Friday, March 17, 2017

The DCCA’s Latest Conspiracy Theory: Liability Imposed Based on Unsolicited, Unheeded Advice about How to Commit the Crime

In re T.M. (decided March 16, 2017)

Players: Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Chief Judge Washington.  Partial dissent by Judge Beckwith.  PDS for T.M.  Trial Judge: Florence Pan.

Facts: T.M. was charged and tried on a 22-count indictment in relation to the August 2013 shooting of seventeen-year-old J.W.  The evidence showed that T.M. and a group of more than ten approached J.W. and four others, who were smoking marijuana in an alley behind a high school after a football game.  Three from J.W.’s group identified T.M. as a fellow student who had been in a physical altercation with J.W. the year before.  When J.W.’s group started walking out of the alley toward a nearby Safeway, T.M.’s group followed.  One person from J.W.’s group testified that T.M. was pointing a gun in their direction but slightly downward, toward the ground.  This witness and one other testified that they heard an unidentified male state, “don’t do it in the light” or “if you’re going to shoot it, get out of the light.”  As J.W.’s group crossed an intersection, they heard a single gunshot and saw J.W. fall.  A bullet penetrated both of her legs.  An ambulance transported J.W. to a hospital where she was treated for a broken right leg.  Following a bench trial, the trial court adjudicated T.M. delinquent for several offenses, including carrying a pistol in violation of now-repealed D.C. Code § 22-4504(a) (2013) and conspiracy to commit murder or assault with a dangerous weapon.

Issue 1: Did the evidence presented prove beyond a reasonable doubt that T.M. conspired to commit murder or assault with a dangerous weapon?

Holding 1: Yes.  The evidence showed that T.M. arrived in an alley with a large group, waited for J.W. and her friends, and promptly followed them.  The evidence also showed that T.M. was openly carrying a weapon when she was seen among the group of teenagers and at least one – the unidentified male – followed and advised her on how to carry out the shooting.  His statement (“don't do it in the light”) could reasonably indicate that he had knowledge of T.M.’s “plan to shoot” and intended to help T.M. avoid detection.

Judge Beckwith writes in dissent that, contrary to the trial court’s reasoning, it is impossible to conclude beyond reasonable doubt, based on the fact that an unidentified male told T.M. to not “do it in the light,” that T.M. engaged in “some prior discussion” during which they formed an agreement to commit the shooting.  “The evidence established at most that another person who was expecting T.M. to shoot a gun gave her advice about how to avoid detection.”

Issue 2: Did the trial court plainly err in adjudicating T.M. delinquent for carrying a pistol under D.C. Code § 22-4504(a), given that statute’s purported facial unconstitutionality under District of Columbia v. Heller, 554 U.S. 570 (2008)?

Holding 2: No.  As of the appeal in this matter, this Court had not interpreted Heller to extend Second Amendment protection to carrying a pistol outside the home or place of business.  While Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014) did interpret Heller that way, that decision is at best persuasive and its weight has been significantly undermined by the subsequent en banc reversal of Peruta v. County of San Diego, on which it chiefly relied.  742 F.3d 1144 (9th Cir. 2014), rev'd en banc, 824 F.3d 919 (9th Cir. 2016).  Unlike the statute at issue in Conley v. United States, 79 A.3d 270 (D.C. 2013), former § 22-4504(a) does not offend any basic principle of due process or comparably well-settled Second Amendment principle.

Read full opinion here.

Thursday, March 16, 2017

That Seems Like a Strange Way to Commit a Robbery…

Gray v. United States (decided March 16, 2017)

The Players: Associate Judges Beckwith and McLeese, and Senior Judge Farrell.  Opinion by J. Beckwith, concurrence by J. Farrell, and dissent by J. McLeese. Sydney J. Hoffmann for Mr. Gray. Trial Judge: William M. Jackson.

Facts: Security-camera footage showed a man, identified by the complaining witnesses as Mr. Gray, enter a convenience store one evening and “engage in a series of bizarre acts.”

