Wednesday, January 30, 2019

Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

1. In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.

Of Note: 
The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.

Monday, December 31, 2018

Criminal Prohibition on Negligent Stalking Withstands Constitutional Challenge despite Potential Ambiguity

Beachum v. United States (decided July 31, 2018; published December 20, 2018)

Players: Associate Judges Fisher, Beckwith, and McLeese. Per curiam opinion. Vincent A. Jankoski for Mr. Beachum. Trial Judge: Patricia A. Broderick.

Facts: Following a bench trial, Mr. Beachum was convicted of attempted stalking in violation of D.C. Code § 22-3133(a)(3), which makes it unlawful:
to purposefully engage in a course of conduct directed at a specific individual . . . [t]hat [one] should have known would cause a reasonable person in the individual’s circumstances to: (A) Fear for his or her safety or the safety or another; (B) Feel seriously alarmed, disturbed, or frightened; or (C) Suffer emotional distress. 
Evidence at trial showed that between 2016 and 2017, Mr. Beachum made a series of escalating advances toward the complainant, Ms. Telfer, despite her attempts to ignore or rebuff him. He first encountered her while visiting one of her neighbors. Thereafter, he appeared on her block regularly and tried to engage her in conversation. Though she rebuffed him, he persisted. Once, he asked to speak to her while sliding his hand down his pants. Even after the neighbor moved, Mr. Beachum continued to appear on the block almost daily and to approach Ms. Telfer.

In January 2017, Mr. Beachum approached Ms. Telfer as she was arriving home and said that he wanted to speak with her. He was “extremely more aggressive” than in previous encounters and persisted, even as she tried to ignore him and unlock her door. When she got inside, Ms. Telfer called the police. While she waited for them to arrive, Mr. Beachum went to his van, wrote something down, came back, and then rang the doorbell and banged on the door for about one minute. Mr. Beachum left before the police arrived. Ms. Telfer later found a note stating: “It’s not about being your friend, it’s about being your best friend. Can you? Hi.”

Issue: Whether D.C. Code § 22-3133(a)(3) is unconstitutional because it permits conviction based on the negligent failure to realize that one’s conduct would cause fear, serious alarm, or emotional distress?

Holding: No. Although the DCCA and the U.S. Supreme Court have held that criminal threats convictions require a more culpable state of mind than negligence, see Elonis v. United States, 135 S. Ct. 2001 (2015); Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), these cases did not ban all convictions based on negligence. Rather, they presented an issue of statutory interpretation—whether statutes must be construed to require a more culpable state of mind than negligence, in the absence of a clear statement of legislative intent to the contrary. Here, by contrast, the legislature gave a clear statement of its intent to enact a ban on negligent stalking.

The statute provides adequate notice of what it prohibits by requiring proof that the person convicted had reason to believe his conduct would engender, fear, serious alarm, or emotional distress. The argument that “diverse cultural norms make it impossible to know what conduct might engender” such a response has no merit here, where, despite Ms. Telfer’s repeated efforts to rebuff him, Mr. Beachum made escalating advances, ultimately ringing her doorbell and banging on her door for about a minute.

Of Note: 
The Court does not rule out the merit of a challenge to D.C. Code § 22-3133(a)(3) in a different case, based on the argument that “diverse cultural norms make it impossible to know what conduct might engender fear, serious alarm, or emotional distress in a reasonable person.” Slip Op. at 7-8. WC.

Read the full opinion here.

Friday, December 21, 2018

DCCA: Social security numbers may fall within Miranda’s “routine booking exception”; the government need not prove an unregistered firearm is not antique unless the record suggests that it is.

(Image of Social Security Cards from Wikimedia Commons)

Toler v. United States (decided December 20, 2018)

Players: Associate Judges Beckwith and McLeese, Senior Judge Steadman. Opinion by Judge Steadman. Ian A. Willams for Mr. Toler. Trial Judge: Hon. Maribeth Raffinan.

Facts: While executing a search warrant on Mr. Toler’s apartment, members of the Gun Recovery Unit handcuffed him and, without obtaining a waiver of his Miranda rights, asked for his name, date of birth, phone number, and social security number. Mr. Toler provided this information and volunteered that he was a former U.S. Marine. During their search, officers seized three firearms, assorted ammunition, and Mr. Toler’s apartment lease. An indictment later charged him with, inter alia, possession of an unregistered firearm and unlawful possession of a firearm by a person previously convicted of a crime punishable by more than one year of imprisonment. A jury found Toler guilty of the latter offense, based on his un-Mirandized statements to police and a certified copy of a U.S. Marine Corps court martial conviction, stating that someone with the name and social security number that Toler provided to police had been convicted of a crime punishable by more than one year imprisonment. The same name and social security number also appeared on the lease seized from Mr. Toler’s apartment.

