Alley-way questioning and pat-down request give rise to Fourth Amendment seizure in light of officers’ targeted approach and persistent questioning, the limits on appellant’s movement, and the fact that the encounter occurred in a high crime area with “high visibility” patrols

Nowhere to run by Douglas M. Paine, licensed under Creative Commons

Dozier v. U.S., 15-CF-1098

• Holding 1: Appellant was seized for Fourth Amendment purposes by the time he complied with an officer’s request to put his hands on the wall so that police could frisk him for weapons, where armed, uniformed police parked in front of the alley appellant was walking out of, got out, walked up to appellant, and asked if they could speak to him (twice), if he had any weapons, and after appellant exposed his waistband to prove he did not, if they could pat him down. “Even assuming [this] interaction . . . began in a consensual manner, . . . there was a Fourth Amendment seizure by the time appellant submitted to the officers’ request to a pat-down” because “an innocent person in appellant’s situation would not have felt free to decline that request.” Slip Op. at 12. Factors relevant to the court’s determination include: the natural apprehensiveness any person would feel when approached by multiple officers in a secluded alley late at night, id. at 15; the officers’ persistence which signaled that appellant could not terminate the encounter until police finished their investigation, id. at 15-16, 23-24; and the restraint on appellant’s movement caused by the officers parking at the secluded alley’s entrance and walking toward appellant from that direction, id. at 23. 
• Of Note: In addition, the Court considered that “the encounter took place in a ‘high crime area’”--one subject to “frequent[] and visibl[e]” patrols--“and involved an African-American man.” Id. at 16, 17. The court deemed these factors relevant because even an innocent man in such a neighborhood might reasonably perceive that he is the target of a criminal investigation when approached by police; id. at 16-17, 19; because “persons of color” were “more likely to be subjected to this type of police surveillance” and therefore “particularly justified” in fearing it; id. at 19; and because “[i]n the isolated setting where the encounter took place, appellant . . . reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened,” id. at 22.
• Holding 2: Because there was no reasonable articulable suspicion to seize by the time appellant submitted to being patted down, testimony that appellant took flight during the pat-down and subsequently threw an object containing a controlled substance should have been suppressed as the fruits of the illegal seizure. Id. at 27-28.

Read the full opinion here.

A copy of this post has been added to the Fourth Amendment section of the (Early) Year In Review (Part 1).

WCC

First-degree burglary statute covers the common hallway of an occupied residential apartment building.

Hallway by Jack Zalium, licensed under Creative Commons

Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)

• Holding 1: Proof that appellant pushed complainant at knife-point through the entrance and into the common hallway of her multi-unit row house apartment building was sufficient to establish that he “enter[ed] . . . [a] dwelling” as required for the crime of first-degree burglary, even though appellant did not enter into any apartment before he fled the scene. A “dwelling” includes “any enclosed space used for human habitation,” such as a residential apartment building. Slip Op. at 9. The common hallway at issue, located behind a locked door, was “in no way . . . so open to the public at large as to be considered outside” and was therefore “part of the private dwelling.” Id. at 12.
• Holding 2: The evidence presented was sufficient to establish kidnapping, notwithstanding withstanding appellant’s argument that the only detention of complainant was brief and incidental to the assault and robbery complainant suffered. Id. at 14-15.
• Holding 3: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Id. at 20.
• Holding 4: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Id. at 24-25.

Read the full opinion here.

Relevant portions of this post have been added to Expert Testimony section and Physical Evidence section of The (Early) Year in Review (Part 2), as well as the Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

WCC

Convictions reversed in light of "stark" racial disparity in the use of peremptory strikes, failure to proceed to steps two and three of Batson inquiry.