According to the footage and witness testimony, he approached two women and their children (two of whom were in strollers), first reaching into one of the strollers, and then gesturing towards the group, holding his hands in front of his body while forming a diamond shape with his thumbs and forefingers.  He next touched the two women and one of the children on the forehead with his palm. Then, he reached into the second stroller, pulled a bottle out of the mouth of the baby in the stroller, and told the mother not to give the baby the bottle because the baby would die.

After this strange sequence of events, he then picked up a wallet the one of the mothers had left on it. He then sat down, rummaged through the wallet and removed $7. He tossed the wallet back on the counter, stood up, and walked out of the store. As he left, he pointed to the owner, and said something like “you’re going to die.”

Mr. Gray was convicted at trial of one count of robbery, one count of threats to do bodily harm, and three counts of simple assault. The defense’s request that the jury be instructed on the lesser-included offense of second-degree theft was denied.

Issue 1: Did the trial court err in not giving an instruction on the lesser included offense of second-degree theft because the evidence would have supported a finding by the jury that the assaults and taking of the complainant’s money were distinct from one another.

Answer: Yes. On the “unusual facts of this case,” the DCCA held that the evidence supported a rational conclusion that Mr. Gray neither assaulted the complainants with the intent of effectuating a subsequent taking, nor consciously exploited the fear created by the assaults when taking the money.

The DCCA found that based on the evidence presented—particularly the camera footage—the jury could rationally have concluded that “the assaults and the theft were not connected but rather resulted from a series of separate, erratic impulses.”  In other words, Mr. Gray’s behavior was so strange that the jury could well have believed that the theft of the $7 dollars was spontaneous and unconnected to this touching the complainants with the palm of his hand.

Note: The majority opinion draws two important legal conclusions about the robbery statute in the course of its analysis on this point. First, while case law makes clear a defendant can commit a robbery when she takes advantage of the fear created by assaultive acts that were committed with no robbery in mind, the defendant must purposefully take advantage of that fear, not simply coincidentally benefit from it.  The second is that simply taking something from a victim’s “immediate actual possession” (as opposed to the victim’s person) does not constitute robbery because “such a principle would completely nullify the ‘by force or violence’ element of robbery.”

Judge Farrell’s concurrence also stresses the unique facts of this case, and the unlikelihood that a similar scenario would present itself.

Issue 2: Was the failure to give the lesser-included offense harmless?

Answer: No. The error was not harmless for two reasons. First, the instruction would have lent credence to the defense’s claim in closing that the assaults were not intended to effectuate a robbery. Second, by giving the jury a middle ground between robbery and acquittal, the instruction would have prevented the jury from making the decision to convict simply because it was all or nothing—either convict for robbery or allow obviously illegal behavior to go unpunished.

Other Issues: Mr. Gray also challenged the sufficiency of the evidence on the robbery charge, as well as the voluntariness of his waiver of his Fifth Amendment privilege not to testify. The DCCA denied both challenges.  CP

Thursday, March 9, 2017

Court Allows Detailed Evidence of Numerous Uncharged Incidents of Sexual Abuse to Provide Context for a Single, Charged Incident

Menendez v. United States (decided March 2, 2017)

Players: Associate Judges Glickman and Thompson, Senior Judge Reid. Opinion by Judge Reid. PDS for appellant. Trial Judge: Russell Canaan. Motions Judge: Robert Morin.

Facts: The government charged appellant with one count of first-degree child sexual abuse with aggravating circumstances. To prove this charge—unsupported by any physical evidence—the government was permitted to introduce a mountain of evidence of uncharged conduct that occurred in Maryland.

The complainant was appellant’s nephew who at the time of the alleged incidents was between the ages of nine and ten. The complainant testified to a single incident when appellant drove him to the optical office in D.C. where he worked in order to make eyeglasses for one of his sons. While there, the complainant claimed appellant took him to a small room, had him remove his pants, and anally raped him. Complainant testified that he did not tell anyone at first because “he was scared [and] confused” and “didn’t know what to do.” Eventually, he did tell his mother but she did not believe him. It was not until later when appellant put the complainant, his mother, and his aunt out of his house that the complainant again told his mother and later spoke with police. There was no other evidence of an incident occurring in D.C.

