One crime or two? DCCA provides useful guidance on special unanimity instructions, merger, and the relationship between the two.

Photo by David Cosand via Flickr (CCL).

Bryant & Hagood v. United States, Nos. 12-CF-148 & 12-CF-389 (decided June 19, 2014)

The Players: Washington, Fisher, Ruiz.  Opinion by Senior Judge Ruiz.  Christine Pembroke, Esq., for Marquet Bryant.  PDS for Robert Hagood.  Trial judge: Florence Pan.

The Facts:  This case centered around a series of interactions between the defendants and the occupants of a particular apartment.  Bryant and Hagood were standing with others outside an apartment building when Jerome Edmonds exited his girlfriend’s apartment and walked past en route to purchase cigarettes.  After Hagood twice insulted Edmonds, Edmonds confronted him verbally, at which point Bryant pulled out a revolver and handed it to Hagood.  As Edmonds backed up into the apartment, Hagood tried to push through the door, but the occupants were able to push him out and shut it.  They then heard a couple of kicks to the door followed by a gunshot; a bullet went through the door and grazed Edmonds’s ankle.  The occupants called 911, but the call was mislabeled a destruction of property complaint and not given priority.  While the occupants were calling 911 a second time, Hagood walked through the unlocked front door and said “What’s up” to Edmonds, at which point Edmonds rushed forward and pinned him against the wall.  Bryant, meanwhile, stood in the doorway with the revolver.  After two other occupants pushed him back into the hallway, Bryant raised the gun and fired once into the ceiling.  Both defendants were charged with and convicted of attempted first degree burglary while armed, assault with a dangerous weapon (ADW), and two counts each of possession of a firearm during a crime of violence (PFCV) related to the attempted burglary and ADW charges; Hagood was also convicted of malicious destruction of property, but Bryant was acquitted of that charge.

The bulk of the court’s opinion centers on the two claims raised by both appellants: (1) a challenge to the trial court’s failure sua sponte to give a special unanimity instruction, and (2) a claim that their PFCV convictions merge.  (Bryant also raised several other claims that the court disposed of quickly at the end of the opinion; we do not address them here.)

Issue 1:  Did the trial court commit clear error in failing sua sponte to give a special unanimity instruction (i.e., an instruction that, to find the defendant guilty, all jurors must be unanimous as to which of the two incidents at the apartment door he was guilty of)?

Holding 1:  Yes.  A special unanimity instruction is required when “the jury could have perceived that the defendant engaged in more than one criminal act, and thus some jurors could have returned a conviction premised solely on one factual predicate and others solely on a different factual predicate” (slip op. 15).  In this case, the jury could have reasonably perceived two separate incidents—indeed, the government characterized the defendants’ actions as “two burglaries” and “two shootings” in closing argument—and thus, even without a request from the lawyers, the trial court should have sua sponte given a special unanimity instruction to ensure that the jury would not base its convictions on different factual predicates.  (The court found the error clear but declined to reverse under plain error review.)

Issue 2:  Did the appellants’ PFCV convictions arise out of the “uninterrupted possession of a single weapon during a single act of violence,” such that they merge for Fifth Amendment purposes, or were they two distinct acts that may be punished separately?

Holding 2:  Appellants’ PFCV convictions merge.  Hagood’s attempted burglary—his initial attempt to enter the apartment—was immediately followed by his ADW (shooting through the door).  These events “unfolded in rapid succession,” and Hagood “would not have had the time to pause to reassess his situation before firing the gun in reaction to having the door closed on him” (slip op. 32).  Likewise, Bryant’s attempted burglary—his attempt to enter the apartment after Hagood’s second entrance—was what prompted his ADW (shooting into the ceiling), and  “[t]here was no appreciable point at which Bryant could have reconsidered his actions and yet chosen to inflict a new, distinct harm—it was all part of providing armed support for Hagood” (slip op. 33).