The Jury (1861) by John Morgan, Public Domain

Beasley v. U.S., 17-CF-1398 (decided November 21, 2019)

• Holding 1: Following defense counsel’s Batson challenge, the trial court erred in finding no prima facie case of discrimination, where the government “used 80% of its peremptory strikes against black jurors, a group that comprised approximately 33% of the venire.” Slip. Op. at 8. A statistical disparity of this magnitude was sufficient to create prima facie case, notwithstanding the lack of evidence regarding the racial makeup of the seated jury and the fact that the defense also struck some of the black jurors included in its prima facie case. Although the court has “taken note in some cases when certain classes of people have been totally excluded from a jury through the government’s use of strikes,” it has “never signaled that this factor was” either necessary or sufficient. Id. at 9. Given that the reasons underlying the parties’ overlapping strikes are “not readily apparent, the overlap [is] not a valid basis for subtracting . . . jurors from the step-one analysis of the government’s strikes.” Id. at 10-11.
• Holding 2: As in Haney v. United States, 206 A.3d 854 (D.C. 2019), the trial court’s erroneous finding that the defense failed to establish a prima facie case requires reversal because resuming the Batson inquiry on remand, after more than two years have passed, is not feasible. The government made “no contemporaneous proffers regarding its strikes of any jurors,” and as the government has conceded, the record provides no “obvious justification” for at least three of the relevant strikes. Id. at 13-14.

Read the full opinion here.

A copy of this post has been added to the Jury Selection section of The (Early) Year In Review (Part 2).

DCCA: Barring notices cannot bar DCHA residents and household members from areas that their leases permit them to access.

Signspotting by K@ja, licensed under Creative Commons

Foster v. U.S., 17-CM-994 (decided November 7, 2019)

• Holding: Evidence that appellant violated a notice purporting to bar him from three out of six buildings in the DCHA development where he lived with his mother was insufficient to establish the crime of unlawful entry, where appellant’s mother’s lease apparently granted appellant access to the entire development, including all common areas and grounds associated with all buildings. Although special police officers testified that the development had been subdivided into three-building sections for purposes of issuing and enforcing barring notices, and that appellant had been barred from the section where he did not reside, the alleged subdivision was not reflected in appellant’s mother’s lease agreement, which listed appellant as a household member and which was further binding on DCHA. Accordingly, the government failed to prove that appellant was an “unauthorized person” subject to barring on the property listed in the notice, i.e., that he was not a “member of [a] resident’s household” on the property in question. 14 DCMR § 9600.2.

Read the full opinion here.

A copy of this post has been added to Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

- WCC

2019: The (Early) Year in Review (Part 4)

POST-CONVICTION ISSUES

Ineffective Assistance of Counsel

Free Image 1428123, Public Domain

Garza v. Idaho, 139 S. Ct. 738 (2019)–

• Holding: When trial counsel fails to file an appeal as instructed, the presumption of prejudice identified in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies, even when the defendant has signed an explicit waiver of appeal.
• Of Note: This opinion abrogates Stewart v. United States, 37 A.3d 870, 877 (D.C. 2012).

Blackmon v. U.S., 18-CO-73 (decided September 12, 2019) –

• Holding: Where appellant claimed that counsel’s ineffective assistance led him to reject a plea offer, see Lafler v. Cooper, 566 U.S. 156 (2012), the trial court did not err in finding that appellant was not prejudiced by his lawyer’s advice regarding the maximum sentence he could receive if he went to trial, given the court’s determination that appellant could not have “gotten through a plea colloquy,” even if he had tried to accept the government’s offer. “That finding was in essence a finding that the court would have rejected appellant’s plea.” Slip Op. at 16.

See also Smith v. U.S., 15-CO-363 (decided March 14, 2019) (finding no prejudice from counsel's  failure to present evidence of self-defense, where the record showed that appellant “deliberately chose to risk the fatal encounter . . . by arming himself . . .and going to confront” the decedent, and had “initiated the confrontation . . . with the intent to kill or do great bodily harm.” ). Read the full Smith synopsis in the self-defense section of the (Early) Year in Review (Part 3).

Double Jeopardy

Alex Trebek by Anders Krausberg/Peabody Awards, licensed under Creative Commons

Andre v. U.S., 18-CO-1221 (decided August 15, 2019) –

• Holding: The Double Jeopardy Clause does not bar re-trial following the reversal of a conviction on appeal, even assuming re-conviction would expose the defendant to no additional punishment and result in no further collateral legal consequences.

