If he looks like a police officer, walks like a police officer, and quacks like a police officer … it’s not probable cause that he’s unlawfully impersonating a police officer. Plus a good holding on what constitutes a “dangerous weapon.”

Tuckson v. United States, No. 11-CF-522

(decided Oct. 3, 2013)

Players: Fisher, Thompson, Ruiz.  Opinion by Senior Judge Ruiz.  Dissent by Associate Judge Thompson.  PDS for Mr. Tuckson.  Trial judge: Gerald Fisher.

Facts: MPD officers saw Antione Tuckson driving a Chevy Impala that appeared “outfitted” to look like an unmarked police car, complete with dark windows, long antennas, and a “police-style dash light.”  He was also dressed in what the officers thought looked like an undercover police style – slacks, a button down shirt, and “thin gloves.”  After running his plates and determining that the car was not in fact a police vehicle, the officers stopped him and asked if he was a police officer; Tuckson answered that he was not.  The officer told him that he was parked illegally (in front of a fire hydrant) and that his window tint appeared to be illegal.  Tuckson refused to give consent for a search but handed over his keys so that the officers could conduct a window tint check.  An officer opened the driver’s side door and found a collapsible baton in the door pocket.  Officers then placed him under arrest for possessing a “prohibited weapon” and for “impersonating a police officer.”  In a search incident to arrest, police found a loaded handgun, “police handcuffs,” and an extra magazine under a jacket on the front passenger seat.  Tuckson was charged with three firearms possession offenses for the handgun and ammunition.  He moved to suppress the gun and ammunition on the ground that the police lacked probable cause to arrest him (and thus the gun and ammunition were the fruits of an unlawful arrest).

Issue 1:  Did police have probable cause to arrest Tuckson either for possessing a prohibited weapon (PPW) under D.C. Code § 22-4514(b) or carrying a dangerous weapon (CDW) under D.C. Code § 22-4504(a)?

Issue 2:  Did police have probable cause to arrest Tuckson for impersonating a police officer, in violation of D.C. Code § 22-1406?

Holding 1:  No.  The dispositive question is whether the collapsible baton qualifies as a “dangerous weapon.”  A collapsible baton is not listed as a per se prohibited weapon in either the PPW or CDW statutes, nor is it an “inherently dangerous” weapon, as its ordinary use and design is to help police control suspects without inflicting serious bodily injury.  Thus, to conclude that the baton was a “dangerous weapon” within the meaning of the PPW and CDW statutes, the court would have to find that Tuckson intended to use it as a dangerous weapon.  There was no probable cause to believe that he did – the baton was holstered and tucked away, and Tuckson never even touched it in their presence.  Thus, there was no reason to think it was anything more than “a prop to complete a hobbyist’s police officer costume.”

Holding 2:  No.  The crime of impersonating a police officer requires both that the individual falsely represent himself as a police officer and that he do so with fraudulent design.  Assuming without deciding that police had probable cause to believe that Tuckson was falsely representing himself as a police officer, there was no evidence that he had a “fraudulent design.”

Of note:                  

·         On the dangerous weapon issue, the Court emphasizes that it is not enough that Tuckson may have intended to use the baton to impersonate a police officer.  The phrase “unlawfully against another” in the PPW statute means that the person intends to use the object “as a weapon,” i.e., “to harm” someone.

·         On the impersonation issue, the Court rejects the government’s arguments that Tuckson could have had a “fraudulent design” to avoid punishment for either his illegal parking or his illegal tinting.  Tuckson made no attempt to get away with these acts or use his police officer guise to get an advantage, and the mere fact of his illegal parking and tinted windows was not enough to establish a fraudulent intent.

·         The Court also rejects the notion that probable cause can rest on a belief that the person is about to commit a crime.  Thus, even if there was reason to think that Tuckson later might have tried to use his police officer impersonation fraudulently, there was no probable cause that he was doing so at the moment the police officers saw him.

·         Notably, the Court “decline[d] to affirm” on the alternative ground that the “automobile exception” permitted the police to search Tuckson’s car because they had probable cause to believe it contained either contraband or evidence of a crime.  The trial court had not ruled on that ground, and the government never argued it; rather, it was raised for the first time by Judge Thompson at oral argument.  Moreover, it was “debatable” whether that exception applied – to find that it did, the Court would have to “endorse the generalization” that any person whose car is equipped to look like a police car “is likely to also carry guns or evidence of fraudulent intent.”  Slip op. at 22.  Judge Thompson dissented in part on this ground.

