Creative, DC-specific legal challenges founder on the shoals of plain error review.

(except, of course, in DC, where everything is more complicated)

Melvin Barnes v. United States, No. 13-CT-103 (decided via unpublished opinion on October 8, 2014; published on November 20, 2014)

Players: Associate Judges Glickman & Easterly, Senior Judge Pryor. Opinion by Judge Glickman. Jeffrey L. Light for Mr. Barnes. Trial Judge: Marisa J. Demeo.

Facts: Mr. Barnes was arrested for DUI on November 7, 2012. The DUI statute in effect at the time was the second emergency act relating to DUI passed by the DC Council while a permanent act, covering the same subject matter, went through the later stages of the statutory approval process prescribed by the Home rule Act. The Council passed the first emergency act on July 10, 2012, and the second on October 2. The second act went into effect on October 26, but was not published in the DC Register until November 9 — two days after Mr. Barnes’s arrest. Meanwhile, the Council approved the permanent act on its first reading on July 10, and again approved it on the second reading on September 19. The permanent act was signed by the Mayor and transmitted to Congress on January 10, 2013, and went into effect in April.

Issue 1: Applying plain-error review, did the D.C. Council run afoul of the Home Rule Act by enacting a second emergency act rather than “proceed[ing] with appropriate dispatch [so that] the Permanent Act could have been approved and taken effect before the First Emergency Act expired?

Holding: No. Although the Council may not use emergency legislation to “circumvent congressional review,” the record does not suggest that this is what happened here. The permanent act was approved on its second reading — paving the way for the Mayor’s signature and Congressional review — before passage of the second emergency act. And the somewhat-delayed second reading of the permanent act made sense given that the Council went on summer recess shortly after the first reading.

Issue 2: Applying plain-error review, did Mr. Barnes receive inadequate notice of the statute for which he was arrested, in violation of the Ex Post Facto and Due Process Clauses?

Holding: No. First, although the second emergency act was not published in the DC Register until two days after Mr. Barnes’s arrest, the act had gone into effect prior to his arrest. Second, a resolution announcing the Council’s passage of the emergency act had been published about two weeks before his arrest, arguably providing the requisite notice.  JM.

Read full opinion here. 

When is mouthing off to police an APO?

Edwin Cheek v. United States, No. 12-CM-1213 (decided November 20, 2014)

Players: Associate Judges Thompson & Easterly, Senior Judge Nebeker. Opinion by Judge Nebeker. James E. Drew for Mr. Cheek. Trial Judge: Yvonne Williams.

Facts: Two police officers observed two girls fighting in the street near a “disorderly crowd” of 20-30 people who were watching the fight. When the officers approached, one of the girls tried to run, but Officer Blier handcuffed and began to question her. As he did so, another female moved in his direction and began yelling. Officer Blier told her to get off the street, and she complied. Mr. Cheek then came “within ten feet” of Officer Blier, staggering as though “extremely intoxicated,” yelled at him about how he’d treated the woman, and ignored his order to back up. Another citizen led Mr. Cheek away from the scene, but he returned several minutes later, at which point he continued screaming at Officer Blier about why he’d slammed the girl to the ground, and again disobeyed the officer’s commands to back up.

Issues:

·         Was the evidence sufficient to convict Mr. Cheek of assault on a police officer (“APO”) for “interfering” with Officer Blier’s investigation under D.C. Code § 22-405(b)?

·         Did the trial court plainly err under the First Amendment by convicting Mr. Cheek of APO based on mere speech?

Holding: Mr. Cheek was properly convicted of APO. The sufficiency and First Amendment analyses in this context turn on substantially the same question: whether Mr. Cheek’s conduct went “beyond speech and mere passive resistance” and “cross[ed] the line into active confrontation” that impeded Officer Blier’s investigation. Op. at 4, 7. The Court concluded that the totality of the circumstances as described above satisfied this test, without placing special emphasis on any particular subset of facts.

Practice notes:

·         This case should be fairly easy to distinguish, given that the Court’s legal analysis substantially repeats the facts without making clear which ones matter most. JM.

Read full opinion here.

Assaulting a police officer during an illegal stop lets the government use the evidence it finds

Thurman N. Wilson v. United States, No. 13-CM-564 (decided November 6, 2014). 

