and (2) the trial court erred by omitting language to remind jurors that they should not surrender their honest convictions to secure agreement, because trial courts must “temper” any message that agreement is desirable with such language.  The Court of Appeals did not reverse, however, because it applied a plain error standard of review.  Although trial counsel had moved for a mistrial, counsel had not lodged objections to the instruction that paralleled the arguments raised (by new counsel) on appeal.  For this reason, the Court of Appeals held that plain error review applied.  And while the Court found there was error (and declined to decide whether the error was plain), it ultimately affirmed because it found that the appellant failed to demonstrate prejudice. 

Of note:  Trial counsel should make sure that they continue to be vigilant in articulating their objections when their initial requests are denied.  If a trial judge is going to give an instruction in lieu of a mistrial, as happened here, counsel must scrutinize the instruction for impropriety and request appropriate modifications.  In the jury coercion context, instructions must be balanced and cannot tell the jury that its purpose is to reach a verdict.  JF.

Read the full opinion here. 

Monday, February 3, 2014

Judicial No-No: Defendants are entitled to be resentenced by a different judge where trial judge warned them that “there will be jail time” if they rejected the government’s plea offer and went to trial.



Lindsay & Davis v. United States, Nos. 12-CM-1211 and 12-CM-1336
(decided Jan. 30, 2014)

Players: Fisher, Blackburne-Rigsby, King.  Opinion by Judge Fisher.  Joel R. Davidson for Ms. Lindsay.  David Carey Woll for Mr. Davis.  Trial judge: Brian Holeman.

FactsMs. Lindsay, Mr. Davis, and a third (ultimately acquitted) co-defendant were charged with simple assault.  At a status hearing, the co-defendant announced that she was rejecting the government’s plea offer of a deferred sentencing agreement.  The trial judge then warned all three defendants that, if they were to reject the plea offer, go to trial, and be convicted of simple assault, “there really isn’t a question of whether there will be jail time because there will be” and that the only question will be “how much,” so they would be taking a “risk” in rejecting the plea offer (slip op. 3).  Despite this admonition, all three defendants rejected the government’s plea offers and went to trial.  After finding Ms. Lindsay and Mr. Davis guilty, the judge sentenced them both to a period of incarceration.  On appeal, the appellants requested resentencing by a different judge.

Held:  The trial judge’s statements “raise at least three fundamental concerns” (slip op. 5).  First, “they could be perceived as judicial participation in plea negotiations” in violation of Criminal Rule 11 (slip op. 5).  Second, they created an “unacceptable risk” that appellants were punished for exercising their Sixth Amendment right to go to trial (slip op. 6).  And third, it appeared that the trial judge “automatically incarcerated appellants according to a uniform policy,” which is an abuse of discretion under Houston v. United States, 592 A.2d 1066, 1068 (D.C. 1991), and other cases (slip op. 7).  In light of these issues, appellants were entitled to resentencing by a different judge. 

Of note:   

  • This is one of several recent cases in which the DCCA has found that a trial judge abused his or her discretion by appearing to employ a “uniform policy” rather than exercising individualized judgment about a discretionary decision.  See Leander v. United States, 65 A.3d 672, 676-77 (D.C. 2013); Barbett v. United States, 54 A.3d 1241, 1246 (D.C. 2012).
  • It is also the second case in recent years in which the DCCA has ordered resentencing by a different judge where it appeared that the original sentencing judge gave the defendant a harsher sentence as punishment for exercising a constitutional right.  See Thorne v. United States, 46 A.3d 1085 (D.C. 2012).  CM.
Read full opinion here