There’s more than one reason to run from the police.

Vernon Headspeth v. United States, No. 11-CF-1669 (decided March 13, 2014)

Players:  Judges Blackburne-Rigsby, Thompson, and Ruiz.  Opinion by Judge Thompson.  PDS for appellant.  Trial Judge:  William M. Jackson.

Facts:  Brandon Jennings was shot on December 2, 2010.  He survived the shooting, and testified that Mr. Headspeth, his frequent marijuana dealer, had shot him during the course of an unsuccessful robbery attempt.  After Mr. Jennings identified Mr. Headspeth shortly after the shooting, the police obtained an arrest warrant.  On December 17, 2010, Officer Matthew King saw Mr. Headspeth, whom he knew, outside a building.  Officer King, who verified that the arrest warrant was outstanding, followed Mr. Headspeth inside the building and started to detain him.  Mr. Headspeth pulled away and tried to run out the door.  Officer King grabbed Mr. Headspeth’s jacket, and Mr. Headspeth “kind of roll[ed] out of his jacket,” causing both men to fall.  Mr. Headspeth was then arrested.

The government requested a jury instruction regarding an arrestee’s flight, i.e., that the jury may infer from Mr. Headspeth’s flight that he was conscious of his guilt of the charged offenses.  Defense counsel opposed the instruction on a number of grounds, including that there were facts not before the jury showing that Mr. Headspeth and Officer King had a history.  Specifically, Officer King had arrested Mr. Headspeth in 2009 or 2010 for threatening him and Mr. Headspeth had been acquitted of that charge, and Officer King had arrested Mr. Headspeth a second time for violating a court order.  The trial court gave the requested flight instruction, reasoning that it was “not really a very powerful instruction” and it was “reasonably balanced.”

Issue:  Did the trial court err in giving a flight instruction where the jury was unaware of evidence that tended to show that the defendant may have attempted to flee for reasons other than his consciousness of guilt of the charged offenses? 

Holding:  The trial court abused its discretion in giving the flight instruction.  It is not necessarily error to give the flight instruction just because the defendant’s conduct might be explained by reasons other than consciousness of guilt because the flight instruction tells jurors that flight may be motivated by a variety of factors that are consistent with innocence.  But in this case, the jury was unaware of evidence regarding the history between Officer King and Mr. Headspeth.  The jury would therefore have no reason to consider whether that history, rather than consciousness of guilt, explained Mr. Headspeth’s attempted flight.  A trial court may not give a flight instruction when evidence not before the jury suggests a reason for the flight other than consciousness of guilt of the crimes charged and “there is no reason to think that the jury would envision that other reason.”  The erroneous flight instruction was not harmless because the government’s two eyewitnesses had credibility problems, the government’s motive theory was weak, and there was no physical evidence linking Mr. Headspeth to the shooting.

Of note:  Though the holding is somewhat narrow, the opinion hints at a broader hostility toward instructions that tell the jury what inferences they may infer from particular types of evidence. The court cautioned that the flight instruction should be given “sparingly” and warned that the jury will give great weight to the trial judge’s instructions about permissible inferences.   In addition to the flight instruction, the category of “permissible inference” instructions includes the standard jury instructions regarding change of appearance, suppression or fabrication of evidence, the failure to cooperate during an identification procedure, and possession of recently stolen property.  These instructions are anachronistic (dating back to a time when juries were not trusted to sort through evidence on their own and judges were permitted to comment on the evidence) and a growing number of jurisdictions have gotten rid of them.  It may be worth arguing this when objecting to these instructions in order to preserve the issue for appeal.  DG.

Read the full opinion here.

Is the emergency ongoing? Two judges say "yes" and one says "no," where the police interrupt a domestic dispute, separate the parties, and ask the complainant "what happened?"

Gary Frye v. United States, No. 12-CM-1438 (decided March 13, 2014)

The Players: Judges Thompson, Easterly, and Farrell.  Opinion by Judge Farrell.  Dissent by  Judge Easterly.  Andrew Murnane for Appellant. Trial Judge: Judge Nash.

