Monday, September 19, 2016

Trial Judge Can Reconsider a Ruling Allowing Defendant To Withdraw a Guilty Plea

Michael T. Marshall v. United States (decided August 25, 2016)

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Judge Nebeker.  PDS for Mr. Marshall.  Trial Judge:  Rhonda Reid Winston.

Facts:  Before sentencing, Mr. Marshall moved to withdraw his guilty plea to second-degree murder on the ground that he was actually innocent.  Over the government's objection, the trial judge granted the motion to withdraw.  The government moved to reconsider that ruling, proffering that it had discovered recordings of jailhouse calls, made before the motion to withdraw, in which Mr. Marshall purportedly discussed the death of a principal witness against him.  After conducting an evidentiary hearing, the trial judge reconsidered her ruling and reinstated Mr. Marshall's guilty plea.

Issue:  Does the trial judge have the authority to reconsider an order granting a withdrawal of a guilty plea and reinstating the guilty plea?

Holding:  Yes.  Adopting the reasoning in United States v. Jerry, 487 F2d. 600 (3d Cir. 1973), the DCCA held that a trial judge has the inherent power to reconsider its interlocutory rulings while it exercises plenary jurisdiction over a case.  The DCCA also held that it "was consonant with justice" to reconsider its ruling in this case, given the trial judge's failure to fully analyze the relevant factors prior to her initial ruling, as well as the jailhouse calls, which called into question the defendant's motive for seeking to withdraw his plea.  DG

Read full opinion here.

Rabbi Sets Up Hidden Camera in Ritualistic Bath and Receives Consecutive Sentences for 52 Counts of Voyeurism.

Bernard Freundel v. United States (decided September 15, 2016).

Players: Judges Glickman, Blackburne-Rigsby, and McLeese. Opinion by Judge McLeese. Jeffrey Harris for Mr. Freundel. Trial Judge: Geoffrey Alprin

Facts: Rabbi Freundel placed a clock radio with a hidden video recorder in a mikvah—“a ritual bath primarily used by Orthodox Jewish women for spiritual purification.” Between 2009 and 2014, Mr. Freundel surreptitiously recorded over 100 women in some state of undress. As a result, he pled guilty to 52 counts of voyeurism, in violation of D.C. Code § 23-3531 (b)-(c)—a misdemeanor punishable by up to 1 year in prison, with each count premised on his recording of a different woman. At sentencing, Judge Alprin sentenced Mr. Freundel to consecutive sentences of 45 days’ incarceration for each count—totaling close to 6 ½ years in prison.

Issue: Did the court’s imposition of consecutive sentences violate the Double Jeopardy Clause?

Holding: No. The Court of Appeals noted that as a general matter, “the Double Jeopardy Clause does not prohibit separate and cumulative punishment for criminal acts perpetrated against different victims,” and that in analogous circumstances, it has approved of “separate punishment where a single act affected multiple victims.” “Moreover, if the legislature so intends, multiple punishments for violating a single criminal statute may be imposed based on a single act.”

Here, the Court found that separate punishment for each victim was permitted because the goal of the voyeurism statute was to “protect the privacy of individual victims.” The Court reasoned that if it held otherwise, “once a defendant unlawfully recorded one victim, all future voyeuristic recording . . . would not be separately punishable.” As such, “there would be no incentive for the defendant not to do it again (and again and again),” which does not “comport with reason and with sound public policy” and was “surely not a result which the legislature intended.”

Of Note: Mr. Freundel made a number of arguments that the Court walked through and rejected. One of the more interesting arguments was that “the title of the omnibus act establishing the voyeurism statute, which describes the statute as making it unlawful to record ‘individuals (plural),’” suggested that “the legislature intended to punish the conduct of recording rather than to separately protect the privacy of each individual recorded.” The Court refused to subscribe to this argument, reminding that the “Supreme Court has stated that the title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself,” and here, the plain text of the statute uses “the singular rather than the plural.” DH

Monday, September 12, 2016

Trial court’s incorrect statements to a defendant about timing of his parole eligibility entitled him to at least an evidentiary hearing on his §23-110 motion.

