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?
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
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
No comments:
Post a Comment