The government was allowed to introduce evidence of numerous other incidents of uncharged conduct that all occurred in Maryland. This evidence included testimony from the complainant that 1) appellant began performing sexual acts on him when they lived at his home in Maryland, in the bedroom, bathroom, backyard, and kitchen; 2) that appellant pulled complainant’s pants down one time when they were in the living room and complainant then felt appellant’s “private part enter into ‘his butt.’”; 3) appellant showed complainant pornographic movies while he touched himself and told complainant to do the same, followed by appellant anally penetrating complainant; 4) appellant forced complainant to perform oral sex on him on two occasions, and then anally penetrated him after one of the occurrences; and, 5) appellant forced complainant to “block the door” while he touched himself. After many of these incidents, according to the complainant, appellant would ask if he liked it and instruct him not to tell anyone. Additionally, complainant testified that one time he was at a friend’s house when appellant called him and told him to “put Vaseline on his private part, and ‘put it in [his friend’s] butt.” Lastly, two poems the complainant wrote that never mentioned complainant specifically were permitted to be introduced at trial. The poems were titled “I Hurt,” and “Life Has No Meaning.”

The government relied on additional witnesses. An aunt testified that one night, when she entered the room where complainant was sleeping, she “kind of felt something” when she tried to place complainant’s sleeping brother on the mattress. She then heard someone she believed to be appellant say, “oops” and “just put [the brother] down.” She did not expect appellant to be there, and he then got up and went to the backyard.  Also, the government played a videotape of complainant being interviewed by Child Protective Services about his allegations against appellant, and a nurse at the Sexual Assault Center at Prince George’s County Hospital testified to complainant being “very withdrawn” and that he said appellant “put his private part in his butt.”

The government also introduced evidence seized from appellant’s home, including “electronic devices, pornographic flyers, a pillow, a mattress cover” and “a black rubber ring used by a male in the performance of sexual acts,” which was similar to an object complainant said appellant used with him.

Issue:  Did the trial court err by permitting the “prosecution [to] present[] far more evidence of the Maryland abuse than was necessary to provide a context to explain [complainant’s] behavior during and after the [District of Columbia] assault?”

Holding: Not on this record. In Koonce v. United States, 993 A.2d 544 (D.C. 2010), the Court set out factors to admit evidence under the “narrow sexual abuse exception to the admission of propensity evidence.” There, the Court stated, “prior abuse evidence may be admitted under this narrow exception if (1) the sexual abuse involves a defendant and the same victim; (2) the relationship between the alleged abuser and the victim constitutes or approximates a close familiar connection; (3) the pattern of sexual abuse started when the victim was very young and occurred at reasonably short and regular intervals without meaningful interruption; and (4) the evidence is pivotal to the prosecution’s case because proof of context is required.” Id. at 556. The Court upheld the ruling below that all of the Koonce factors in the instant case were met.

The Court concluded the first factor was obviously met and that the second was met because appellant and complainant were described as being “really close,” complainant treated appellant “as his dad,” and complainant, his mom, and appellant occupied the same home in a family setting.  The third factor was satisfied by evidence of continuous abuse without a “multi-year gap between [appellant’s] acts of sexual abuse in Maryland, and his act of sexual abuse in the District of Columbia,” and that the abuse occurred over a “discrete period of time” between “early January 2009 and mid-May 2009[.]”

As to the fourth factor—the requirement for the evidence to be “pivotal” to providing “context”—the Court relied heavily on its determination that the trial court “carefully scrutinized the parties’ pleadings and arguments, and the [pertinent] proffer[s].” The Court agreed with the government’s position that “the evidence of [appellant’s] uncharged prior Maryland acts of sexual abuse against [complainant] was essential because it served as context for the charged act of sexual abuse in the District of Columbia, to explain [complainant’s] apparent lack of reaction or expressed concern, complaint or report of the abuse.” “On this record, where the trial court scrutinized and limited the evidence of the Maryland uncharged acts of sexual abuse and properly instructed the jury in response to its question about the limited purpose for which the Maryland evidence was introduced, we cannot say that the trial court erred or abused its discretion in ruling that the government’s proffer and proof satisfied the fourth Koonce factor.”