How to use:

·         Tuckson is useful for PPW/CDW cases involving objects that have non-weapon uses (e.g., steak knives, flowerpots), as it makes clear that, in such cases, the defendant’s intent is imperative – the government must prove that the person carrying the object intended to use it as a dangerous weapon.  It is not enough that the object could be used to inflict serious bodily injury; that must have actually been the person’s purpose in carrying it.  

·         FOR APPELLATE PRACTITIONERS:  Tuckson is a helpful case to cite if a judge proposes affirming your client’s conviction on a basis that the government never raised.  The Court explains that “considerations of good order, judicial efficiency, and respect for the proper role of institutional litigants . . . argue against our consideration of an argument that the government has not seen fit to present,” and that the Court should consider such an alternative ground only in the very rare circumstance in which its application is “beyond serious debate.”  Slip op. at 21.  CM

A Defendant’s Own “Extraordinary Efforts” Help Establish Good Cause for Filing a Motion To Recall the Mandate Out of Time

Long v. United States, Nos. 98-CF-1088, 98-CF-1425 & 04-CO-1503 (decided October 24, 2013)

Players:  Glickman, Belson, Schwelb.  Opinion by Senior Judge Belson.  Sydney J. Hoffman for Mr. Long.  Trial judge:  Nan R. Shuker.

Facts:  This case concerns a motion to recall a mandate issued in 2006, and has a long procedural history.  Mr. Long was convicted in 1998 of first-degree premeditated murder and related charges.  According to proper procedures at the time, he was sentenced to life in prison without parole based on a finding by the trial judge that three aggravating factors existed:  1) that the murder was especially heinous, atrocious or cruel; 2) that the victim was especially vulnerable due to age; and 3) that the murder was committed after substantial planning.

Mr. Long appealed his conviction and also filed a 23-110 motion to vacate his conviction on grounds of ineffective assistance of counsel.  While his appeal was pending, sentencing law changed dramatically with a number of Supreme Court decisions beginning with Apprendi.  In light of these cases, the DCCA held that criminal defendants are entitled to a jury trial on the aggravating factors that determine eligibility for LWOP and reviewed pre-Apprendi LWOP sentences for plain error, Keels v. United States, 785 A.2d 672 (D.C. 2001), reversing and remanding several cases for resentencing.

Mr. Long began trying to invoke the Apprendi line of cases in 2001.  In April of 2001, he wrote to his attorney on direct appeal (Lawyer #1) and brought Apprendi to his attention, but the lawyer did not raise an Apprendi issue in the appeal.  In July of 2004, Mr. Long filed a pro se Rule 35(a) motion to correct his sentence, citing Apprendi.  The trial court denied the motion and no appeal was noticed.  In May of 2005, Lawyer #1 filed an appeal from the summary denial of Mr. Long’s 23-110 motion, again failing to cite either Apprendi or Keels.  That appeal was consolidated with Mr. Long’s direct appeal.  In November of 2006, the DCCA affirmed the convictions but remanded for a hearing on the 23-110 motion.  A new lawyer (Lawyer #2) was appointed for the remand.    

In April of 2008, Lawyer #2 filed a Renewed Motion for Correction of Sentence,” referring back to Mr. Long’s pro se Rule 35 filing, and cited Apprendi and related cases.  The filing stated that Lawyer #1 should have raised an Apprendi issue, but did not.  The government’s opposition in June of 2008 noted that any claim of ineffective assistance by appellate counsel should be litigated in a motion to recall the mandate.  Lawyer #2’s motion was denied by the trial court as procedurally barred.  A new lawyer (Lawyer #3) was appointed in January of 2009, and handled the appeal from the denial of the post-hearing 23-110.

In February of 2012, the DCCA affirmed the denial of the 23-110, stating that Mr. Long could have pursued his Apprendi claim on direct appeal.  The next month, in March of 2012, Lawyer #3 filed the motion to recall the mandate that is the subject of this appeal.  The motion argued that Mr. Long was denied effective assistance of counsel when Lawyer #1 failed to raise an Apprendi claim on direct appeal.  The motion to recall the mandate was filed more than 180 days after the mandate issued, the time period permitted by D.C. App. R. 41(f).   

Issue 1:  Did the appellant establish “good cause” for the DCCA to exercise its authority under D.C. App. R. 26(b) to extend the time prescribed by Rule 41(f) for filing a motion to recall the mandate?

Issue 2:  Did appellate counsel provide ineffective assistance by failing to raise an Apprendi claim?

