Struck down! District’s “Presence in a Motor Vehicle Containing a Firearm” (PMVCF) statute held unconstitutional on its face. Good precedent on the plain error standard, too.

Conley v. United States, No. 11-CF-589

(decided Sept. 26, 2013)

Players: Glickman, Thompson, Oberly.  Opinion by Judge Glickman.  Opinion concurring in the judgment by Judge Thompson.  Ian A. Williams for Mr. Conley, with PDS as amicus curiae.  Trial judge: Craig Iscoe.

Facts:  Antwaun Conley was pulled over in a traffic stop; there was one passenger in the car with him.  Police found a loaded handgun in the center console.  Mr. Conley was charged with and tried for four possessory offenses (felon-in-possession of a firearm, carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition), as well as the non-possessory offense of PMVCF, which makes it a felony for a person to be “voluntarily in a motor vehicle if that person knows that a firearm is in the vehicle, unless the firearm is being lawfully carried or lawfully transported.”  D.C. Code § 22-2511(a).  His defense at trial was that he neither possessed the gun nor knew that it was there, and that it must have been placed in the console by either his passenger or one of the police officers.  The jury acquitted him of all the possessory offenses but found him guilty of PMVCF.

Issue: Whether the District’s PMVCF law (D.C. Code § 22-2511) is constitutional.

Held:  The PMVCF statute is unconstitutional on its face and cannot be saved through statutory interpretation.  The law violates due process in two ways:  First, its affirmative defense provision, which requires the defendant to show that he intended to leave the vehicle upon learning of the firearm but did not have a “reasonable opportunity to do so,” § 22-2511(b), unconstitutionally places the burden of persuasion on an essential element—the defendant’s voluntary presence in the vehicle—onto the defendant.  Conley, Slip op. at 12-23.  Second, even if the statute were interpreted to require the government to prove that the defendant had a reasonable opportunity to leave the vehicle but chose to stay, it still violates due process because the average person would have no notice that merely being in a vehicle containing a gun is a felony offense.  Id. at 23-44 (relying on Lambert v. California, 355 U.S. 225 (1957)). 

Of note:

• The Court rejects the government’s argument that Conley waived his claim by failing to raise it as a defect in the indictment prior to trial pursuant to Criminal Rule 12(b)(2).  That rule does not apply when the appellant’s claim is that the statute creating the charged offense is unconstitutional.   Id. at 9-11.
• The Court reversed under plain error review.  (Conley’s trial lawyer did not object to the constitutionality of the PMVCF statute.)  Notably, the Court found the unconstitutionality of the statute to be “plain” even though there was no precedent directly on point, explaining that “the ‘plainness’ of the error can depend on well-settled legal principles as much as well-settled legal precedents.”  Id. at 45 (quoting United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003)).   

How to use:

• If you have a client charged with PMVCF, move to dismiss the indictment ASAP.  If you have a client on appeal who was convicted of PMVCF, move for summary reversal.  Nobody can be charged with PMVCF.  This statute is no more.  It has ceased to be.  Bereft of life.   Kicked the bucket.  Shuffled off its mortal coil.  This is an ex-statute.
•  Conley also has some other useful implications beyond striking down PMVCF:
• Heretofore, the DCCA had expressed doubt about whether one can bring a facial challenge outside the First Amendment context.  Conley demonstrates that facial challenges are not limited to the First Amendment.
• FOR APPELLATE PRACTITIONERS:  The government often tries to make “plainness,” the second prong of the plain error test, a much more exacting standard than it is—they argue that it requires a case with identical facts that decided the exact same legal issue.  Conley offers a strong rebuttal to that argument, as it makes clear that the plainness prong can be met so long as the underlying principle of law (in this case, Lambert) is well-established; its application to a new issue or factual context need not be.  CM

Two Big Holdings From One Arrest: Threats to MPD Property Don't Violate the Felony Threats Statute, and Jerking One's Elbow to Brush Off a Police Officer's Hand Isn't an APO

Ruffin v. United States, No. 12-CF-956 (decided Sept. 5, 2013)  

Players: Washington, Blackburne-Rigsby, Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS for Mr. Ruffin.  Trial judge:  Michael L. Rankin. 

Facts:  Officer Amaya was investigating a report of a burglary when he encountered Mr. Ruffin hopping over a retaining wall.  Mr. Ruffin looked “surprised” and “startled” when he turned and saw the police officer.  Officer Amaya immediately put his hands on Mr. Ruffin.  As he did so, his hand hit Mr. Ruffin’s shoulder.  Mr. Ruffin brushed the officer’s hand off his shoulder.  Officer Amaya further described Mr. Ruffin’s motion as “elbowing to the back with his right arm.”  Later, when told he was about to be placed in a police car, Mr. Ruffin warned, “You put me in there, I’m going to kick out the windows.”