As to the prejudicial impact, appellant argued that even if the Koonce factors were met and some of the evidence admissible, there simply was no need to turn a trial about a single incident in D.C. into a lengthy trial that focused the overwhelming majority of the time on highly prejudicial testimony about the uncharged misconduct. The Court, however, concluded that the uncharged misconduct “no doubt . . . had probative value,” and that because the trial court “spent substantial time” on the issue with its “expertise in evidentiary matters,” “we cannot say that the trial court abused its discretion[.]”

Of Note:

  • The Court declined to consider appellant’s Brady claim that the government failed to disclosed favorable evidence regarding its witness's bias because that claim was presented for the first time on appeal and the Court deemed the record insufficient for appellate review. The Court said it would decline to hear the issue until a §23-110 motion was filed in Superior Court. 
  • The Court emphasized several times that the Koonce test represents a “narrow exception” to the rule against propensity evidence, applicable only when all four Koonce factors are met and when the prior abuse has been established by “clear and convincing” evidence.
  • The Court reiterated Koonce’s finding that in order to satisfy the four “pivotal context”  prong for admissibility, the uncharged evidence must do more than provide a “starting point” for the charged conduct.  BM

Monday, March 6, 2017

Don’t Leave Your DNA on a Gun: Constructive Possession of Firearms and Other Issues

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

The Players: Associate Judges Blackburne-Rigsby, Thompson, and McLeese. Opinion by Associate Judge Thompson. Cecily E. Baskir for Mr. Dorsey. Trial Judge: Anita Josey-Herring.

Facts: As officers, wearing their “POLICE” vests, approached an apartment building to execute a search warrant, they observed Dorsey and two women standing on the balcony. Dorsey “reacted” by entering the apartment. Officers ultimately entered the apartment by using a battering ram after knocking on the door and announcing their presence. Once inside, an officer saw Dorsey exiting the kitchen, the same room where a gun was recovered in a cabinet. The government swabbed the gun for DNA, which yielded a partial DNA profile from a single male contributor. Each of the 8 alleles detected was consistent with Dorsey’s DNA profile. Dorsey was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1: Did the government present sufficient evidence that Dorsey constructively possessed the gun and ammunition?

Holding 1: Yes. First, although there was no evidence that Dorsey lived in the apartment, he was present when the police entered and was the only person seen exiting and in close proximity to the kitchen where the gun was found. Second, Dorsey immediately left the balcony as police approached. Third, the kitchen had “only one way in and one way out,” so that Dorsey did not enter the kitchen just to get to another area of the apartment. Lastly and “[m]ost important[ly],” the partial DNA profile recovered from the gun matched with Dorsey’s DNA profile. This evidence was sufficient to establish Dorsey’s knowledge of the gun’s location and his ability and intent to exercise dominion and control of the gun.

Background 2: On the morning before jury selection, the prosecutor handed defense counsel a handwritten note reading, “Officer Campanale Wesby v. DC – Case No. 12-7127, Sept. 2, 2014.” The Wesby case related to a federal D.C. Circuit decision affirming a federal D.C. District Court summary judgment ruling and subsequent jury verdict in a §1983/false arrest case where Officer Campanale was found liable for unlawfully arresting twenty-one individuals for unlawful entry. After reading the opinion, defense counsel moved to dismiss the case due to the government’s late disclosure of the Wesby case.

The following day, defense counsel moved for a continuance in order to investigate the facts of the Wesby case. The trial court denied the motion, citing an existing ability to cross-examine the officer, including on corruption bias grounds, without needing additional investigation, and a perceived “delay tactic” by Dorsey, who had previously fired two other lawyers.