Issue 1: Whether the social security number provided by Mr. Toler was subject to suppression absent a valid waiver of his Miranda rights?

Holding: No. Miranda only applies to interrogation, which includes express questioning and words or actions reasonably likely to elicit an incriminating response but excludes “routine booking questions,” such as those related to identity. Like name and date of birth, social security number is “a routine means of identifying oneself.” Slip Op. at 8. Since questioning is allowed as to these other identifiers, “it is difficult to see any meaningful distinction that would generally prohibit a request for a social security number.” Id. at 8-9. While such questions may trigger Miranda if they are “reasonably likely to elicit an incriminating response,” the question here does not fall into that category. Id. at 9. That the question was asked on the scene rather than at booking, without more, does not transform it into interrogation. See Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc)

Of Note: An exception to the general rule that questions about suspect identity are not “reasonably likely to elicit an incriminating response” may exist where the information is relevant to an element of a crime other than identity, e.g., the suspect’s date of birth in a statutory rape case. Slip Op. at 8-9 (citing State v. Locklear, 531 S.E.2d 853 (N.C. Ct. App. 2000)).

Issue 2: Whether Mr. Toler’s conviction for possessing an unregistered firearm required proof that the firearm was not “antique?”

Holding: No. Although the D.C. firearm registration requirement excludes firearms manufactured in or before 1898, antiquity is an affirmative defense that the government need only disprove when there is some evidence in the record to support it. Courts have uniformly interpreted the D.C. statute’s federal counterpart in the same manner. That the registration requirement excludes four other firearm categories further supports that the government need not disprove each one during its case in chief. To do so would be impracticable. As there was no evidence that the firearms seized from Mr. Toler’s apartment were antique, the government had no burden to prove otherwise. WC

Read the full opinion here.

Tuesday, December 11, 2018

To be punishable under D.C. Code § 22-1321(a)(1), "disorderly conduct" must cause actual, subjective fear of harm.

 Edvard Munch, The Scream, 1893, National Gallery Oslo

Solon v. United States (decided Nov. 29, 2018)

Players: Associate Judges Fisher, Thompson, and Beckwith. Opinion by Judge Thompson. Thomas C. Paynter for Ms. Solon. Trial Judge: Juliet J. McKenna.

Facts: A judge found Ms. Solon guilty of disorderly conduct in violation of D.C. Code § 22-1321(a)(1), which makes it a crime “to intentionally or recklessly act in such a manner to cause another person to be in reasonable fear that a person or property in a person’s immediate possession is likely to be harmed or taken.” Ms. Solon’s charges arose out of her interaction with climate march participants in April 2017. Holding a “TRUMP: Make America Great Again” sign, Ms. Solon tried to push her way between marchers, who were standing arm-in-arm. When she was not pushing, Ms. Solon walked from side to side, while the marchers looked on impassively. Others laughed or took photos of Solon. At one point, someone appeared to bump into her on purpose. March staff testified that her behavior was “scary” and “aggressive” but could not identify any objective on her part beyond getting between the marchers. Ms. Solon told an officer at the scene that her aim was to impede the march.

The trial court found Ms. Solon guilty of violating D.C. Code § 22-1321(a)(1) by “ramming her body into individuals who . . . were standing peacefully, expressing their views[.]” In so doing, the court rejected Ms. Solon’s argument that § 22-1321(a)(1) required the victim’s actual, subjective fear of injury. The court found that although the government had not proven actual, subjective fear, conduct sufficient to create objectively reasonable fear of immediate bodily harm would suffice for conviction. In the court’s view, Ms. Solon’s “demeanor,” “agitation,” and “volatility” met this standard.

Issue 1: Whether a conviction for disorderly conduct under D.C. Code § 22-1321(a)(1) requires proof that the charged conduct caused actual, subjective fear of harm?

Holding: Yes. On its face, D.C. Code § 22-1321(a)(1) appears to require proof that the perpetrator’s conduct “cause[d] [someone] to be in . . . fear.” Legislative history confirms this interpretation. When a subcommittee proposed that § 22-1321(a)(1)’s general prohibition on intentional or reckless conduct made a separate anti-jostling provision of the statute redundant, the Judiciary Committee disagreed, noting § 22-1321(a)(1)’s distinct requirement for the victim’s actual, subjective fear of harm. “In light of th[is] legislative history, . . . § 22-1321(a)(1) requires proof that the defendant’s charged conduct placed another person in fear of harm to his or her person.”