Criminal Record Sealing

Image of Redacted Material from Wikimedia Commons

Larracuente v. U.S., 18-CO-308 (decided July 11, 2019) –

• Holding: The motions court did not err or abuse its discretion by denying appellant’s motion to seal his arrest and conviction for possession with intent to distribute marijuana, where the plea allocution and relevant reports indicated that he possessed more than the decriminalized amount. Notwithstanding the charge and the wide variety of conduct it could encompass, the record sealing statute neither requires nor allows sealing if the government proves by a preponderance of the evidence that appellant was guilty of conduct that has not been decriminalized. 

Washington v. U.S., 17-CO-1056 (decided April 25, 2019) –

• Holding: Where a single case contains records of arrest and/or conviction for both decriminalized and non-decriminalized offenses, the record sealing statute “gives the Superior Court discretion, in the interest of justice, to seal the portions of a case record pertaining to now-decriminalized or legalized [marijuana possession], but does not authorize the court to seal the portions of a case record pertaining to an accompanying, still-criminal or still-illegal offense.” Slip Op. at 11.

Innocence Protection Act (IPA)

Double Stranded DNA with Coloured Bases, licensed under Creative Commons

Jones v. U.S., 15-CO-1104 (decided March 7, 2019) –

• Holding: Under the IPA, once the government proffers that it has conducted a reasonable search for testable biological material, a court may deny an application for post-conviction DNA testing without an evidentiary hearing, unless the defendant objects and raises a genuine dispute as to the reasonableness of the search. Slip Op. at 37-41. However, a hearing may be required to determine whether the government should be sanctioned for failing to preserve evidence that is relevant to a motion for new trial. Id. at 41-42.

Rule 11

Maddux v. D.C., 15-CT-1195 (decided July 25, 2019) –

• Holding: Following appellant’s request for pretrial release to care for his disabled children, a magistrate judge’s statements that (a) she would likely detain appellant for a failed drug test until the case “resolved one way or the other” and that (b) defense counsel was “free to talk to [the government] about whether there’s any kind of offer” that might let him “to return to his family” did not invalidate appellant’s subsequent guilty plea. Specifically, the statements did not constitute “coercion” or “participation” in the plea negotiations in violation of Rule 11, and did not require the judge to ask whether appellant’s sole reason for pleading guilty was to avoid detention.

Eighth Amendment

Williams v. U.S., 16-CO-570 (decided April 4, 2019) –

• Holding: Assuming that Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 126 S. Ct. 718 (2016), retroactively constrain a judge’s discretion to impose a de facto juvenile life without parole sentence—one that places parole eligibility beyond the life expectancy of someone who was under eighteen at the time of his offense—such a sentence need not be vacated under the Eighth Amendment, given the availability of sentencing review under the Incarceration Reduction Amendment Act of 2016 (“IRAA”). 

Napue Materiality

U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) (false microscopic hair comparison testimony was material to appellant’s convictions related to an assault on his former landlord where it helped tie him to the murder that was the alleged motive for the assault)

Jones v. U.S., 15-CO-1104 (decided March 7, 2019) (false microscopic hair comparison testimony was material to the outcome of appellant’s armed robbery trial, given high degree of certainty expressed regarding the comparison and the prosecutor’s reliance on that certainty in closing)

Read full synopses for Nelson and Jones in the expert testimony section of (Early) Year in Review (Part 2).

WCC

2019: The (Early) Year in Review (Part 3)

NOTE: Updates to previous Year-in-Review posts:
Following the publication of Parts 1 and 2 of the (Early) Year in Review, the DCCA decided cases related to issues covered in those sections. For this reason, on October 15, 2019, synopses of the DCCA's opinions in Andrews v. D.C., 17-CT-523 (decided August 15, 2019) and Jackson v. U.S., 16-CO-523 (decided August 22, 2019) were added to the Fourth Amendment section of Part 1. Similarly, on October 21, 2019, synopses of the DCCA's opinions in Sims v. U.S., 15-CF-914 (decided August 15, 2019) and U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) were added to the Evidentiary Issues section of Part 2. Similarly, where a future DCCA case decides an issue related to a topic covered in a previous year-in-review post, a synopsis of the case will be added to the relevant prior post. The (Early) Year in Review continues below with Part 3. - WCC