Of note: 

·     The DCCA’s case law on when special unanimity instructions are required often uses the same test used to determine whether offenses are distinct for merger purposes—the “fork-in-the-road” or “fresh impulse” test.  This case makes clear, however, that the analyses are not identical.  The unanimity inquiry, which safeguards the Sixth Amendment jury trial right and the reasonable doubt standard, “focuses on the jury’s perception of the evidence presented at trial,” whereas the merger inquiry, which safeguards the Fifth Amendment protection against double jeopardy, focuses on “the defendant’s choice of actions at the time of the alleged crime” (slip op. 13).  While the “fork-in-the-road” test is a useful factor in determining whether the jury could have perceived that the defendant engaged in more than one criminal act (and thus that a special unanimity instruction is required), “unanimity and merger inquiries must be approached from different perspectives in light of the different constitutional principles they are meant to safeguard” (slip op. 14).

·     The government often argues that PFCV merger applies only where the predicate offenses were “wholly or nearly simultaneous.”  The court in Bryant rejects that argument, explaining that “the exact time-frame is less important than whether the defendant had an opportunity during that time to reflect on whether to abandon his criminal enterprise, but nevertheless chose to invade a new and distinct interest while armed with the same weapon” (slip op. 31).  Thus, in this case, although the appellants’ respective ADWs were not simultaneous with their attempted burglaries but followed at least a “momentary interruption,” the PFCVs attached to them merged because neither appellant would have had any appreciable moment to pause and reassess his situation.  CM

Defense child psychology expert properly excluded.

Girardot v. United States, No. 12-CO-144 (decided June 12, 2014)

Players:  Associate Judges Fisher, Blackburne-Rigsby, and Senior Judge Pryor.  PDS for appellant.  Trial Judge Mitchell-Rankin.  Opinion by Judge Fisher.

Facts:  Mr. Girardot was convicted of two counts of misdemeanor sexual abuse—one against an eight year old and the other against a ten year old—after a 2006 bench trial.  At the trial, Judge Mitchell-Rankin excluded the defense’s expert on child psychology, who intended to testify about the suggestibility of children and other psychological factors that make the young girls’ reports of abuse less reliable than a lay person might intuitively think.  Judge Mitchell-Rankin excluded the defense expert, finding that the topic of her testimony was “not beyond my ken” and concluding that the testimony would not help her in reaching a verdict.  The Court of Appeals reversed that exclusion, finding that the relevant question—even at a bench trial—is whether the expert testimony is beyond the ken of the average person, not beyond the ken of the judge. 

On remand, the court held an evidentiary hearing focused on the defense expert’s qualifications.  Judge Mitchell-Rankin also heard the expert’s substantive testimony, telling the parties “[w]e’re going to proceed as if the issue of qualifications has been resolved to get to the substantive testimony.”  After hearing the testimony, the judge excluded it, finding it lacking on each of the three Dyas prongs:  specifically, that (1) the subject matter of the expert’s testimony was not beyond the ken of the average layman, (2) the proffered expert did not have sufficient skill or expertise in the area, particularly because none of her numerous academic books and articles were on child sexual abuse, and (3) the state of scientific knowledge did not permit the expert to state a reasonable opinion because there was no generally accepted scientific methodology.  As an alternative holding, the Court stated that the expert’s opinion would not have affected her verdict in any event, even if she had considered it as admitted evidence.

Issue:  Whether the trial court abused its discretion in excluding the defense proffered expert on child psychology and suggestibility.

Holding:  The trial court did not abuse its discretion when excluding the expert testimony.  For the past few years, the Court has issued a series of opinions reprimanding trial courts for excluding defense experts about witness reliability as a matter of course.  However, those opinions involved errors where the trial courts acted without considering the Dyas factors or by invoking some presumption against admitting defense experts of this type.  When reversing in those cases, the DCCA never controverted the basic principle that the trial court has discretion in these matters, and just as trial courts should not make rote exclusions of these experts, neither should they admit them as a matter of course.  The trial court carefully weighed the Dyas factors as required, and did not abuse its discretion in doing so.

Read full opinion here.

Evidence insufficient to support convictions, despite complainant’s positive identifications of respondent, where complainant explicitly stated that a photograph of respondent taken hours after the incident was not a picture of his assailant.