Players:  Associate Judges Fisher & Beckwith, Senior Judge Nebeker.  Opinion by Judge Fisher.  Bryan P. MacAvoy for Mr. Wilson.  Trial Judge:  Harold L. Cushenberry, Jr.

Facts:   Officers observed Mr. Wilson engage in what they believed was a hand-to-hand drug transaction.  As officers approached to stop him, Mr. Wilson ran away but was eventually caught.  While Mr. Wilson was detained, he pulled out of the officers’ grasp, refused to stand up, and flailed and kicked.  The officers arrested him for assault on a police officer (APO).  At the station, a search incident to arrest revealed cocaine and $140 cash.  He was convicted of both APO and possession of cocaine.

Issue:  Assuming the police lacked probable cause to believe the defendant had committed a drug offense when they initially detained him, did the defendant’s assaultive conduct during the detention purge the taint of the Fourth Amendment violation and allow the government to use subsequently discovered evidence of the drug offense?

Held:  Yes.  Absent unforeseen exceptional circumstances, where Mr. Wilson commits a separate and distinct crime while unlawfully in police custody, evidence uncovered by a search incident to the later, lawful arrest is not suppressible as the fruit of the poisonous tree.  It does not matter that the evidence related to the crime for which the defendant was initially stopped, rather than the separate and distinct crime he committed after.  Because the APO statute criminalizes resistance even to unlawful police conduct, the defendant’s conduct constituted APO and the police therefore had probable cause to arrest him for that offense and conduct a search incident to arrest.  DG.

Read full opinion here.

A genuine but unreasonable belief that property is abandoned is a defense to theft

Cerron H. Hawkins v. United States, No. 13-CM-476 (decided November 13, 2014).

Players:  Chief Judge Washington, Associate Judge Fisher, Senior Judge Farrell.  Per curiam opinion.  Sean J. Farrelly for Mr. Hawkins.  Trial Judge: Yvonne Williams. 

Facts:   Mr. Hawkins took a “bait-bike” that police officers had left outside a Metro station and was charged with second-degree theft of a bicycle.  The defense was that he believed the bicycle was abandoned.  In a bench trial, the judge credited his belief that the bicycle was abandoned but held this belief was unreasonable under the circumstances and thus found Mr. Hawkins guilty.

Issue:  Is a genuine but unreasonable belief that property is abandoned a defense to theft?

Held:  Yes.  Because theft is a specific intent crime, a defendant need not show his belief that the property was abandoned was reasonable (as the government conceded on appeal).  DG

Read full opinion here.

Abuse of Discretion To Exclude Defense Expert from the Courtroom During Cross-Examination of Government Expert

Cynthia Sanchez v. District of Columbia, No. 13-CT-128 (decided November 6, 2014)

Players:  Beckwith, McLeese, Newman.  Opinion by Senior Judge Newman.  Grey Gardner for Ms. Sanchez.  Trial judge:  Heidi M. Pasichow.

Facts:  In a DUI bench trial, the government’s principal fact and expert witness was the U.S. Capitol Police officer who stopped Ms. Sanchez’s car, administered sobriety tests, and arrested her.  During the defense’s cross-examination of the officer, the trial judge summoned the parties to the bench and sua sponte invoked the rule on witnesses to exclude the defense’s expert witness from the courtroom, stating that it was not “appropriate” for him to hear the cross-examination of the officer.  Defense counsel argued that his expert needed to be present during cross-examination to see the officer demonstrate the sobriety tests he conducted and opine as to whether he administered the tests correctly, as well as to help defense counsel formulate questions for cross-examination.  The trial judge refused to reconsider her ruling.

           

Issue:  Was it reversible error to exclude a defense expert witness from the courtroom during the cross-examination of the government’s principal fact and expert witness in a DUI bench trial?

Holding:  Yes.  Under the Federal Rules of Evidence and this Court’s prior cases, including Johnson v. District of Columbia, 655 A.2d 316 (D.C. 1995) (per curiam), and Garmon v. United States, 684 A.2d 327 (D.C. 1996), “the presence in the courtroom of expert witnesses is the norm, subject to exceptions,” and in this case there was “no valid basis” for the expert’s exclusion.