UPDATE: Foster v. U.S., 17-CM-994 (decided November 7, 2019) was added to Elements/Sufficiency of the Evidence section of this post on November 8, 2019. Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) was added to the same section on November 25, 2019. WCC

SECOND AMENDMENT

Stuffed Bear Paws by Curious Expeditions, licensed under Creative Commons

Dubose v. U.S., 18-CO-674 (decided August 8, 2019) –

• Holding 1: Trial counsel was not deficient for failing to challenge appellant’s CPWL, UF, and UA charges under the Second Amendment, in light of Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017), which struck down part of D.C.’s gun licensing statute, because that case is not controlling and appellant had already been convicted and sentenced by the time it was decided. Slip Op. at 4-7.
• Holding 2: Appellant was not prejudiced by counsel’s failure to challenge the CPWL, UF, and UA statutes on Second Amendment grounds because, notwithstanding any defect in the licensing statute, appellant lacked the statutorily required registration certificate for the gun he possessed and had not shown that he was otherwise qualified to obtain a license to carry it. Id. at 7-12.

PRETRIAL DISCLOSURES

Rahman v. U.S., 17-CM-1293 (decided June 13, 2019) – 

• Holding: Where appellant was arrested by an MPD officer after refusing to leave a McDonald’s as requested by the special police officer (SPO) working there, the Jenck’s act did not entitle appellant to receive the incident report that the SPO submitted to the McDonald’s corporation. The government never “possessed” the report for Jenck’s act purposes because, in preparing it, the SPO was functioning as a McDonald’s contractor rather than a member of the prosecution team.

ELEMENTS/SUFFICIENCY OF THE EVIDENCE

Advertisement for the 1923 silent film The Acquittal from Wikimedia Commons, Public Domain 

**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) – First-Degree Burglary/Kidnapping

• Holding 1: Proof that appellant pushed complainant at knife-point through the entrance and into the common hallway of her multi-unit row house apartment building was sufficient to establish that he “enter[ed] . . . [a] dwelling” as required for the crime of first-degree burglary, even though appellant did not enter into any apartment before he fled the scene. A “dwelling” includes “any enclosed space used for human habitation,” such as a residential apartment building. Slip Op. at 9. The common hallway at issue, located behind a locked door, was “in no way . . . so open to the public at large as to be considered outside” and was therefore “part of the private dwelling.” Id. at 12.
• Holding 2: The evidence presented was sufficient to establish kidnapping, notwithstanding withstanding appellant’s argument that the only detention of complainant was brief and incidental to the assault and robbery complainant suffered. Id. at 14-15.

*Foster v. U.S., 17-CM-994 (decided November 7, 2019) – Unlawful Entry

• Holding: Evidence that appellant violated a notice purporting to bar him from three out of six buildings in the DCHA development where he lived with his mother was insufficient to establish the crime of unlawful entry, where appellant’s mother’s lease apparently granted appellant access to the entire development, including all common areas and grounds associated with all buildings. Although special police officers testified that the development had been subdivided into three-building sections for purposes of issuing and enforcing barring notices, and that appellant had been barred from the section where he did not reside, the alleged subdivision was not reflected in appellant’s mother’s lease agreement, which listed appellant as a household member and which was further binding on DCHA. Accordingly, the government failed to prove that appellant was an “unauthorized person” subject to barring on the property listed in the notice, i.e., that he was not a “member of [a] resident’s household” on the property in question. 14 DCMR § 9600.2.