The government did not call Officer Campanalle until five days after the original disclosure. While the officer acknowledged that he arrested individuals involved in the Wesby case, he denied that he was found liable or that he “lost on appeal.” The parties eventually agreed upon the trial court taking judicial notice of the Officer Campanalle’s unlawful arrests.

Issue 2: Did the trial court’s refusal to grant a continuance violate Dorsey’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), when on the day before jury selection began, the government dropped a “cryptic” disclosure—the name and number of a case involving one of the testifying police officers—that revealed the unlawful arrests of twenty-one individuals for unlawful entry?
Holding 2: The Court did not find a Brady violation or that Dorsey was precluded from effectively using the disclosures in preparation of his defense. In support of its holding, the Court noted (1) Dorsey’s willingness to go forward with trial after having fully reviewed the Wesby opinion, (2) the five days between the disclosure and the officer’s testimony, and (3) defense counsel’s ability to impeach the officer during the trial. Interestingly, the Court also took into account defense counsel’s post-trial failure to “contact[] the attorneys in Wesby to learn of any additional impeaching material” and the failure to present other new information about the Wesby matter that would have “made a difference to the outcome of [Dorsey’s] case.”

Background 3: After the government closed its case, defense counsel notified the trial court that Dorsey needed to secure his own defense DNA expert to testify about “the preservation and collection” of DNA and not to “actual tests.” This came on the heels of an officer’s testimony that he placed the gun on the kitchen counter before putting it into an evidence bag. Since the government’s DNA expert had already testified, Dorsey would need to procure his own expert to “clear up some DNA matters.”

The trial court admonished defense counsel for not providing Rule 16 expert notice, but nonetheless, said that she would sign a voucher if Dorsey could not afford the expert. Calling the expert, however, would be conditioned on Dorsey’s ability to have the expert prepared to testify by the following morning. The next day, defense counsel told the trial court that the expert was unavailable for the day and could only testify the following day. The trial court denied the request to delay the trial.

Issue 3: Did the trial court abuse its discretion by denying Dorsey a mid-trial continuance to secure the presence of a defense DNA expert to rebut the government’s DNA evidence?

Holding 3: No. The trial court made sure that the reason for not having previously secured the expert was not financial; the court was legitimately concerned about defense “delay tactics”; the defense had no other witnesses and would have wasted an entire day; the government would have had to consult with its own expert again; and, defense counsel did not give the trial court a reason that Dorsey would be prejudiced. Assuming arguendo that the trial court erred, the error was harmless.

Background 4: The trial court gave Dorsey a three-year mandatory minimum sentence for being convicted of unlawful possession of a firearm after a prior conviction for a crime of violence. Dorsey argued that the trial court’s determination that his 1999 Maryland conviction for first-degree assault was a “crime of violence” was a matter for the jury. Alternatively, Dorsey argued that the trial court committed plain error by concluding that a Maryland first-degree assault was equivalent to a D.C. aggravated assault conviction to qualify for the three-year sentence.

Issue 4: Did the trial court commit constitutional error in not submitting Dorsey’s prior Maryland conviction to the jury to determine whether he was subject to the three-year mandatory minimum, and if no constitutional violation occurred, did the trial court commit plain error by determining that the Maryland first-degree assault was the equivalent of the D.C. aggravated assault?

Holding 4: No and no. The Court found that under Apprendi v. United States, 530 U.S. 466 (2000), the fact of a prior conviction does not need to be submitted to the jury to be proved beyond a reasonable doubt. In this case, because the increase in Dorsey’s penalty resulted from a “legal analysis concluding that the elements of a prior predicate crime match[ed] those of the type of offense that the penalty statute establishe[d] as the trigger for the enhanced penalty, the court’s determination [was] not the type of factual finding” that would have necessitated submission to the jury. The Court determined that “as a matter of law,” the elements of first-degree assault in Maryland are subsumed within the scope of serious bodily injury in D.C.’s aggravated assault.  JW

Tuesday, February 28, 2017

Fourth Amendment Seizure Where Police Blocked a Narrow Path and Ran a Warrant Check While Asking Accusatory Questions

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

Players: Associate Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Glickman. Dissent by Judge Fisher. Joseph A. Mokodean for Mr. Jones. Trial judge: Harold L. Cushenberry, Jr.