Holding 1:  Yes.  Appellant’s own “extraordinary efforts” to bring an Apprendi claim warranted an exception to the time period set out in Rule 41(f) for motions to recall the mandate, where counsel’s failure to file a motion to recall the mandate at an earlier time was contrary to an “implicit duty.”

Holding 2:  Counsel on direct appeal (Lawyer #1) provided ineffective assistance by failing to raise an Apprendi challenge to the procedures used to sentence Mr. Long to LWOP.  Remand for resentencing was required because the DCCA could not determine that the jury would have reached the same decision as the trial judge on whether the murder was especially heinous, atrocious or cruel, one of the three aggravating factors that served as the basis for the LWOP sentence. 

Of Note:

• Noting that ordinarily counsel’s mistake of law or lack of due diligence “will not excuse a failure to comply with court rules,” the DCCA invokes an exception in this case “for exceptional cases where an attorney’s conduct was so plainly contrary to ‘his express instructions or his implicit duty to devote reasonable efforts in representing his client, provided that the client himself is diligent in pursuing the claim.’”  Slip op. at 13 (quoting Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 (D.C. 1985)).
• It also notes that the government failed to identify any prejudice as a result of the delay in filing the motion to recall the mandate.
• The court deviates from ordinary procedures by ruling on the merits of Mr. Long’s IAC    claim in the same opinion where it grants the motion to recall the mandate, explaining that this “streamlined approach” is appropriate because “a ruling on one is essentially a decision on the other.”  Slip op. at 16 note 13.
• In analyzing whether the jury would have found beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel if that aggravating factor had been properly submitted to it, the DCCA concluded that “reasonable minds could well have disagree about whether this murder was ‘especially heinous, atrocious, or cruel,’ a standard that requires a conclusion that this murder was worse than most first-degree premeditated murders.”  Slip op. at 21.  Surveying the evidence, the court observed that   the killing was “not committed at random against an unsuspecting member of the community, but rather in revenge against the perpetrator of an earlier crime who may have acted as though he was armed at the time of the shooting.”  Id. at 25.  It also was not “just for . . . fun” and did not involve torture or “gratuitous suffering.”  Id.
• In an extensive footnote, the DCCA comments on the trial court’s reliance at sentencing on Mr. Long’s suppressed confession, observing that although at the time of sentencing it was permissible for the judge to consider evidence suppressed at trial, “we are doubtful that the general inapplicability of the exclusionary rule at sentencing still holds when the sentencing hearing is actually being conducted to prove defendant’s guilt of what are, functionally, elements of a crime.”  Slip op. at 26-27 note 16.

How To Use: 

Long is useful primarily for its analysis in permitting Mr. Long to file his motion to recall the mandate out of time, as it shows that a defendant’s own actions in trying to bring an issue to counsel’s attention can go a long way towards establishing good cause for extending the time period prescribed by rule.  It may also offer some guidance about the applicability of the “especially heinous, atrocious, or cruel” aggravating factor, though it stops short of offering a more explicit definition of its scope.  MW.

The Right To Be Present at Voir Dire Includes a Right To Observe Potential Jurors, Not Just Hear What They Say

Hager & Davis v. United States, Nos. 09-CF-1405, 10-CF-65, 10-CF-66 & 10-CF-67

Players:  Glickman, Oberly, Reid.  Opinion by Judge Oberly.  Bruce A. Johnson, Jr., for Mr. Hager.  Jenifer Wicks for Mr. Davis.  Trial judge:  Gregory Jackson.

Facts:  Before voir dire began at a joint robbery trial, Mr. Davis’s counsel asked the trial judge “if we can pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”  The trial judge responded that he could instead provide headsets “so that Mr. Davis and, if necessary, Mr. Hager, can hear everything that goes on.”  Mr. Davis’s counsel answered that she “would rather be able to consult with him during it, but headsets is better than nothing.”  The judge countered that “if we have to go to the jury room it will slow us way down,” and ordered the headsets. 

The voir dire was conducted at the bench without the defendants, and “the record is thin” on what the defendants were able to see.  The government conceded at oral argument that “at best, it was ‘possible’” that Mr. Davis might have been able to see the sides of jurors’ faces at the bench, and their full faces as they walked away from the bench after voir dire. 

Initial tests of the headsets before individual voir dire revealed that they were not working properly, but the court moved on with voir dire, apparently without waiting for the problem to be fixed.  Mr. Davis’s counsel pointed out “at least once more during voir dire” that the defendants were having trouble hearing.    