Roberts v. U.S., 17-CF-341 (decided September 26, 2019) – Unlawful Disclosure

• Holding 1: “[U]nlawful disclosure [under D.C. Code § 22-3052] can include making a sexual image available for viewing even if the image is not actually viewed by anyone other than the defendant and the person depicted in the image.” Slip Op. at 20.
• Holding 2: Instructions requiring the jury to find that the defendant “exhibited the sexual image to another person or . . . in a place where it is viewable [by] another person” did not adequately convey that unlawful disclosure requires disclosure or exhibition to someone other than the person depicted in the image. Id. at 21-22. This error was not harmless beyond a reasonable doubt because the evidence that the images were available to be seen by others was not overwhelming. Id. at 23-24. The error cannot be rectified by entry of judgment on attempted unlawful disclosure because it is not clear beyond a reasonable doubt that the defendant attempted to display the images to anyone other than the person depicted in the image. Id. at 26.
• Holding 3: There was sufficient evidence to support the defendant’s unlawful disclosure convictions because, for each count, there was evidence that the defendant made a sexual image available for viewing by someone other than the person depicted, and the person depicted was “identified or identifiable” to herself or, in one case, her mother. Id. at 30-32. Unlawful disclosure does not require that the person depicted be “identified or identifiable” based on the content of the image alone. Id. at 32-33. Nor does it require that the person depicted be identified by, or identifiable to, anyone other than the person depicted. Id. at 35

Rahman v. U.S., 17-CM-1293 (decided June 13, 2019) – Unlawful Entry

• Holding: The trial court’s finding that appellant failed to leave a McDonald’s after a special police officer asked him to do so several times was sufficient to support appellant’s conviction for unlawful entry. Slip Op. at 13-16.

Hernandez v. U.S., 15-CM-130 (decided May 9, 2019) – Simple Assault

• Rehearing en banc granted to consider whether evidence of unwanted touching is sufficient to establish simple assault under D.C. Code § 22-404(a). See the panel opinion for more information about the evidence presented.

White v. U.S., 17-CF-530 (decided May 9, 2019) – Possession of a Prohibited Weapon (PPW)/Assault with a Dangerous Weapon (ADW)/Insurance Fraud/Aggravated Assault/Assault with Significant Bodily Injury

• Holding 1: Where an indictment charged ADW (a pole) and PPW (a pole), the trial court did not err in instructing that the government had no burden to prove that the pole in evidence was the pole possessed and used in the assault. Slip Op. at 7-10. Rather, the government’s burden was to prove that the item possessed and used to commit assault was a pole and that the pole was a dangerous weapon.
• Holding 2: Evidence that appellant “fixed up” falsified receipts and communicated with a fraud investigator regarding a false insurance claim was sufficient to sustain his convictions for first-degree insurance fraud and conspiracy to commit insurance fraud. Id. at 11-12.
• Holding 3: Evidence that, after being struck in the head with a metal pole, complainant was bloody, disoriented, and in pain but resisted going to the hospital and was discharged after receiving a CT scan and a prescription for Tylenol 3 was insufficient to establish “serious bodily injury” as required for an aggravated assault conviction but sufficient to establish “significant bodily injury” as required for felony assault. Id. at 13-25.

Johnson v. U.S., 17-CM-1117 (decided May 9, 2019) – Second Degree Child Cruelty/Possession of a Prohibited Weapon (PPW)

• Holding 1: Evidence was sufficient to show “excessive force” required for attempted second degree child cruelty conviction, where “appellant repeatedly, forcefully, and indiscriminately beat A.J. with a broomstick-like stick while he was sitting on the floor in the corner of his room with his arm over his head.”
• Holding 2: Evidence was sufficient to show that the wooden stick was a “dangerous weapon” for purposes of PPW conviction, where appellant wielded it with “force hard enough to break [it] and cause bruises and marks on A.J.’s body, . . . without taking any precaution to avoid striking parts of A.J.’s body that would cause serious injury, such as his head or face,” even though stick did not actually cause great bodily injury.