Issue 2: Whether Ms. Solon’s conviction may stand?

Holding: No. The trial court’s verdict relied solely on its erroneous determination that the government did not have to prove that Ms. Solon’s conduct caused actual fear among the demonstrators. Although, ordinarily, the Court would remand for a correct application of the statute, the Court will not do so here because the trial court already found that Ms. Solon’s behavior did not place anyone in fear of harm. This finding was neither plainly wrong nor without evidence to support it— none of the marchers manifested any fear of Ms. Solon, who by herself; rather, some were laughing; police were nearby; and witnesses confirmed that she appeared to lack any objective beyond getting in between the marchers. WC

Friday, November 30, 2018

Show me the note! Defendants have a right to see all jury notes; judges cannot respond blindly to jury notes in the name of shielding themselves from the jury’s numerical split

Coley v. United States (decided November 15, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion for the Court by Judge Glickman. Deborah A. Persico for Coley.  PDS as amicus curiae. Trial Judge: Michael Ryan.

Facts: Appellant was tried for assault with intent to kill and related offenses.  The defense was misidentification. On the third day of deliberations, the jury sent a note that it had reached a unanimous verdict. However, when the third juror was polled about whether she agreed with the verdict, she responded, “I can’t.” Judge Ryan stopped the poll and instructed the jury to continue deliberating. Twenty-five minutes later, Judge Ryan informed the parties that the jury had sent a note.  However, he had not read the note because his clerk had taken the note to Judge Canan so that Judge Ryan would not learn improper information such as a numerical split. The parties were not shown the note. 

Judge Canan reviewed the note, determined that it contained information Judge Ryan should not see, and advised Judge Ryan to remind the jury not to reveal its voting split. Judge Ryan proposed also telling the jury that he had not read the note, did not want to know who sent it, and that the jury should resume deliberations. Defense counsel moved for a mistrial. In the alternative, he requested the bracketed portion of Instruction 2.603, known as a Crowder instruction, to reduce the risk of coercion by instructing the jurors that they are not required to surrender their honest convictions. Defense counsel maintained that the note likely revealed an 11:1 split and that the dissenter was likely the juror who dissented in the poll. He argued that in the absence of a Crowder instruction, the court’s directive would signal to the lone holdout that she was required agree everyone else. Judge Ryan denied the request for a Crowder instruction on the ground that there was insufficient evidence of a likelihood of coercion and that defense counsel’s suggestion was speculative.

One hour later, the jury returned a unanimous verdict. The parties subsequently learned that the note was written by the poll dissenter and read, “I don’t feel that he did it.” Defense counsel moved for a new trial on the ground that the verdict was likely tainted by coercion. Judge Ryan denied to motion. 

Issue 1: Did the trial judge err in failing to disclose to defense counsel the contents of a jury note which it believed contained the numerical divide of the jury?

Holding: Yes.  The trial court “plainly erred” by withholding the juror’s note from appellant.  This was a “clear violation” of the court’s prior cases interpreting a defendant’s right to be present at every stage of the trial. The court explained that even if the trial judge needed to be shielded from who wrote the note and what it said, appellant should have been allowed to argue the significance of the note to the consulting judge, who was in effect a second decision maker in the case.

Issue 2: Did the trial judge abuse his discretion when he denied the defense request for a Crowder instruction, where he was ignorant of the jury note’s content and author, and the consulting judge was ignorant of context such as the prior poll breakdown? 

Holding: Yes. The court held that the trial judge lacked a firm factual foundation for his ruling because he was ignorant of material facts necessary to evaluate the likelihood of juror coercion. The two-judge procedure, while well-intentioned, was “flawed” because neither judge had sufficient information to evaluate the coercive potential of the situation or fashion an appropriate response. Judge Ryan did not know what the note said, and Judge Canan lacked contextual information, such as knowledge of the poll breakdown, necessary to advise Judge Ryan on how to respond. The court suggested that this problem could have been remedied if the parties had seen the note and been allowed to argue its significance to Judge Canan.     

Issue 3: Was there a substantial likelihood of a coerced verdict requiring a new trial?