The Facts:  Responding to a 911 call, police arrived at a home on Texas Ave., S.E. to find Jewel Parker and Gary Frye arguing at the top of a stair case.   Officers immediately separated the two and placed them in different bedrooms.  When police asked Parker “what [had] happened,” she stated that the two were arguing over Frye’s use of PCP, that she locked herself in a room where she “felt safe,” and that Frye then kicked the door in, grabbed her, shoved her into the floor, and tried to choke her. According to the police, Parker was extremely upset during the interview, was “shaking . . . and . . . crying,” and seemed to need medical attention.

Frye was tried in a bench trial before the Honorable Stuart Nash. Parker did not testify at trial.  Over defense objection, the government introduced the statement Parker made to the police.  At the close of trial, Judge Nash found Frye guilty of simple assault.

Issue: Did the admission of Parker’s statement violate Frye’s Sixth Amendment right to confrontation?

Holding: No. 

The Court held that Parker’s statements were nontestimonial because they were made to help the police meet an “on-going emergency” and not with the primary purpose of producing evidence to be used against Frye at trial.  The Court noted that when officers arrived on the scene, they did not know what happened, saw two individuals fighting, and faced a “fluid and somewhat confused” situation about which they knew almost nothing.  When the officers asked Parker “what happened,” they were concerned with securing the “volatile” situation, not with obtaining evidence.  And when Parker answered them, she was “appeal[ing] for safety,” not trying to “establish facts for an eventual prosecution.”

The Court acknowledged that police had separated Parker and Frye when they questioned her,  a fact significant to the Supreme Court in Hammon v. Indiana.  See Davis v. Washington, 547 U.S. 813 (2006).  But unlike in Hammon, where the police encountered no apparent emergency when they arrived on the scene and where the declarant told police that everything was fine, police discovered Parker and Frye arguing.  Parker remained upset during the interview and was visibly shaking and crying.  This made it highly unlikely that she was trying to give a statement for use in a criminal prosecution.  Further, the Court did not believe that the emergency was over.    Officers still needed to discern whether the children in the house were at risk or in need of social services, and whether Parker needed medical attention. 

Ms. Parker’s “excited” demeanor also supported the Court’s conclusion that the statement was nontestimonial.  Parker’s “acute emotional distress, which made her answers undisputed ‘excited utterances,’ . . . implied that her attention was focused more on ‘ending a threatening situation’ than on ‘proving past events.’”

The Dissent: The dissent criticized the majority’s conclusion that there was an “on-going emergency.”  Parker and Frye were in separate rooms when police questioned her.  The “on-going emergency” exception therefore did not apply.   The dissent also did not believe that the record supported the majority’s conclusion that Parker was “plead[ing] for safety for herself and her children” when she spoke to the police.  “[N]othing in the record indicates that when she spoke to the police she wanted to do anything other than report criminal activity.”  The dissent accused the majority of engaging in impermissible speculation. 

Of Note:  Counsel should argue that even after Frye, the “on-going emergency” exception is a narrow one.  Frye involved a unique group of facts: when police arrived on the scene, they did not know what had happened, and they immediately observed an ongoing argument.  Even when they separated Frye from Parker, the emergency was not obviously over.  Parker had injuries that could require medical attention, and Parker’s children were still running throughout the house.  The situation had not been defused.  Counsel should try to distinguish Frye on this basis.  Further, the police in Frye asked only one question.  Additional police questioning could undermine the inference that they are merely responding to an ongoing emergency.

Read the full opinion here.

D.C. Court of Appeals: Don't try to pick up women if you know or should know they will turn you down. Also, the DCCA creates a new standard for attempt.

Grady Hailstock v. United States, No. 12-CM-1741 (decided March 6, 2014)

The Players: Judges Fisher, Thompson, and Schwelb.  Opinion by Judge Thompson.  Concurrence (dubitante) by  Judge Schwelb.  PDS for appellant. Trial Judge: Ronna Beck.