Coleman v. U.S., 16-CM-345 (decided March 7, 2019) – Stalking

• Holding 1: To support a conviction for attempted stalking under D.C. Code 22-3133(a), the government must prove beyond a reasonable doubt that the defendant: (1) purposely engaged in a course of conduct involving at least two occasions of statutorily proscribed behavior (e.g., following, monitoring, or communicating) and (2) possessed the requisite mental state—e.g., should have known that a “reasonable person in [complainant’s] circumstances” would fear for her or another’s safety, “[f]eel seriously alarmed, disturbed, or frightened,” or “[s]uffer emotional distress”—on at least two of the occasions comprising the “course of conduct.” Slip Op. at 2-3, 22-33. 
• Holding 2: The “should have known” standard is objective and depends on whether a reasonable person in the defendant’s circumstances would have known that his conduct would cause a reasonable person in the complainant’s position to feel the requisite fear, alarm, disturbance, fright, or emotional distress.  Id. at 35-37. “[T]he level of fear, alarm, or emotional distress” that a reasonable complainant would experience as a result of the defendant’s conduct “must rise significantly above that ‘which [is] commonly experienced in day to day living,’ and must involve a ‘severe[] intrusion on the victim’s personal privacy and autonomy[.]’ Ordinary ‘uneasiness, nervousness, [and] unhappiness’ are insufficient.” Id. at 40-41 (citations omitted).

Holman v. D.C., 15-CT-335 (decided February 28, 2019) – Civil Protective Order (CPO) Violation

• Holding: Intentional placement of telephone calls may qualify as “contact” for the purposes of a CPO violation, even where the calls go unanswered. Even assuming that the recipient had to be aware of the call while the defendant was making it, the record supports that the recipient was aware of the defendant’s calls and chose not to answer them. 

SELF-DEFENSE

Block and Punch by Peter Harrison, licensed under Creative Commons

Smith v. U.S., 15-CO-363 (decided March 14, 2019) –

• Holding: In a murder case, where evidence showed that appellant left an altercation with the decedent to arm himself before returning to the altercation and shooting the decedent, trial counsel was not ineffective for failing to present a defense of perfect or imperfect self-defense (i.e., manslaughter) based on evidence that the decedent had threatened appellant with pocket knife. Such evidence could not have entitled appellant to a jury instruction on perfect or imperfect self-defense because appellant “deliberately chose to risk the fatal encounter . . . by arming himself with a deadly weapon and going to confront” the decedent, Slip Op. at 14, and “initiated the confrontation with the victim with the intent to kill or do great bodily harm.” Id. at 19-20.

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

• Holding: The prosecutor’s closing argument suggesting that appellant could not claim self-defense because he “brought [a] gun to the neighborhood” had the potential to convey an “erroneous” message about loss of the right to claim self-defense but ultimately did not when taken together with the remainder of the closing. Slip Op. at 25.  Any error in instructing the jury that first aggressors and provocateurs forfeit the right to self-defense was harmless. Id. at 30-34

*Added November 8, 2019
*Added November 25, 2019

WCC

2019: The (Early) Year In Review (Part 2)

UPDATE: Sims v. U.S., 15-CF-914 (decided August 15, 2019) and U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) were added to Evidentiary Issues section of this post on October 21, 2019. Beasley v. U.S., 17-CF-1398 (decided November 21, 2019) was added to Jury Selection section of this post on November 22, 2019. Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) was added to the Expert Testimony section and the new Physical Evidence section of this post on November 25, 2019. WCC

JURY ISSUES

Right to a Jury Trial

Miller v. U.S., 13-CM-628 (decided June 6, 2019) –

• Holding: Failure to provide a jury trial for a deportable offense was plain error in light of Bado v. U.S., 186 A.3d 1243 (D.C. 2018) (en banc), even if appellant was subject to deportation on other grounds at the time of trial and had no pre-existing right to remain in the U.S. 

Jury Selection

**Beasley v. U.S., 17-CF-1398 (decided November 21, 2019) –

• Holding 1: Following defense counsel’s Batson challenge, the trial court erred in finding no prima facie case of discrimination, where the government “used 80% of its peremptory strikes against black jurors, a group that comprised approximately 33% of the venire.” Slip. Op. at 8. A statistical disparity of this magnitude was sufficient to create prima facie case, notwithstanding the lack of evidence regarding the racial makeup of the seated jury and the fact that the defense also struck some of the black jurors included in its prima facie case. Although the court has “taken note in some cases when certain classes of people have been totally excluded from a jury through the government’s use of strikes,” it has “never signaled that this factor was” either necessary or sufficient. Id. at 9. Given that the reasons underlying the parties’ overlapping strikes are “not readily apparent, the overlap [is] not a valid basis for subtracting . . . jurors from the step-one analysis of the government’s strikes.” Id. at 10-11.
• Holding 2: As in Haney v. United States, 206 A.3d 854 (D.C. 2019), the trial court’s erroneous finding that the defense had failed to establish a prima facie case requires reversal because resuming the Batson inquiry on remand, after more than two years have passed, is not feasible. The government made “no contemporaneous proffers regarding its strikes of any jurors,” and as the government has conceded, the record provides no “obvious justification” for at least three of the relevant strikes. Id. at 13-14.