Jayvon R. White v. United States (decided September 1, 2016).
Players: Associate Judges Thompson and Beckwith, Senior Judge Reid. Opinion by Senior Judge Reid. Matthew Dowd for Mr. White. Judge on 23-110 motion: Jennifer M. Anderson

Facts: The following is what the Court of Appeals characterized as the “rather unique and exceptional” circumstances of this case. Back on September 4, 2001, before Judge Retchin, Mr. White pled guilty to second-degree murder while armed and possession of a firearm during a crime of violence. At the time, Judge Retchin told Mr. White that (a) the penalty for second-degree murder was “20 years to life with a mandatory sentence of at least five to fifteen years,” (b) the mandatory sentence for PFCV was five to fifteen years; and (c) she could sentence him to consecutive sentences “meaning that [she] could sentence [him] to as much as 25 years to life.” She also told him that “the mandatory part of the sentence is exempted from parole, meaning that [Mr. White] would be required to serve a minimum of five years,” and that if the court made the sentences consecutive, “it would be a minimum of 10 years before [he] could even [be] eligible for parole.” Mr. White said he understood.

On December 7, 2001, with new counsel, Mr. White filed a motion to withdraw his guilty plea. On February 8, 2002, the court held a hearing and Mr. White testified  that his belief was that if he was found guilty of first-degree murder his sentence would be life without parole but that if he accepted the plea agreement “he would see the parole board after five years” and “probably do about fifteen years.” On February 13, 2002, the court denied the motion, and on June 28, 2002, Judge Retchin sentenced Mr. White to 20 years to life on the second-degree murder offense and five to 15 years on the PFCV offense, and made the sentences consecutive. Judge Retchin indicated that he was to be committed to prison for “25 years” and that a “mandatory minimum term of 10 years applies.” On March 12, 2004, Judge Retchin amended the commitment order by “deleting ’25 years’ but leaving ‘mandatory minimum term of 10 years applies.’” Mr. White filed an appeal, which the Court of Appeals denied on December 30, 2004. See White v. United States, 863 A.2d 839 (D.C. 2004). 

On June 1, 2009, Mr. White sent a letter to Judge Retchin seeking assistance with his parole eligibility, and the judge’s administrative assistant responded that the “[c]ourt does not intercede in parole determinations.” On September 13, 2010, Mr. White filed a pro se motion “seeking clarification of exactly when he is eligible for parole consideration.” He attached one document that indicated his initial parole hearing would be April 1, 2013, and another document that indicated it would be March 8, 2025 but also that his “[n]ext parole hearing date” would be “’06-00-2010.’” He also included a letter he received from the Bureau of Prisons that indicated his “parole hearing should not have been June, 2010, but 6-9 months prior to your parole eligibility which is March 8, 2025. The ten-year DC Mandatory Minimum Term, is the least amount the Judge could sentence you to and would come [in]to play if you[] earned Educational Good Time, which you cannot. Your minimum term is 25 years and therefore [you are] eligible for parole March 2025.” On September 20, 2010, Judge Retchin denied the motion and stated the Parole Commission has the responsibility to determine when he would be released on parole and that “the mandatory minimum sentence does not equate to a parole eligibility date.”

On June 5, 2012, Mr. White filed a pro se motion to vacate, set aside, or correct sentence and judgment because 1) he had pled guilty under the impression he would be eligible for parole in ten years when in actuality it would be 25 years; 2) the court gave him “erroneous advi[c]e” when Judge Retchin told him “[I]f I make [the] sentence consecutive, it would be a minimum of 10 years before you’re even eligible for parole; and 3) the government has “denied [him] the fruits of his plea deal” since he has been incarcerated for more than ten years. Over a year later, on October 9, 2013, Judge Anderson denied the motion without a hearing, finding that Mr. White’s claims were procedurally barred for not having been raised during the pendency of his direct appeal, and, even if not barred, he would not be entitled to relief. Judge Anderson declined to conduct an evidentiary hearing because 1) Judge Retchin had denied the same claim in his initial motion to withdraw his guilty plea, which was affirmed on appeal; 2) the claim about Judge Retchin misinforming him about his parole eligibility was “palpably incredible based on the existing record;” and 3) he had no basis to object to his plea agreement since there was “no misinformation.”