Issue:  Did the trial court violate Mr. Davis's right under the Fifth and Sixth Amendments and Superior Court Criminal Rule 43(a) to be present at his own criminal proceeding by denying his request to be present at the bench during voir dire?

Held:  Yes.  It was constitutional error to conduct voir dire in a manner that prevented the defendant from reasonably observing potential jurors during questioning.

Of Note: 

Error:

• The court emphasizes that the problem here was that Mr. Davis was not able to see the jurors while they were at the bench.  The right to be present at voir dire “extends not only to the defendant’s ability to hear the responses that jurors give, but also to reasonably view their demeanor during those responses in order to assess their various qualities as jurors and make decisions about whether to exercise challenges.  Otherwise, the defendant’s right to ‘observe’ voir dire would be rendered meaningless.”  Slip op. at 14. 
• Thus, although the faulty headphones compounded the error, they were not the primary problem.
• Given the thin record about what Mr. Davis could actually see during voir dire, as well as the government’s concessions at oral argument, the DCCA found it “reasonable . . . to assume that from Davis’s position while sitting at counsel table the jurors were turned away from him and his primary view during voir dire would have been of their backs.” Slip op. at 14-15.
• There were no extenuating circumstances such as security concerns that might have justified the denial of Mr. Davis’s request to be present.

Harm:

• “[T]he best view of whether the error was harmless looks at the degree to which the error impacted the defendant’s ability to meaningfully participate in the voir dire,” rather than the strength of the government’s case.  Slip op. at 16 note 8.
• The harm analysis “does not focus on the significance of the jurors’ answers,” because it   is “where the juror seems uncontroversial, but where the defendant desires to exercise his right ‘to express an arbitrary preference,’ in which the defendant’s presence is needed most greatly.”  Slip op. at 16 note 8.

Preservation:

• The defense must assert the right to be present at the bench for voir dire, and a failure to assert the right constitutes a waiver.
• Mr. Davis’s counsel sufficiently asserted his right to be present and preserved the issue for appeal by asking to “pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”
• Although there were some ambiguities in the ensuing colloquy between counsel and the court, the trial judge had a responsibility to determine whether Mr. Davis “interpreted his comment as a denial or was intentionally relinquishing the right he had clearly asserted only seconds before,” slip op. at 12, and the judge “made no effort to assume this responsibility.”
• Mr. Hager did not assert his right to be present and therefore waived the issue for purposes of appeal.

How To Use:

Hager makes clear that the right to be present at voir dire is not merely a right to hear what jurors are saying.  If a defendant makes a request to be present at the bench for voir dire—or, as in this case, to conduct voir dire “in the back” in anticipation that it would be too crowded at the bench—it is not an adequate response for the court to offer headphones.  It is critical to assert the right to be present during voir dire, however, and it does not take much to do so.  Mr. Hager did not assert his right, and as a result he does not benefit from the court’s decision.  MW. 

Read Hager and Davis v. United States 

When does collateral estoppel bar the government from introducing evidence at a retrial?

Thomas v. United States, No. 11-CF-412 (decided October 24, 2013)

Players:  Washington, Glickman, Pryor.  Opinion by Chief Judge Washington.  Alice Wang, Monica Douglas, and James Klein for Mr. Thomas.  Trial judges:  Ronna L. Beck and Anthony C. Epstein.

Facts:  The government alleged that Mr. Thomas assaulted Chauncey Thomas by grabbing him and pulling out a gun, which he raised over his head.  A struggle over the gun followed, and Mr. Thomas was shot in the hand.  Mr. Thomas was charged with ADW, PFCV, felon in possession, CPWL, and UA.  The judge agreed to bifurcate the trial on the FIP count, and the jury went on to acquit Mr. Thomas of ADW and PFCV.  It hung on CPWL and UA, however, and the trial judge granted a mistrial on those counts, as well as on FIP.  The government later dismissed the CPWL count. 

Before his second trial on FIP and UA, Mr. Thomas argued that because he had been acquitted of ADW, the government was collaterally estopped from retrying him on FIP at all, or, in the alternative, from introducing evidence of assault at an FIP trial.  According to Mr. Thomas, the jury’s verdict at the first trial showed that it had found either that he did not have a gun at all, or that he did not pull out a gun during the confrontation.  The trial court rejected the argument and Mr. Thomas was convicted of FIP and UA.

Issue 1:  Was the government collaterally estopped from retrying Mr. Thomas for FIP, where a previous jury had acquitted him of an ADW charge arising from the same facts?

Issue 2:  Was the government collaterally estopped from introducing evidence of an assault in an FIP trial, given the previous acquittal for ADW? 