The Facts:  Mr. Hailstock was charged with one count of attempted misdemeanor sexual abuse and one count of assault. He was tried in a bench trial before the Honorable Ronna Beck. The complainant, C.W., testified that Hailstock, who was a family friend, came into her room while she was sick in bed, shut and locked the door, and climbed into bed with her.  He told C.W. that he was going to “get down.”  C.W. pushed him away and said “no,” at which point Hailstock grabbed her robe and touched her breast.  When C.W. moved away, Hailstock stopped, got out of bed, and left the room.  When questioned by the police later, he stated that his intent was to have sex with C.W., but only “if she consented.”

The trial court’s ruling: Judge Beck convicted Hailstock on both counts.  She found that Hailstock intended to have penis-to-vagina contact with C.W., and that when Hailstock got into C.W.’s bed and touched her, he knew or should have known that C.W. would not want to engage in a sexual act with him.  She also found that Hailstock came “dangerously close to committing the alleged misdemeanor sexual abuse.” 

Critically, Judge Beck noted that she could not find beyond a reasonable doubt that Hailstock intended to have sex with C.W. without her consent or that “it was his intention from the beginning to engage in sex that was non-consen[s]ual,” i.e., “where there was affirmative rejection of the interest in sex.”  Nonetheless, she convicted Hailstock of attempted misdemeanor sexual abuse.

Issue 1:  Was there sufficient evidence that Hailstock intended to commit the planned sexual contact with an actual understanding that he lacked permission or with an objectively unreasonable disregard as to the circumstances showing a lack of permission?

Holding: Yes.  

The Court first concluded that Judge Beck’s findings were limited to whether Hailstock intended to have sexual intercourse without C.W.’s consent.  According to the Court, Judge Beck never opined on whether Hailstock intended to have sexual contact – which only requires penis-to-vagina contact – without her consent.  The Court acknowledged that she used these two phrases interchangeably throughout her ruling, but nevertheless concluded that she was only referring to Hailstock’s intent to have intercourse.  Her findings, therefore, did “not preclude a holding that [Hailstock] lacked the requisite mental state.”

Next, the Court concluded that even if Judge Beck found that Hailstock never intend to have sexual contact without C.W.’s consent, he was still guilty of attempted MSA.  So long as he intended to have sexual contact with C.W. and formed that intent at a time when he should have known she would not consent, he was guilty of attempt MSA.  The Court rejected defense counsel’s argument that the government had to establish that Hailstock would have recklessly proceeded without regard to C.W.’s consent. 

Issue 2:  Did Hailstock come “dangerously close” to committing the sexual act or contact?

Holding: Yes.  The Court held that to commit an attempted crime, the government must prove that “except for some interference,” a defendant’s overt acts “would have resulted in commission of the completed crime,” or that the defendant has taken a “substantial step toward commission of the crime.”  The Court stated that Hailstock took substantial steps.  He went into her bedroom, got into bed with her, and tried to touch her even after she said no.  The court also stated that C.W.’s resistance is what stopped Hailstock from pursuing the sexual contact, not Hailstock’s own intent. 

Judge Schwelb’s Concurrence (dubitante):  Judge Schwelb stated that he was “barely” prepared to join his colleagues, but he found that Hailstock’s earlier actions – locking the door and assaulting C.W. on the bed – were “arguably sufficient under the statute.”

Of Note:

The Court altered the requirements to prove attempt.  Under this Court’s previous cases, the government must show that the defendant came “dangerously close” to completing the offense to prove attempt.  In other words, the government must show that but for some external interference, he would have committed the crime. Under the Hailstock Court’s analysis, the government must show only that the defendant has taken “substantial steps” toward committing the crime.  The Court cites no criminal opinions from the DCCA standing for this novel proposition.  Rather, it cites disbarment cases that cite to federal law.  

Counsel should argue that this Court’s earlier opinions control under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).  Under those cases, a defendant is not guilty of attempt unless the government proves that the defendant came “dangerously close” to committing the crime.  Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).  JB.

Read full opinion here.