In re A.W., No. 11-FS-1583 (decided June 12, 2014)

Players:  Judges Glickman, Schwelb, and King.  Opinion by Judge Schwelb.  Dissent by Judge King.  Shirin Ikram, Esq., for A.W.  Trial judge: Milton C. Lee.

Facts:  The complainant was riding on the metro and had his cell phone out, texting, when four young people boarded at the Chinatown stop.   A few minutes and two stops later, when the train arrived at Union Station, the four youths exited the train and as they did, one of them grabbed the complainant’s phone.  The complainant held onto his phone, and in the ensuing struggle somebody—not the person who grabbed his phone—punched him in the side of his head and knocked him to the ground.  The group then ran off, leaving the cell phone behind with the complainant.  In reporting the incident to officers, the complainant described the group of four individuals, and specifically described the would-be phone snatcher as having short hair and almond-shaped eyes; he also described a 6-foot-tall transgendered person with a muscular build and a curly wig, but specifically indicated that the transgendered person was not the one who tried to steal his phone. 

Later that evening, officers found and questioned a group of four youths who matched the complainant’s description outside the Chinatown metro stop.  According to one of the testifying officers, appellant A.W. told the officer “we didn’t do anything to that white man.  He fell on his own.  We didn’t do anything to that man at Union Station.”  At that point, the officer took a photograph of A.W., which showed A.W. with long curly hair.  The officer later interviewed A.W., who indicated that he was on the train with the complainant but that he was not the one who punched or tried to rob the complainant.  Ten days after the incident, the complainant was shown a photo array that included a two-year-old photo of A.W., whom he identified as his assailant, commenting on his distinctive almond-shaped eyes.  At the bench trial, the complainant also made an in-court identification of A.W. as the person who tried to steal his phone.  However, when shown the photograph that an officer took of A.W. two-and-a-half hours after the alleged assault, the complainant stated, “that’s not the person who took my phone,” commenting that A.W.’s eyes in that photo were “very round and open,” and not the almond-shaped eyes he found so distinctive.

The judge acquitted A.W. of aggravated assault but found him guilty of assault with intent to rob and misdemeanor destruction of property, citing as support the complainant’s in-court identification of A.W. and the positive identification he had made ten days after the incident.  The fact that the complainant specifically stated that the person in the photograph of A.W. taken two-and-a-half hours after the incident was not his assailant did not sway the judge, who reasoned that A.W. may have gone home and made efforts to change his appearance, for example, by putting on a wig. 

              

Issue: Whether the evidence was insufficient to prove assault with intent to rob and malicious destruction of property, where the complainant positively identified the respondent in court, but also explicitly stated that a photograph of the respondent taken mere hours after the incident was not a picture of his assailant.

Holding:  The evidence was insufficient to substantiate the convictions.  The court begins by briefly recapping the “extensive judicial experience and scholarly research” on eyewitness identifications, noting the difficulties with convictions based on a single eyewitness’s identification.  The heart of the court’s opinion, though, is that when the complainant was shown the photograph of A.W. taken just two-and-a-half hours after the incident, he “without the slightest hesitation, . . . emphatically and spontaneously volunteered that ‘that’s not the person that took my phone.’”  Also, the Metro surveillance footage taken contemporaneously with the incident showed A.W. as having long, curly hair, not the short hair the complainant ascribed to the phone snatcher.  Given all that evidence, and acknowledging that “the reasonable doubt standard of proof is a formidable one,” the court held that the record could not support the convictions.  Judge King dissented, concluding that “there was much to support the trial judge’s conclusion that the identification was reliable” and that the complainant’s statement that the photograph of A.W. did not depict his assailant was “not decisive.”  JD.

Read the full opinion here.

88-page opinion yields too many issues to discuss in one snappy caption.

Hagans et al. v. United States, 04-CF-253 (decided June 5, 2014)

The Players: Chief Judge Washington and Associate Judges Glickman and Reid. Opinion by Judge Glickman. Veronica Holt, Lisa Schertler, Matthew Krueger, and Matthew Hoffman for appellants. Trial Judge: Robert Richter.