Held:  It was improper for the government to use evidence at the FIP trial that Mr. Thomas pulled out a gun, because the first jury’s verdict necessarily indicated that the jury had found that he did not pull out a gun.  The court did not explicitly address the argument that the government was estopped from retrying the FIP count.  The case was remanded for a new trial on FIP. 

Of Note:  The question whether an issue of ultimate fact has already “been determined by a valid and final judgment,” such that collateral estoppel prevents its relitigation in a subsequent trial, is a case-specific inquiry that takes into account the evidence, argument, and jury instructions at the first proceeding.  The court noted, for instance, that the government had argued at the first trial that an assault occurs “[i]f someone grabs your jacket and pulls out a gun.” 

How To Use:  Although the opinion lacks an extensive explanation of its reasoning, Thomas may be helpful in cases where evidence relating to acquitted conduct would be central to the government’s case at a subsequent trial on related charges.  MW.   

A self defense reminder.

Ewell v. United States, 11-CM-1593 (decided Sept. 5, 2013)

Players: Blackburne-Rigsby, Oberly, Ferren.  Opinion by Judge Blackburne-Rigsby.  Donald L. Dworsky for Mr. Ewell. Trial judge: Yvonne Williams. 

Facts: In this simple assault bench trial, the Court reversed and remanded for the trial judge to apply correct self-defense standards.  The trial court found that the complainant, a woman much smaller than the defendant, started a fight by throwing a hard cup full of vodka at the defendant, causing him to bleed, and that he responded by striking her one time.  The trial court found the defendant guilty of simple assault, ruling that his actions did not represent a proper use of self defense. 

Issue 1: Whether a defendant loses the benefit of a self-defense claim when he used more force than the minimum necessary in the situation.

Issue 2: Whether a defendant who uses non-deadly force in self defense must perceive a threat of imminent “serious” bodily harm.

Holding 1: No.  The correct legal question is whether the use of force was “disproportionate to the initial aggression faced.”

Holding 2: No.  The correct legal question is whether the defendant believed that he was in imminent danger of bodily harm—not imminent danger of serious bodily harm.

Of Note: It is improper for a judge in a self-defense case to focus on whether the defendant could have responded to the aggression of another person by employing less force or seeking an alternative resolution.  The focus, instead, is on whether the defendant’s use of force was “disproportionate to the initial aggression faced.”  If the use of force was not disproportionate, then it is acceptable under the law of self defense, even if the defendant could have used less force or resolved the situation without the use of force.

How to use: Ewell is helpful for self-defense cases because it makes clear that self-defense law is governed by simple and clear legal rules, and it is not an opportunity for a trial judge to impose her own view of whether the defendant handled a violent situation in the most appropriate or least violent manner possible. 

Juror who dissented early during the jury poll was not coerced into later agreeing with the verdict.

Leake v.United States, No. 11-CF-0554

(decided Oct. 17, 2013)

Players: Glickman, Blackburne-Rigsby, Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS and Jenner & Block for Mr. Leake.  Trial judge: Anthony C. Epstein.

Facts:  Robert Leake was charged with several gun-and-ammunition possession offenses.  Toward the end of the first full day of jury deliberations, the jury announced it had reached a verdict.  But when the court polled the jury, asking each juror if he agreed with the verdict, Juror Three answered “Sort of yes — I mean, no.  Not too much.”  The judge terminated the poll and told the jury, “I’m going to return the verdict form to the foreperson and I’m going to ask you to resume your deliberations and let me know when you’ve reached a verdict or if you have any questions.”  Defense counsel moved for a mistrial, citing the risk of Juror Three being coerced into going along with the verdict, especially since that juror had expressed concerns during jury selection about problems finding childcare while he was serving.  The trial judge denied the motion.  After about 30–40 minutes of additional deliberations, the jury again stated it head reached a verdict, and this time there was no dissent.

Issue: Whether it was impermissibly coercive to send the jury back for additional deliberations, without further instruction, after the third juror registered his dissent during the jury poll.