Issue 1:  Are Mr. White’s claims procedurally barred because he should have raised during his direct appeal the issue that he did not realize it would be 25 years before he was even eligible for parole?

Holding: No. “Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.” Relief under §23-110 is only appropriate for “serious defects” that were either not correctible on direct appeal or were prevented by exceptional circumstances from being raised on direct appeal. As noted above, however, the Court deemed this a case of “exceptional” circumstances.

While a defendant need not be informed of parole eligibility before entering a guilty plea, a trial court’s “misinformation” about eligibility may be deemed so prejudicial as to require “a new opportunity for the defendant to decide whether or not to enter a guilty plea.” The Court then concluded that Judge Retchin “may have made misleading and confusing or ambiguous statements regarding the timing of Mr. White’s parole eligibility” and that “from around 2006 to the time [he noted this appeal,] [he] sought clarification from the trial court and the Bureau of Prisons about the date of his parole eligibility.” The Court noted that on September 4, 2001, Judge Retchin told Mr. White that it would be ten years before he was eligible for parole if the sentences were consecutive; on June 28, 2002, she told him that a “mandatory minimum term of 10 years applies;” and that on March 12, 2004, she amended the commitment order by deleting “25 years” but leaving “mandatory minimum term of 10 years applies.” And in September 20, 2010, in response to his requests for clarification, Judge Retchin told him it was up to the Parole Commission to determine when he would be released but that the “mandatory minimum sentence does not equate to a parole eligibility date.” 

The Court thus concluded that “individuals who possessed education beyond Mr. White’s GED level might well be misled into believing that they would be eligible for a parole hearing in 2010, or they may have become quite confused about the reason for the different and even conflicting parole eligibility dates stated by the court and the Bureau of Prisons. In short, we are unable to conclude that the claims Mr. White made in his 2012 §23-110 motion were ‘available’ to him before our resolution [of his direct appeal]. Rather, we hold that because Mr. White did not know and should not have known (during the pendency of his direct appeal) of the claims presented on appeal, he need not demonstrate cause and prejudice[,] and as a result his claims are not procedurally barred.

Issue 2: Did the trial court abuse its discretion by denying Mr. White’s June 5, 2012 23-110 motion without a hearing?

Holding: Yes. The Court began with a reminder that “there is a strong presumption in favor of a hearing,” and that while whether to have a hearing is within the trial court’s discretion, “the extent of that discretion is quite narrow.” Also, where the issue to be decided turns on “witness credibility,” the issue often “may be resolved only by recourse to a full evidentiary hearing.” In this case, because Judge Anderson was not the trial judge for the original plea proceedings and had no first-hand knowledge, “the lack of a hearing becomes especially significant.” The Court stated that while Judge Retchin had denied his initial claim to withdraw his guilty plea, that decision was due to Mr. White’s argument he received misleading advice from his trial counsel. On the other hand, his claim now included new arguments about the impact of information he received from both Judge Retchin and the Bureau of Prison. Thus, the Court ruled Mr. White at least deserved a full hearing. 

Of Note:

  • While trial courts do not have to explain parole eligibility to a defendant entering a guilty plea, when a court does it is important to make sure the court has it correct and your client is not under a false impression of either when he will be eligible for parole or when the first parole hearing will take place. BM

Wednesday, September 7, 2016

Data from ankle monitor and treatment for a concussion were sufficient to establish robbery and assault with significant bodily injury.

Stephon Brown v. United States (decided September 1, 2016).