Issue 1:  Does pulling one’s arm away from a police officer amount to “resistance” of the officer under the assault on a police officer (“APO”) statute?

Issue 2: Can a threat to destroy property owned by the District of Columbia constitute a felony threat?

Held on Issue 1: Mr. Ruffin’s minimal motion did not rise to the level of “active and oppositional conduct” required for a violation of the APO statute.

Held on Issue 2: The District is not a “person” within the meaning of the threats statute.  Therefore, a threat to property owned by the District is not encompassed by the statute.

Of Note on APO:

• Mr. Ruffin’s “discrete act of immediately pulling his arm away from Officer Amaya” did not amount to resistance of Officer Amaya. Ruffin, slip op. at 7.

• Mr. Ruffin’s act of pulling away can be distinguished from (1) hiding one’s hands and breaking free from a police officer’s grip by swinging one’s arm’s forward, (2) concealing one’s arms under one’s body and refusing to comply with police orders to show hands, and (3) holding a gate closed to prevent an officer from entering.  Id. at 9-10 (distinguishing In re J.S., 19 A.3d 328, 330 (D.C. 2011), Coghill v. United States, 982 A.2d 802, 807 (D.C. 2009), and Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008)).  

•  In contrast, Mr. Ruffin’s “ephemeral elbow jerk in response to a police officer reaching towards his shoulder did not amount to ‘resisting a police officer.”  Id. at 11. 

• The “APO statute does not criminalize every refusal to submit to a police officer or every prevention or hindrance of an officer in his duties.”  Id. at 11 (quoting J.S., 19 A.3d at 331).

Of Note on Felony Threats:

•   “[T]he context of the felony threats statute indicates that its use of ‘person’ is limited to natural persons, thereby excluding threats to property owned by artificial entities—particularly the District of Columbia[.]”  Id. at 30. 

• The Court rejected the government’s secondary argument that Mr. Ruffin violated the felony threat statute by threatening a vehicle in which Officer Pena had a possessory interest: “[O]wnership—not a property interest—is an element of the felony threats statute.  The felony threats statute does not protect victims with interests in, but not ownership of, the threatened property.”  Id. at 29.

How to Use:

In analyzing the APO statute, the Court emphasized that Mr. Ruffin was “surprised” and “startled” when he turned and saw Officer Amaya.  Id. at 3.  Under these circumstances, the government failed to show that Mr. Ruffin’s act of pulling away from Officer Amaya was anything other than a “mere reflex.”  Id. at 3.  The Court’s reasoning can be useful in a situation where a client has been taken by surprise and is reacting reflexively to being handled by police.

One Reckless Act? Beware a Decision on Merger -- Multiple Counts of Destruction of Property May Not Merge

 

Vines v. United States, No. 11-CF-843 

(amended opinion; original issued July 11, 2013)

Players:  Fisher, Easterly, King.  Opinion by Judge King.  Opinion concurring in part and dissenting in part by Judge Easterly.  Edward F.C. Gain, Jr. for Mr. Vines.  Trial judge:  William M. Jackson. 

Facts:   Mr. Vines was charged with a number of different crimes, for events surrounding two robberies committed on July 26, 2010, and a high-speed chase that occurred in the course of the police attempt to apprehend him on July 27, 2010.  The only issue of note in the opinion arises from the two counts of malicious destruction of property that were charged, which were based upon the two cars that were hit when Mr. Vine drove his SUV down the wrong side of the road near Washington Circle, colliding with two vehicles in an intersection. 

Issue:  Did the two counts of malicious destruction of property merge? 

Held:  Because the testimony established two distinct collisions with two separate vehicles and two separate victims, the two counts of malicious destruction of property did not merge. 

Of Note:

·         “That Vines committed a single reckless act does not control our analysis.”  Vines, slip op. at 11. 

·         “As to malicious destruction of property, we understand D.C. Code § 22-303 to contemplate a new offense for each new victim.”  Vines, slip op. at 12.

·         “Accordingly, we read § 22-303 as contemplating a separate offense as to the destruction of each separate victim’s property, rather than the destruction of ‘property’ in some more-general sense.”  Vines, slip op. at 13. 