Held:  There was not undue coercion in this case.  The potential for coercion is minimal when a juror reveals his dissent early in the polling because other jurors have not yet revealed their own positions.  Here, the dissenting juror went third, so most of the other jurors had not yet been polled and the court terminated the poll right away.  Although the trial judge observed that the split was “probably eleven to one,” he did so after the jury had left the courtroom, and thus the dissenting juror was unaware that the judge believed he was the lone dissenter.  The trial judge’s instruction after terminating the poll — sending the jury back for further deliberations without additional comment — was neutral.  The judge did not tell the jurors they had to reach a unanimous verdict because he also told them they could come back with questions.  The trial judge also had the opportunity to observe Juror Three’s demeanor during the second poll, in which the juror agreed with the verdict, and found that he “didn’t seem to be equivocal.”  And the trial judge reasonably concluded that the additional 30 minutes or so of deliberations was enough time for the jurors to have talked things through.  Though a Crowder instruction — which tells the jury to remain faithful to their honest convictions — could have reduced the coercive potential, it was not required because the potential for juror coercion was only “nominal.”  

Of note:

·         The Court mentions the dissenting juror’s childcare concerns in the facts section of the opinion, but it doesn’t figure into the Court’s analysis of the coercive potential.  The breakdown in the jury poll happened as the deliberations for the day were close to winding down.  By quickly going along with the majority verdict, the dissenting juror ensured he would not have to come back the next day and thereby avoided any additional problems finding childcare.  Doesn’t that circumstance add significantly to whatever other pressure he might have felt to go along with the verdict?  It’s strange for the Court to just ignore this fact.

·         The Court’s ruling turns largely on the fact that the dissenting juror went early on in the poll, and the Court’s ruling in this regard is grounded in precedent.  But the polling order is an odd thing to focus on, since all of the reasons the Court has given for why a lone dissenting juror might feel coerced seem to be present even when many jurors have not been polled.  Certainly, though the exact division of the jury isn’t technically known, it seems pretty obvious that the split is probably 11-1, as the trial judge here figured.  After all, if the jury has gotten to the point where it announces it has reached a verdict, then everyone is supposed to be on board.  From the dissenting juror’s perspective, which is it what matters, he has every reason to think that the judge believes he is the sole holdout.  So most of the indicators of jury coercion the Court has identified — the dissenter’s identity has been revealed in open court, the division of the jury is known, the judge knows who the dissenter is, the dissenter knows the judge knows who he is, and the other jurors feel bound by the verdict they have announced — are present at least to some degree no matter when during the poll a juror dissents.

·         The Court finds the trial judge’s instruction neutral because he gave them the option of asking questions.  But he also told the jurors to let him know “when” they reached a verdict — not if they could.  And he said nothing to the jurors about the importance of not surrendering an honest conviction just to get a unanimous verdict.  This sounds like a recipe for a juror with childcare problems who thinks he’s going to be there forever unless he goes along with the other jurors’ verdict to feel pretty coerced.  The opportunity to ask questions wouldn’t change that. 

How to use:

·         When a juror dissents during the jury poll, keep the order of the poll in mind.  If a juror happens to dissent toward the end of the poll, then you’ve got an issue; but if a juror dissents early on during the poll, then it probably won’t matter on appeal unless the judge does something stupid to exacerbate the situation.  DG.

Admitting testimonial hearsay violates the Confrontation Clause, even if offered solely as the basis for the opinion of an expert witness.

Carrington v. District of Columbia, No. 11-CT-698

(decided Oct. 17, 2013)

Players: Washington, Thompson, Newman.  Opinion by Chief Judge Washington.  Jeffrey L. Light for Mr. Carrington.  Trial judge: Marisa Demeo.

Facts:  Derrick Carrington was spotted by police officers driving “very slow with little control.”  When the officers activated their emergency lights, Mr. Carrington rolled through a stop sign, turned left into oncoming traffic, made a u-turn into more oncoming traffic, and then hit the curb and stopped.  When the officers approached, Mr. Carrington was confused by their orders, couldn’t put his car in park, couldn’t get out of the car, stand up, or walk without help, had slurred speech, dilated pupils, and was laughing the whole time.  He also failed three field sobriety tests.  However, the officers didn’t smell any alcohol (or any other drug) and, back at the station, a breath alcohol test registered a perfectly clean .000.  Suspecting that Mr. Carrington had taken PCP, the police got a urine sample and sent it off for tests.  The test results were positive for PCP and THC.  Mr. Carrington was charged with DUI.  At trial, the government called Lucas Zarwell as an expert witness to testify about the urine testing.   The problem was that Zarwell did not actually perform or observe the lab work and based his testimony off a review of the lab report and other paperwork.  The trial judge allowed Zarwell’s testimony over the defense’s Confrontation-Clause objection, explaining that she was admitting Zarwell’s testimony about the content of the lab report not for its truth, but as the basis for Zarwell’s opinion that Mr. Carrington was under the influence of PCP.  The judge, in a bench trial, found Mr. Carrington guilty of DUI, and added that she found the evidence convincing beyond a reasonable doubt even without Zarwell’s testimony.