Holding:  Yes.  The juror’s note both clarified that she had intended to publicly dissent from the verdict during the poll and revealed the settled nature of her belief. Because the follow-up note was from the poll dissenter alone and spoke only of her belief in innocence, it was a strong indication of her isolation in a jury that was 11:1 for conviction.  Unlike the typical poll breakdown where the split is unknown, after the note, the risk of coercion was sufficiently great to require an affirmative effort by the judge, such as a Crowder instruction, to dispel the risk that an instruction to continue deliberating would culminate in a coerced verdict.       

Of Note: 
The Court’s opinion suggests that trial courts may continue to utilize a two-judge procedure to insulate the trial judge from knowledge of the jury’s division. However, counsel must be allowed to see the note, address the reviewing judge, and argue the note’s significance to the reviewing judge so that he or she can make an informed recommendation.  SS

Read the full opinion here.

Saturday, October 13, 2018

For assaults on police, the NEAR Act neither requires jury-demandable prosecution nor expands the right to claim self-defense.

Coleman v. United States (decided October 11, 2018)

Players: Associate Judges Glickman and Fisher and Senior Judge Washington. Opinion by Judge Washington. Fletcher P. Thompson for Appellant. Trial Judge: Kimberly S. Knowles.

Facts: MPD officers arrested appellant for assault on a police officer (“APO”) following an encounter outside of his vehicle. At trial, the government presented evidence that when the officers approached, appellant became agitated, ignored requests to move out of the street, and flung his arms wildly, hitting two officers. Appellant continued to resist, ripping a third officer’s uniform when police took him to the ground.

The government elected to prosecute appellant for misdemeanor simple assault, a non-jury-demandable offense, rather than APO, which would have been jury-demandable under the Neighborhood Engagement Achieves Results (“NEAR”) Act. Appellant nevertheless argued that he was entitled to a jury trial. Appellant further argued that because the government had declined to prosecute APO, he should not be bound by the limits on self-defense that apply when the complainant is a police officer. The trial court rejected both arguments and found appellant guilty of simple assault.

Issue 1: Whether the NEAR Act requires the government to charge jury-demandable APO when the complainant in an assault is a police officer?

Holding 1: No. The NEAR Act created separate APO and resisting arrest offenses in response to widespread concern that APO was too broadly defined. Although the Act also increased the penalty for misdemeanor APO and resisting arrest to make both offenses jury-demandable, there is no evidence that the Council intended to remove the government’s ability to prosecute simple assault where the complainant is a police officer. Simple assault remains a lesser and included offense of APO.

Issue 2: Whether the NEAR Act expands the right to claim self-defense in simple assault cases where the complainant is a police officer?

Holding 2: No. The rule whereby one may not use force against a police officer in self-defense unless the officer has used excessive force exists to protect officers in the line of duty. Although the NEAR Act limits what may constitute APO, there is no evidence that the Council intended to overrule the restriction on self-defense claims. Broadening the right to use force against officers would endanger them and impede their work. WC.

Read the full opinion here.

Tuesday, September 18, 2018

Leaving after colliding requires reason to believe a collision occurred.

Crawford v. United States (decided Sept. 6, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Nebeker. Opinion by Chief Judge Blackburne-Rigsby. Dissenting Opinion by Senior Judge Nebeker. Rupa Ranga Puttagunta for Appellant. Trial Judge: Yvonne Williams.

Facts: Appellant was convicted for leaving after colliding with property damage. At trial, officers testified that they heard a “loud crash” while appellant was moving his car out of a parallel parking space. One officer testified that appellant’s vehicle was “up against the [one] in front of it,” a Volvo, having apparently collided with it, and that appellant then reversed and drove away at about ten miles per hour. The Volvo’s owner testified that he later observed a white streak along its rear bumper. Appellant denied having collided with the vehicle.

In rendering its findings of fact, the trial court expressed doubt as to whether appellant knew he had been in a collision, noting that he could have grazed the bumper without realizing it. The court nevertheless found appellant guilty based on its determination that lack of knowledge was no defense.

Issue 1: Whether the trial court erred by determining that lack of knowledge was not a defense?

Holding 1: Yes. “[N]ot being aware of the collision constitutes a proper defense if the operator of the vehicle did not know or have reason to believe that he or she had collided with another vehicle.” 

Issue 2: Whether, on remand, the trial court may reweigh the evidence and render a new verdict?

Holding 2: Yes. The trial court made no findings as to whether appellant should have known he had been in an accident.

Dissent: No. The trial court’s findings reflect reasonable doubt as to the mens rea for the offense and should compel a verdict of acquittal. WC.