Of Note:

• The defendant’s right to present expert witnesses “includes the need to afford the expert appropriate means of gathering the ‘facts and data’ upon which to base an opinion,” as well as “a right to have his attorney consult with the expert during cross-examination of the government’s expert so as to enable defense counsel to conduct meaningful cross-examination.”  Slip op. at 9.
• The erroneous exclusion of the defense expert was prejudicial even though the expert was able to rely on the officer’s direct examination and defense counsel’s retelling of the “facts” elicited from the officer on cross-examination to opine that the officer had not administered some of the sobriety tests correctly, because “the defendant was deprived of further opportunity to evaluate [the officer’s] methodology directly and to point out any additional flaws as [the defense expert] testified,” and also “deprived of the use of her expert to meaningfully assist counsel in the conduct of the cross-examination of [the officer].”  Slip op. at 11.  MW.

Read full opinion here.

Pre-Arrest Search of Driver After a Traffic Stop Valid as a Search Incident to Arrest Where Police Smell “Fresh” Marijuana in the Car and the Driver Is the Sole Occupant

Thomas Butler v. United States, No. 11-CM-985 (decided November 6, 2014)

Players:  Blackburne-Rigsby, Beckwith, Belson.  Opinion by Judge Blackburne-Rigsby.  Dissent by Judge Beckwith.  Thomas T. Heslep for Mr. Butler.  Trial judge:  Herbert B. Dixon.

Facts:  Police stopped Thomas Butler’s car because it had broken brake lights, and when Butler lowered his window to speak with the officer, the officer smelled “the strong odor of ‘fresh’ marijuana coming from inside the vehicle.”  The officer asked Thomas to get out of the car and then searched him.  During the search, the officer pulled up Thomas’s pant leg and found a bag of pills and a bag of marijuana “wedged between the sock and shoe.”  The officer then arrested Thomas and searched the vehicle for more drugs, but found nothing.    

           

Issue:  Was the pre-arrest search of a driver following a traffic stop a lawful search incident to arrest where police smelled the odor of “fresh” marijuana emanating from the vehicle in which the driver was the sole occupant?                                      

Holding:  Yes.  Police had probable cause to arrest Mr. Butler because he was the sole occupant of the vehicle and because the odor was of “fresh” marijuana, and under Millet v. United States, 977 A.2d 932, 935 (D.C. 2009), “[a] search incident to arrest may precede the actual arrest if probable cause exists, independent of the search, to justify the arrest, and if the arrest follows ‘quickly on the heels’ of the search.”

Of Note:

• The court rejected the government’s argument that the odor of marijuana was itself sufficient to provide probable cause to arrest and search.       
• “[T]he calculus of probable cause in future cases such as this may change” as a result of the Marijuana Possession Decriminalization Amendment Act of 2014.  Slip op. at 2.
• The majority maintains that “our case law does not approve—and indeed actively guards against—‘fishing expeditions’ for contraband.”  Id. at 7 n.6. 
• But it also asserts that its opinion “is in accord with” the “holding and reasoning” of United States v. Nash, --- A.3d ---, Nos. 13-CO-1299  & 13-C)-1456 (Sept. 25, 2014), which held “that a search incident to arrest is lawful even if, at the time of the search, the police had not yet arrested the suspect and did not subjectively intend to do so.”  Slip op. at 7 n.6. 

 The Dissent:

• In dissent, Judge Beckwith states that she “would reverse Mr. Butler’s convictions on the ground that the search of his person was not incident to any arrest.  That is, the record is devoid of signs that the officer was arresting Mr. Butler for possession of marijuana when he conducted the search and instead indicates that he was conducting an investigative search not incident to any arrest.”  Slip op. at 15 (Beckwith, J., dissenting).
• The dissent sharply disagrees with both Nash and the majority’s acceptance of it on the ground that it “flatly defies the U.S. Supreme Court’s Fourth Amendment jurisprudence, including precedent, such as Knowles v. Iowa, 525 U.S. 113 (1998), in which the fact that an officer did not intend to arrest a suspect was what made a purported search incident to arrest illegal.”  Slip op. at 14. 
• Taking issue with the Nash Court’s (and the majority’s) reliance on Millet, the dissent contends that “Millet cannot have intended a holding that so offhandedly brings such a fundamental change to the law governing the search-incident-to-arrest exception to the warrant requirement.”  Id. at 23-24.  MW.