The Facts: In about 1999, a feud escalated between two Petworth drug gangs, the Delafield crew and the Mahdi brothers, resulting in a number of shootings. In 2001, numerous members of both gangs were indicted. Harrell Hagans and Brion Arrington, two of the three leaders of the Delafield gang, and Warren Allen and Gary Leaks, two lower-ranking members, were charged with various counts of murder, assault with intent to kill while armed (“AWIKWA”) , and weapons offenses.

At trial, lightly redacted plea proffers from four Mahdi brothers were admitted into evidence over defense objections, and the judge told the jury that the proffers were only there to cast some light on the relationship between the two gangs, not as evidence of what anyone other than the Mahdis had actually done. The Mahdi brothers themselves asserted their Fifth Amendment privilege not to testify at the trial, so they were not available for cross-examination; the government later conceded that admitting the plea proffers under these circumstances violated the Sixth Amendment’s Confrontation Clause. The prosecution also made use of several extra-judicial statements by some of the defendants, which were admitted under the party opponent exception to the rule against hearsay. At one point, the prosecution introduced evidence of a shooting on Roxboro Place in which Arrington and another Delafield gang member killed two people; the case included no charges arising out of the incident, and the evidence was admitted solely to establish that Arrington owned two guns that were later used in the charged crimes. In order to avoid undue prejudice to Arrington, any mention of the two deaths was excluded.

One witness for the prosecution, Jason Smith, testified that he was taking certain medications to help him sleep. The defense wanted to call the chief psychiatrist at the DC Jail to testify that Smith was actually taking those medications for auditory hallucinations and other psychotic symptoms, which he had probably developed after being sexually assaulted at the jail. The court ruled that if the defense introduced that testimony, the prosecution would be allowed to counter with Smith’s grand jury testimony (given before his sexual assault in jail), which was consistent with his trial testimony. The defense opted not to call the psychiatrist, so the grand jury testimony was not introduced. Another prosecution witness, Charles Payne, was impeached with his grand jury testimony, and the prosecution was subsequently allowed to refer repeatedly to that testimony in its closing argument in order to argue that it was consistent with Payne’s trial testimony.

Issue 1: Did the unconstitutional admission into evidence of the Mahdi brothers’ plea proffers constitute reversible error?

Holding 1: The mountains of other evidence against the appellants dwarfed the Mahdi brothers’ proffers, which the government didn’t rely that heavily on anyway, so it was clear beyond a reasonable doubt that the error didn’t contribute to the verdict.

Issue 2: Could the out-of-court statements of some defendants be admitted under the party opponent hearsay exception in a conspiracy case where the jury was given a Pinkerton instruction on vicarious liability? And were they sufficiently redacted?

Holding 2: The defense counsel didn’t object to the admission of these statements specifically enough at trial, so a plain error standard applied, and there was no plain error. Some of the extra-judicial statements in question likely would have been admissible under another hearsay exemption (for example, as statements against penal interest or as statements by co-conspirators during and in furtherance of the conspiracy). Furthermore, because of the aforementioned mountains of evidence against the appellants, the extrajudicial statements hadn’t been essential to the outcome of the trial. One witness’s testimony was not sufficiently redacted to protect three of the defendants, but they weren’t entitled to a new trial because, again, there was so much other evidence that the error was harmless.

Issue 3: Did the trial court abuse its discretion by admitting evidence of the Roxboro Place shooting? Should it have severed Hagans’s trial from Arrington’s so that Hagans could freely cross-examine the witness on the resulting deaths?

Holding 3: No and no. Although it was prejudicial, the evidence tying the guns to Arrington had considerable probative value. The court properly kept the jury from hearing about the two resulting deaths and instructed it on the limited use it could make of the evidence. Hagans wanted to cross-examine the witness on the deaths in order to impeach him (the witness had participated in the shootings alongside Arrington), but Hagans had already amply impeached the witness, so he was not unduly prejudiced.