Haney v. U.S., 17-CF-420 (decided April 25, 2019) –

• Holding 1: The defense established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), where “the prosecutor used seven out of nine (or 78%) of her peremptory challenges,” including every one of her first six challenges, to strike black jurors, who comprised 39% of the qualified venire, and “used four (or 44%) of her peremptory challenges to strike black males, who constituted only 18% of the venire,” with the result that “no black males served on the jury in a case where the defendant is a black male.” Slip Op. at 12.
• Holding 2: The trial court’s erroneous refusal to proceed to step three of the Batson inquiry (based on its erroneous determination that the defense had not made a prima facie showing), required reversal, as opposed to remand, because the prosecutor proffered demeanor-based reasons for her strikes, the trial court made no contemporaneous findings regarding those reasons, the record provided no basis to test their accuracy, and, after more than two years, a remand hearing could not be expected to “replicate the probing inquiry to which appellant was entitled.” Id. at 15-19.

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

• Holding: “[U]se of [a noise-cancelling] husher during individual-juror voir dire d[oes] not constitute closure or partial closure of the courtroom," burdening the right to a public trial, "but instead was a reasonable alternative [] to closing the proceeding, that protected appellant’s public-trial right.” Slip Op. at 19-20 (internal quotation marks and citation omitted).

Jury Deliberations 

Roberts v. U.S., 15-CF-307 (decided August 8, 2019) –

• Holding 1: Where a juror’s note indicated a possible deadlock and a numerical split in the jury’s voting, the trial court erred and violated appellant’s constitutional right to be present and represented by counsel at trial when, in an effort to prevent itself from learning the numerical split, the court refused to allow defense counsel to read the note. Slip Op. at 8-11.
• Holding 2: The trial court’s error was not harmless beyond a reasonable doubt because, had defense counsel been able to read the note, he could have relayed its contents (minus the numerical split) and argued—“with authority” and a “reasonable possibility” of success—for a mistrial or an instruction that no juror should “surrender [her] honest conviction as to the weight or effect of evidence solely because of the opinion of [her] fellow jurors, or only for the purpose of returning a verdict.” Id. at 12-13. Although defense counsel sought these remedies unsuccessfully below, the trial court’s reason for refusing to grant them was its self-imposed ignorance regarding the note’s content. Id. at 13-14.

EVIDENTIARY ISSUES

Expert Testimony

**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) –

• Holding: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Slip Op. at 20.

*U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) –

• Background: Appellant was convicted of multiple offenses related to an attack on his former landlord, Kelly, and the murder of Nichols, the man who replaced him as Kelly’s tenant. Kelly testified that appellant had entered his home after moving out and shot him in back of the head, before stabbing him, hitting him with a cinder block, and trying to put him in the trunk of a car. Witnesses corroborated that appellant fled Kelly’s house after the two struggled with each other. After Kelly called 911, police discovered Nichols’s body inside the house. At trial, the government’s theory was that appellant attacked Kelly to cover up the fact that he (appellant) shot Nichols earlier in the day. Appellant’s defense was that Kelly shot Nichols and then attacked appellant for refusing to help dispose of Nichols’s body. The government elicited false expert testimony purporting to match hair found on Nichols’s body to appellant, hair found on appellant’s coat to Nichols, and hair found on a cinder block in Kelly’s house to Kelly.
• Holding: The government’s false hair comparison testimony was material to appellant’s convictions related to the attack on Kelly because it tied appellant to Nichols’s murder, helping the government prove appellant’s alleged motive for assaulting Kelly. The prosecutor linked the two crimes in opening and closing and argued that hair analysis would prove that appellant was guilty of both. Moreover, by linking appellant to Nichols’s murder, the hair analysis contradicted appellant’s defense that Kelly had attacked him for refusing to help dispose of Nichols’s body. 