·         The majority views its holding as consistent with Carter v. United States, 531 A.2d 956 (D.C. 1987), and Johnson v. United States, 883 A.2d 135, 144-45 (D.C. 2005), noting that in each of those cases, the damage to the two different vehicles “was clearly simultaneous,” and was not the result of “a separate incident,” as it was in Mr. Vines’s case.  Vines, slip op. at 15 n.10.

·         Judge Easterly dissented, contending the majority was wrong in its conclusion that the Council intended to protect individual property interests when it enacted the malicious destruction of property statute.  Vines, slip op. at 37.  She noted that the damage done to the two vehicles here resulted from one reckless act, during which Mr. Vines’s vehicle collided with two different cars.  In her view, because the record established no “fork in the road” whereby Mr. Vines could have avoided hitting the second car but chose not to do so, the counts should merge.  Vines, slip op. at 38.

How to Use:

It will be important to confine the holding of Vines to its facts, because the broad language used by the majority – taken out of context – could lead to absurd results, as the dissent notes.  See Vines, slip op. at 32 (“If a defendant recklessly collided with a car jointly owned by a married couple, he could receive two sentences for that single act; if he collided with a moving van carrying the property of twenty different individuals and that property was damaged, he could receive twenty sentences for that single act”).  The Vines majority places significant emphasis on the fact that the record, as it viewed it, suggested that there were two distinct collisions; it also believed its opinion to be consistent with Carter and Johnson, noting that the counts properly merged in those cases because the damage to different property interests occurred simultaneously.   In the future, the holding in Vines must be applied with these limitations in mind.  JF

New Limits on the Excited Utterance Hearsay Exception: Two Hours to Reflect? Then It's Not Excited

Castillo v. United States, 12-CM-161 (decided August 29, 2013)

Players:  Glickman, Oberly, Newman.  Opinion by Oberly.  PDS for Mr. Castillo.  Trial judge: Morrison.

Facts:  Mr. Castillo was accused of groping his teenaged stepdaughter, E.M.  Her brother, Francisco, called 911 at two o’clock on Christmas morning and calmly stated that he had seen “something inappropriate” between his sister and Mr. Castillo.  At trial, Francisco and E.M. both testified that they had been intoxicated and remembered little of the incident.  Two police officers, however, testified that after they responded to the scene, a distraught E.M. and Francisco each stated that Mr. Castillo had touched E.M.’s breast.  These reports were the sole basis for the trial court’s guilty verdict.

Issue:  Whether the trial court erred in admitting E.M. and Francisco’s reports of a touching under the excited utterance exception to the rule against hearsay.

Held:  The trial court erred in admitting the reports, since the government had failed to establish that that they were “‘made within a reasonably short period of time after the [exciting] occurrence so as to assure that the declarant[s] ha[d] not reflected upon [their] statement[s] or premeditated or constructed’” them.  Castillo, slip op. at 12-13 (quoting Odemns v. United States, 901 A.2d 770, 777 (D.C. 2006)).  Here, the alleged touching could have happened as early as midnight, and the officers did not arrive until after the 911 call, leaving a possible “two-hour time span, at least” between the exiting event and the siblings’ reports.  Id. at 16-17. 

Of Note:

• For a statement to qualify as an excited utterance, “there must be some evidence from which a finder of fact can reasonably infer that the statement was made within a reasonably short period of time after the startling event.”  Id. at 15. 

• The Court held that the “two-hour times span . . . [left] plenty of time for reflection,” and noted that it has “[r]arely, if ever, . . . upheld the admission of statements made more than one hour after the alleged incident, unless the declarant was a young child, or the incident was especially serious.”  Id. at 17 (citations omitted)

• “The seriousness of the startling event”—here, “a relatively minor assault”—“is relevant to the determination of whether the utterance occurred within a reasonably short period of time such that it was made spontaneously and without reflection.”  Id. at 18.

•  The Court noted that Francisco’s calm 911 call also indicated that his excitement when speaking to police was “more likely” caused by reflecting on the incident than by its “‘fresh emotional impact,’” as required for an excited utterance.  Id. at 20-21 (quoting In re L.L., 974 A.2d 859, 863 (D.C. 2009)).

How To Use:  Regardless of the declarant’s demeanor when making an inculpatory statement,  the statement cannot be admitted as an excited utterance unless the government establishes that it was made close enough in time to the exciting event that the declarant was unable to reflect—generally, within no more than one hour.  Even when the interval is less than one hour, defense counsel can argue against admission by emphasizing the relatively low severity of the exciting event and highlighting evidence that the declarant did calm down or reflect—however briefly—before making the proffered statement.  FT.