Issue: Whether admitting testimonial hearsay for the purportedly limited purpose of providing a basis for an expert’s opinion violates the Confrontation Clause.

Held:  Admitting Zarwell’s testimony about the test results violated the Confrontation Clause, but the error was harmless.  Under the DCCA’s recent decision in Young v. United States, 63 A.3d 1033 (D.C. 2013), Zarwell’s testimony about the urine test was testimonial hearsay because it satisfied both the “evidentiary-purpose” and “targeted-accusation” tests developed by different groups of Supreme Court Justices in Williams v. Illinois, 132 S. Ct. 2221 (2012).  Admitting this testimonial hearsay, even for the limited purpose of establishing a basis for an expert opinion, violates the Confrontation Clause.  The factfinder necessarily must evaluate the truth of the basis for an expert’s opinion in order to evaluate the opinion itself.  Thus, the utility of the testimonial hearsay is dependent on its truth despite the purportedly “limited” purpose for its admission.  However, the error in this case was harmless because (1) the DUI statute did not require the government to prove that Mr. Carrington was under the influence of any specific drug; (2) while juries may reasonably doubt a defendant’s guilt when the government doesn’t introduce scientific evidence that the jurors expect to see, this was a bench trial; and (3) Mr. Carrington’s behavior on the night of his arrest showed his “obviously impaired condition.”

Of note:

·         The Court opens its opinion by explaining that the Confrontation-Clause issue “is worthy of a published opinion given the frequency with which it has appeared before this court.”  The Court doesn’t think this is a difficult issue, but a lot of trial judges are getting it wrong.

·         Although the trial judge expressly stated that the government had met its burden of proof even without the disputed expert testimony, that doesn’t factor into the Court’s harm analysis at all.

·         While the Court’s Confrontation-Clause analysis is pretty straightforward, its harm analysis is more controversial. 

o    Though Mr. Carrington’s behavior as described by the Court makes it seem pretty clear he was high, a reasonable factfinder might have wondered whether he had a medical condition, e.g., a stroke.  Though the Court notes that Mr. Carrington never complained about a medical condition, that hardly proves he did not have one (a person who has just suffered a stroke probably wouldn’t be in a position to point out he has just suffered a stroke).  The urine test, however, pretty much eliminated any doubt that Mr. Carrington’s behavior was the result of anything other than his drug use.  For that reason, it was a critical piece of evidence even if the government’s remaining evidence was strong.

o    The Court draws a poorly reasoned distinction between the importance of lab tests in DUI cases and drug-possession cases, premised on the fact that the type of drug at issue matters only in the latter.  The urine test in this case mattered not because it showed Mr. Carrington was high on PCP, but because it showed he was high on something.  The Court also overstates the importance of lab reports in drug-possession cases.  A DEA-7 report isn’t “necessary” in those cases because the government can prove the chemical nature of a controlled substance through circumstantial evidence.  A case like Duvall v. United States, 975 A.2d 839 (D.C. 2009), shows that even when there is pretty strong circumstantial evidence that a person possessed a specific controlled substance, admitting a DEA-7 report is not harmless error.  And even for a charge of attempted possession of a controlled substance, where the government does not have to prove that what the defendant tried to possess actually was a specific drug, the Court has held that a DEA-7 report was harmful.  See, e.g., Washington v. United States, 965 A.2d 35, 43–44 (D.C. 2009). 

o    The distinction the Court draws between the importance of scientific evidence in jury trials and bench trials is troubling.  If a jury might reasonably doubt the government’s case if the government doesn’t offer the type of scientific evidence that is commonly and reasonably expected, then why shouldn’t a judge do the same?  Indeed, the very case the Court cites for this point — Duvall — was a bench trial where the Court held that a DEA-7 report was harmful. The Court seems to be saying that trial judges are more willing to give the government the benefit of the doubt than juries so it’s harder to show harm in a bench trial.

How to use:

·         The Court is making it very clear that if the government wants to introduce scientific evidence — DNA tests, urinalysis tests, DEA-7 reports, etc. — it has to have the people who actually performed or observed the tests testify and be subject to cross-examination.  The government cannot sneak this evidence in by offering it as the basis for expert testimony instead of for its “truth.”