Read full opinion here.

Got a FIP? Watch out for suggestions by the prosecutor that the conviction shows your client has a criminal character

Renaldo K. Lucas v. United States, No. 12-CF-240 (decided October 30, 2014).

Players:  Associate Judge Thompson, Senior Judges Ruiz and Steadman.  Opinion by Senior Judge Ruiz.  PDS for Mr. Lucas.  Trial Judge Robert I. Richter.

Facts:  During closing arguments in this gun possession case, the prosecutor argued that Mr. Lucas “had [the gun] on his person just like he had that prior conviction on his record.”  The defense objected but was overruled.  During deliberations, the defense revisited the issue, asking for a mistrial or a curative instruction.  Both requests were denied.  Mr. Lucas was convicted of possession of a firearm by a felon, and related charges.

Issue: Whether the prosecutor’s comment during closing arguments that the defendant “had [the gun] on his person just like he had that prior conviction on his record” improperly invited the jury to engage in criminal propensity reasoning, and if so, whether the court’s failure to sustain an objection to the comment was prejudicial. 

Holding: The defense’s objection “was well founded and should have been sustained.” Slip op. at 16 (quoting Williams v. United States, 549 A.2d 328, 334 (D.C. 1988)).  Although the government was entitled to remind the jury of the parties’ stipulation regarding Mr. Lucas’s prior conviction, the prosecutor “was required to do so in a manner that would not be reasonably understood by the jury as an invitation to convict based on a perception of appellant’s propensity to commit crime.”  Slip op. at 15-16.  However, the error was not prejudicial.

Of Note:

Keep this case in mind for trials where your client’s prior convictions are admissible.  Prosecutors may not say anything to the jury that would imply “a propensity relationship between the two facts—appellant’s prior conviction and [the current alleged conduct.]”  Slip op. at 15. NG

Read full opinion here.

Handing off a loaded gun and driving the get-away car aren't enough to establish aiding and abetting liability for murder

Curtis L. McKnight and Robert H. Pumphrey v. United States, Nos. 12-CF-825 and 12-CF-1007 (decided October 30, 2014).

Players:  Associate Judges Glickman and Easterly, and Senior Judge Pryor.  Opinion by Judge Easterly.  Dissent by Senior Judge Pryor.  Craig N. Moore for Curtis L. McKnight.  Julian S. Greenspun for Robert H. Pumphrey.  Trial Judge William M. Jackson. 

Facts:  The government’s case against Mr. McKnight and Mr. Pumphrey rested on the testimony of Shanicka Adams.  Ms. Adams testified that from her bedroom window, she had observed Mr. McKnight and Mr. Pumphrey standing by Mr. Pumphrey’s car, while Mr. McKnight and the decedent argued.  The decedent then got out of his car and began searching through his trunk.  Mr. Pumphrey said, “He’s looking for something, he’s looking for something,” as the decedent rummaged through the trunk of his car.  Mr. Pumphrey then retrieved a gun from the passenger side of his car and handed it to Mr. McKnight. Mr. McKnight shot and killed the decedent.  Mr. Pumphrey drove Mr. McKnight away in Mr. Pumphrey’s car.  Mr. Pumphrey was convicted of second-degree murder while armed, under an aiding and abetting theory. 

Issue: Whether there was sufficient evidence for the jury to conclude that Mr. Pumphrey intended to commit second-degree murder while armed. 

Holding: No. 

Of Note:

This case can be helpful in establishing the limits of aiding and abetting liability.  At 2:00 a.m., Mr. Pumphrey observed his co-defendant arguing with the decedent.  As the decedent searched through his trunk, Mr. Pumphrey warned his co-defendant that the decedent was looking for something.  Mr. Pumphrey then retrieved a loaded gun from his car and gave it to his co-defendant, who shot the decedent.  Mr. Pumphrey drove his co-defendant from the scene.  Nonetheless, there was no evidence “from which one could determine that Mr. Pumphrey intended Mr. McKnight to shoot [the decedent] or should reasonably appreciated that there was an extreme risk that Mr. McKnight would do so.”  Slip op. at 11.  NG

Read full opinion here.