Issue 4: Did the trial court err in ruling that Smith’s grand jury testimony would be admissible to rehabilitate him if the defense impeached him with the psychiatrist’s testimony? If so, were the appellants’ Confrontation Clause rights violated because their ability to impeach Smith was restricted?

Holding 4: The trial court did not err, because courts have broad discretion to allow prior consistent statements for the purpose of rebutting suggestions that a witness’s trial testimony is a recent fabrication. The prior statement must have been made when the supposed reason for the fabrication did not exist, which was satisfied here because Smith’s hallucinations were more likely than not caused by the sexual assault in jail. The appellants’ Sixth Amendment confrontation rights were not infringed even if they were dissuaded from exercising them by the court’s ruling.

Issue 5: Did the prosecution improperly refer to Payne’s grand jury testimony, which had not been admitted into evidence, to bolster Payne’s credibility?

Holding 5: No. The prosecution’s assertions that Payne’s grand jury testimony was largely consistent with his trial testimony had a basis in the record, as the defense had impeached Payne on only minor points. Although prior consistent statements generally can’t be introduced to rehabilitate a witness, the prosecution’s use of the grand jury testimony fit within the “rule of completeness” and “recent fabrication” exceptions. Regardless, the appellants suffered no substantial prejudice, so it wouldn’t have been reversible error anyway.

Issue 6: Should Allen and Leaks have been granted separate trials, as they were accused only of involvement in a single incident but the jury heard lots of prejudicial testimony about other crimes that didn’t involve them?

Holding 6: No, the trial court was within its discretion to deny the motions for separate trials. Since this was a conspiracy trial, evidence of crimes that Allen and Leaks weren’t directly involved in was relevant and might have been admitted against them even if their trials had been severed from Hagan’s and Arrington’s. Even aside from that, there was no “spillover” prejudice because the government was careful to present its evidence incident by incident to avoid confusing the jury.

Issue 7: Was there sufficient evidence of intent to convict Allen and Leaks of first-degree murder and AWIKWA?

Holding 8: Yes. The two set out, along with Arrington and Hagans, to shoot up the Mahdi brothers’ corner of the neighborhood, and they “unleashed an indiscriminate attack that lasted for minutes.” The two women who were shot (one fatally) were innocent bystanders caught in the “wide zone of lethal danger” that appellants intentionally created, which was sufficient intent to support the convictions.

Issue 8: Even if none of the individual errors warrants reversals of the convictions, does the cumulative effect of all the errors put together?

Holding 8: No. It is unclear what standard applies when evaluating the cumulative effect of a “mixed bag of errors” (containing preserved constitutional error, preserved non-constitutional error, and unpreserved error), but even under the most pro-reversal standard the government’s case was so strong that there is no reasonable possibility that the errors affected the trial outcome.  Sam Feldman, pinch hitting.

Read full opinion here.

A trial judge’s belief that the government has a very strong case is not a basis to exclude the defense’s proffered expert testimony.

In re L.C., No. 10-FS-709 (decided June 5, 2014)

Players: Chief Judge Washington, Associate Judge Glickman, Senior Judge Nebeker.  Opinion by Judge Glickman.  Dissent by Judge Nebeker.  PDS for L.C.  Trial judge: Hiram Puig-Lugo.

Facts:  Juvenile attempted carjacking case.  Defense is misidentification.  Complainant was accosted by two men who attempted to take her car keys, but fled after she screamed for help.  She called the police and described one of the would-be robbers as wearing an open-faced ski mask and a light blue jacket with a white stripe or stripes.  A few minutes later, the police stopped L.C. approximately 200 feet from the scene, in the area toward which the would-be robbers had run.  L.C. was wearing a light blue jacket with white stripes, and had an open-faced ski mask in his pocket.  Another man with L.C. approximately matched the complainant’s description of the other would-be robber.  The complainant identified L.C. during a show-up identification, including noting that she recognized his jacket.  At trial, the complainant testified that she was certain of her identification, and admitted that her heart was racing and that she was afraid. 