·         For appellate practitioners, the Court’s harm analysis suggests that it will be harder to show harm when scientific evidence is erroneously admitted in a bench trial rather than a jury trial.  DG

Furtive or not furtive? That is the question. Good Fourth Amendment decision – Drunk man’s chest-level hand gestures and unresponsiveness to the question “do you have a gun?” did not provide reasonable articulable suspicion that he was armed and dangerous

Robinson v. United States, No. 12-CF-1223

(decided Sept. 26, 2013)

Players:  Beckwith, Easterly, Ferren.  Opinion by Judge Easterly.  Susan E. Borecki for Mr. Robinson.  Motions judge:  Stuart Nash.

Facts:  Officers from the MPD “Gun Recovery Unit” approached Mr. Robinson as he was standing next to a parked car in a parking lot.  It was 8:30 p.m., and Mr. Robinson was quite obviously drunk, holding an empty vodka bottle, unable to stand in one place, and verbally non-responsive.  An officer asked him if he had a gun—“not because he had any suspicion that [Mr. Robinson] did” but because, as a member of the Gun Recovery Unit, he “put this question to everyone he encountered out on patrol.”  Robinson, slip op. at 9, 19.  Mr. Robinson again did not respond; he did, however, bring “both of his hands up to his chest,” where he moved them “back and forth” or “side to side.”  Id. at 7.  The officer testified that this movement, combined with Mr. Robinson’s non-responsiveness, made him think that Mr. Robinson might have a gun.  Officers then bear hugged him, grabbed his wrists, patted him down, and handcuffed him, at which point they found a small gun in the breast pocket of his coat.  Although the officers “ostensibly searched Mr. Robinson for their own protection,” they left the handgun in his pocket so that the crime scene technicians could take a picture of it for trial.  Id. at 8, 23.

Mr. Robinson moved to suppress the gun and his subsequent statements as the fruits of an unlawful “protective patdown” under Terry v. Ohio, 392 U.S. 1 (1968), arguing that the officers lacked reasonable, articulable suspicion that he was armed and dangerous.  Although the motions judge deemed it “a very close case,” he found that Mr. Robinson’s hand gestures, made after the officer asked if he had a gun, were sufficient to give the officers reasonable articulable suspicion that he had a weapon.  Robinson, slip op. at 11.

Issue:  Did the officers have “reasonable, articulable suspicion” that Mr. Robinson was “armed and dangerous” sufficient to justify their “protective patdown” under the Fourth Amendment?

Held:  No.  “Where Mr. Robinson appeared to be intoxicated and the officers had no reason to suspect him of wrongdoing before their interaction, his back-and-forth, side-to-side hand motions, made after he was confronted by four police officers and asked if he had a gun, coupled with his silence and his presence in a high crime area did not give rise to an objective, particularized suspicion that [he] was armed and dangerous.”  Id. at 26.

Of note:

• Mr. Robinson’s hand gestures alone were not inherently suspicious.  The fact that he made them after the officer asked if he had a gun did not make them suspicious either. Nothing about the gestures “signaled a physical admission” or “concealment of a guilty fact,” and the fact that he was obviously impaired suggested that they were simply “the vague or uncontrolled gestures of an intoxicated individual.”  Id. at 20-21.
• The fact that Mr. Robinson did not verbally respond to the question “do you have a gun?” did not give rise to a reasonable suspicion that he was armed, given that (a) citizens have no legal duty to speak to police, and (b) he was clearly intoxicated and hadn’t responded to any of the officers’ questions.  Id. at 21-22
• The fact that the officers left the gun in Mr. Robinson’s pocket “to create better evidence against him in any criminal prosecution” suggests that they had neither an objective nor a subjective basis to feel any concern for their safety.  Id. at 23.
• The fact that Mr. Robinson was standing in a “high crime area” did not give rise to a “particularized, individualized suspicion” that he had a gun.  Id. at 25.

How to use: 

• Robinson is very useful for cases in which the police claim that their reasonable suspicion was based on “furtive gestures.”  The Court rejects the government’s characterization of Mr. Robinson’s gestures as “furtive,” given that they weren’t particularly stealthy.  The Court also doesn’t put much stock in the police officer’s subjective statement that he perceived Mr. Robinson’s movements as furtive, explaining that the officer’s “mission” –looking for guns – may have “clouded his perception of what he saw.”  Id. at 22.  This notion of “mission bias” can be a useful counterweight when police officers claim they perceive your client’s ambiguous / innocuous movements as “suspicious” or “furtive.”
• Robinson is also a good case to cite when your client was arrested in a high crime area  and/or when he does not respond to police questioning, as the court held that neither fact supported a reasonable articulable suspicion that Mr. Robinson had a weapon.  CM