Facts: Jones was walking alone in a narrow alley around 6:00 p.m. when two armed, uniformed officers in a marked patrol car drove up the alley. One officer testified that he saw Jones “fiddling with a Newport cigarette box,” which Jones lowered to his side when he saw the police car. The officers drove up alongside Jones, and one officer got out of the car, blocking Jones’s way. The officer questioned Jones in a “cordial” tone for one to two minutes, and relayed the information to his partner so that his partner could run a warrant check. Before the warrant check was complete, the officer asked to see the cigarette box. Jones handed it over and the officer found crack cocaine inside.

Issue: Had Jones been seized for Fourth Amendment purposes when police asked for the cigarette box, such that the cocaine should have been suppressed?

Holding: Yes. A reasonable person would not have felt free to leave where armed officers subjected him to accusatory questioning while he was alone in a secluded area, the questioning officer physically blocked his path, and police ran a warrant check, which was still going on when they asked for the cigarette box.

Of Note:
  • The majority called this a “close legal question” and emphasized that the blockage of Jones’s path and the warrant check “materially increased [the] coerciveness” of the encounter.
  • Even though Jones “failed to cite” the fact of the ongoing warrant check in his appellate brief, the majority concluded that he had not abandoned reliance on this factor because his trial counsel had relied on it at the suppression hearing and the trial judge explicitly considered it in ruling, and because his appellate counsel submitted a 28(k) letter before oral argument citing a case analyzing the significance of a warrant check in the Fourth Amendment context.
  • In dissent, Judge Fisher stated that he would have treated as forfeited the argument relating to the impact of the warrant check. He also distinguished the two cases the majority relied on pertaining to the significance of the warrant check.  MW

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

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

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

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

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

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

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

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

Read full opinion here

Monday, February 6, 2017

But I Heard it from That Guy! Random Information Passed from One Cop to Another Without Explanation Does not Justify a Terry Stop

Jenkins v. United States (decided February 2, 2017)

Players: Associate Judges Glickman and Blackburne-Rigsby, and Senior Judge Pryor. Opinion by Judge Pryor. PDS for Mr. Jenkins.  Trial Judge: Neal E. Kravitz

Summary: After a man attempted to rob him inside his apartment building between 3:00 and 4:00 pm, the complainant described the assailant to officers from the Metropolitan Police Department (MPD) as 21 to 22 years old, 5’8” to 5’9”, with a dark brown complexion, average build, dreads, a ski mask and dark clothing.

Special Police Officers (SPOs) in the apartment complex where the incident occurred reviewed security camera footage, which apparently did not capture the robbery. Nonetheless, when SPO Walker arrived for his midnight shift, another SPO, who had supposedly looked at the camera footage, told him they were looking for a “black male, with a black ski mask, blue jeans, black jacket, and a bicycle.” Based on this description, SPO Walker stopped Mr. Jenkins (who was on a bicycle) outside of the apartment complex sometime near 1:00 am. He was frisked and weapons and ammunition were found. Mr. Jenkins did not have dreads and was light-skinned.

Issue 1: Did the vague description given by one SPO to another, in the absence of any record evidence about what was on the video, provide reasonable articulable suspicion to justify the stop?

Holding 1: No. The government presented neither the security camera footage, nor the officer who viewed the footage at the suppression hearing. Thus, the government failed to meet its burden to demonstrate that the information relied on by SPO Walker was itself based on reasonable articulable suspicion (and indeed, on this record, that was highly questionable).

Issue 2: Did either the description given by the complaining witness to MPD, or the description given by the non-testifying SPO to SPO Walker, justify the stop?

Holding 2: No. Both descriptions would apply to too many people, and, particularly when combined with the passage of almost ten hours, could not support a reasonable articulable suspicion of Mr. Jenkins. CP