Williams v. U.S., 13-CF-1312 (decided June 27, 2019) (granting appellant’s petition for rehearing) –

• Holding: After Gardner v. U.S., 140 A.3d 1172 (D.C. 2016) and Motorola, Inc. v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), “it is plainly error to allow a firearms and toolmark examiner to unqualifiedly opine, based on pattern matching, that a specific bullet was fired by a specific gun.” Slip Op. at 22. 

Jackson v. U.S., 17-CF-943 (decided June 27, 2019) –

• Holding: In an assault case, the trial court reversibly erred in admitting evidence that appellant used PCP eighteen hours before he struck his longtime roommate in the eye with a knife, where the government presented no expert testimony to enable the jury to decide whether appellant was still under the influence at the time of the attack. Absent such expert testimony, appellant’s PCP use was substantially more prejudicial than probative and was not admissible to explain why appellant would attack the complainant or to impeach appellant’s ability to perceive and recall the incident. 

Jones v. U.S., 15-CO-1104 (decided March 7, 2019) –

• Holding: False testimony regarding microscopic hair comparison was material to the outcome of appellant’s armed robbery trial, given the high degree of certainty that the expert expressed regarding the comparison and the prosecutor’s forceful reliance on that certainty in closing. The remaining evidence, consisting of eyewitness identifications by long-time acquaintances, was not so overwhelming as to render the hair comparison immaterial. Slip Op. at 25-36. 

Hearsay

*Sims v. U.S., 15-CF-914 (decided August 15, 2019) –

• Holding 1: Where a government witness claimed that while talking to 911 outside of a crowded party, he overheard an unknown declarant accuse appellant of a shooting, the trial court erred by admitting the accusation as a present sense impression without sufficient evidence that it was based on personal knowledge. To satisfy the present sense impression exception, the proponent of a hearsay statement must show by a preponderance of the evidence, inter alia, that the statement was based on personal knowledge. Slip Op. at 10-13. The evidence presented did not meet this standard. No witness placed the unknown declarant at the shooting. Id. at 14-15. Although the declarant was inferentially near the government witness when the witness later found decedent’s body and called 911, the record does not show that this call happened close enough in time and place to the shooting to infer the declarant’s presence there. Id. at 15-18. 
• Holding 2: The trial court plainly erred in admitting evidence that when accused, appellant did not deny having dropped the clip from his gun while fleeing the scene of the shooting, under the adoptive admission exception to the hearsay rule, because government put forward no evidence from which a reasonable factfinder could infer that appellant heard and understood the accusation. Id. at 23-25.
• Holding 3: The trial court’s errors were not harmless because the government used the erroneously admitted hearsay statements to bolster the credibility of its only eyewitness, whose account and credibility were impeached on multiple fronts. Id. at 25-32.

Holman v. D.C., 15-CT-335 (decided February 28, 2019) –

• Holding: A police officer’s notes regarding the phone number that called complainant (in alleged violation of a civil protective order), were admissible, insofar as the officer transcribed the number from the call log on complainant’s phone, which contained machine-generated output, rather than the out-of-court statements of a human declarant. Appellant’s hearsay objection did not preserve a separate challenge to the reliability of the call log, and the trial court did not plainly err in admitting evidence of it despite reliability concerns expressed on appeal.

Physical Evidence

**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)

• Holding: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Slip Op. at 24-25.

Mugshots

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

• Holding: Any error in admitting photo arrays that contained appellant’s mugshot was harmless beyond a reasonable doubt where, “[d]espite learning that appellant had broken the law” by possessing an unregistered gun and ammunition, the jury found him not guilty on some charges. Slip Op. at 24. 
• Of Note: In assessing whether admission of the photo arrays was harmless, the court reasoned, contrary to the trial court below, that “the unsmiling expressions on the men’s faces do suggest that the photos may be mugshots.” Id. at 23.

*Added October 21, 2019
**Added November 22/25, 2019

-WCC