Players: Associate Judges Thompson and Beckwith, Senior Judge King. Opinion by Thompson. Sicilia Englert for Mr. Brown.  Trial judge: Todd E. Edelman

Facts: On December 15, 2014, while he was attempting to make a food delivery for a restaurant, two men attacked Gregory Dowell by repeatedly punching and kicking him in the head and body. They then took his phone, wallet, and vest, and one man rode away on Mr. Dowell’s bicycle. After Mr. Dowell reported the incident, police ran a check to determine if anyone’s GPS monitoring device was in the area at the time of the incident. Through that check, police learned that Stephon Brown had been in the area. Police then went to his house, where they located Mr. Dowell’s bicycle. 

Due to the attack, Mr. Dowell experienced headaches but declined to go to the hospital despite being urged to go by both the paramedics who responded to the scene and a friend, who was a nurse. Mr. Dowell did not want to go because he did not have insurance. But five days later, when he was still experiencing pain, he went and was diagnosed with a concussion and underwent a CAT scan. 

The jury convicted Mr. Brown of robbery and assault with significant bodily injury. 

Issue 1:  Was the evidence sufficient to establish Mr. Brown committed the robbery?

Holding: Yes. Mr. Brown admitted there was evidence to place him in the area of the robbery close to the time it occurred and he admitted that the stolen bicycle was found at his house only a few hours after the robbery, but claimed he found an abandoned bike and rode it home. The court ruled there was sufficient evidence to connect him to the robbery. Mr. Dowell testified that two men walked past him around 8:50 pm on North Capitol Street, SE, between T Street and Seaton Place. The two men then returned, attacked him, and fled north on North Capitol before making a right turn. 

Mr. Brown’s main contention was that the GPS data was inconsistent with the complainant’s testimony. The court disagreed. One, the complainant testified he did not see anyone else in the area at the time. Two, though the tracking data showed that he moved farther south down North Capitol than the complainant had said, “the [complainant’s] testimony did not eliminate the possibility that the attackers did precisely that while [the complainant] was distracted” trying to make the food delivery. And three, testimony established that the GPS monitoring data generally are accurate within a fifty-foot radius of each point plotted on a map, allowing the jury to conclude that Mr. Brown was even closer to the location of the assault than the plotted points indicated. Those facts, plus the bike being found at his house shortly after the robbery, established sufficient evidence to support the jury’s verdict for robbery. 

Issue 2: Was the evidence sufficient to establish that Dowell suffered significant bodily injury?

Holding: Yes. To prove significant bodily injury there must be an injury “that requires hospitalization or immediate medical attention.” The complainant sustained “a lot of rapid blows” to the head, and suffered a laceration on his forehead and ears, and multiple bright red areas on his scalp, neck, and ears. He testified that afterwards, he felt “loopy” and “dazed,” that his head hurt, and that the pain lasted for several days. He finally went to the hospital after several days, even though he did not have insurance, because a friend offered to pay for his medical expenses. At the hospital, he described his pain as “unacceptable” and a “constant headache.” He was diagnosed with a concussion. The treating doctor testified that it is “important for people with concussions to seek medical treatment” and that doctors “want anyone who has a head injury to come in and be evaluated[.]” Also, the doctor testified she ordered a CAT scan, which is the typical test for anyone complaining of a head injury. The doctor admitted, however, that some people who do not follow the recommended course of treatment for a concussion “may do okay on their own.”

Referring to this case as “perhaps a closer one than we have seen in some previous cases,” the Court nonetheless concluded the evidence was sufficient to establish significant bodily injury. The Court cited the number of blows to the head, the amount of pain in the moment, the amount of lingering pain, and the recommendations that Mr. Dowell seek medical treatment immediately. Further, when he did go to the hospital, he did not receive a “mere diagnosis,” but underwent treatment, including a CAT scan and was prescribed limitations on his activities to avoid worsening his symptoms. Lastly, the Court noted that the doctor testifying someone might have “do[ne] okay” on his own” does not undermine the seriousness of the injury when it is one that otherwise would typically require “immediate medical attention” by a professional with “true medical expertise.” BM

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