The defense, in addition to presenting two alibi witnesses, sought to admit the testimony of Dr. Steven Penrod, an expert regarding the psychological factors that can effect eyewitness identification.  Specifically, the defense sought to elicit testimony regarding “clothing bias” (resulting from a witness viewing a suspect wearing similar clothes to the witness’s initial description), the poor correlation between the witness’s confidence in her identification and the accuracy of that identification, and the negative effect of stress and emotion on the accuracy of identifications.    

The trial judge precluded the defense expert without conducting a voir dire of Dr. Penrod or evaluating the psychological research on which Dr. Penrod’s proffered testimony relied.  The judge ruled that Dr. Penrod’s testimony was not beyond the ken of the average layperson and that the proposed areas of expert testimony were matters of common sense that could be elicited through defense cross-examination and closing argument.  (During defense counsel’s closing argument the trial court precluded counsel from referring to Dr. Penrod’s research because it was “not common knowledge.”)    

Issue 1:  Whether the trial judge abused its discretion in precluding the eyewitness expert testimony on the ground that it was not beyond the ken.

Holding 1: As in Benn v. United States (Benn II), 978 A.2d 1257 (D.C. 2009), and Russell v. United States, 17 A.3d 581 (D.C. 2011), the trial court abused its discretion in ruling that the proffered expert testimony was within the ken of the average lay person requiring a remand for a Dyas hearing.

Issue 2:  Whether the trial court’s ruling excluding the expert testimony can be upheld because the eyewitness’s identification was corroborated and therefore the expert testimony would not be “helpful” to the factfinder.

Holding 2:

A) That was not the basis of the trial court’s ruling, and the Court of Appeals may not affirm a discretionary ruling on a ground the trial court did not rely on and had the discretion to reject. 

B) Evidence corroborating an eyewitness’s identification is “irrelevant to the question of the admissibility of [the] proffered expert testimony.”  “Even in a bench trial, the inquiry as to admissibility does not call for the court to assess the weight of pertinent and admissible expert testimony in light of the anticipated strength of the opposing party’s evidence.”  “The criterion of helpfulness is not a grant of authority to the trial judge to exclude relevant and otherwise admissible expert testimony merely because it is against the expected weight of the evidence.  Still less does Dyas authorize the trial judge to exclude expert testimony as unhelpful based on the perceived strength of the opponent’s evidence alone.”

Of note:

·       “[E]vidence may not be rejected as irrelevant merely because it is contradicted by other evidence.”

·       “The standard of relevance is the same for expert testimony as it is for other evidence[.]”

·       Although other cases have found no abuse of discretion in the exclusion of eyewitness expert testimony where corroboration of the challenged identification exists, those cases represent the appellate court’s assessment of prejudice; the corroboration of the identification is not a legitimate reason for the trial court to exclude the evidence

·       The dissent argues that inquiry into expert admissibility should include the court’s assessment of “the weight of the expert testimony in light of contrary evidence” and that the error in failing to admit the expert testimony here was harmless in light of the evidence corroborating the witness’s identification.  JA

Read the full opinion here.

Images on a video feed from a surveillance camera are not statements, and therefore a witness’s testimony about what he saw on a video feed is not hearsay.

Marvin Holmes v. United States, No. 13-CF-307 (decided June 5, 2014)

Players: Associate Judge Thompson, Associate Judge McLeese, Senior Judge King.  Opinion by Judge King.  Edward E. Schwab for appellant.  Trial judge: Juliet J. McKenna. 

Facts: Holmes was charged with stealing two shirts from Saks Fifth Avenue.  (The shirts were valued by the store at $275 each!).  The store detective watched Holmes using the store’s surveillance cameras.  Holmes put the shirt in a bag and walked out of the store without paying.  The detective testified about what he saw on the video feed from the surveillance cameras and the recorded footage was shown at the trial.  In a shocking twist, Holmes was convicted of shoplifting.    

Issue: Is a witness’s testimony about what he viewed on a surveillance video feed hearsay?

Holding:  A camera is not a person.  The video image provided by a surveillance camera is not a statement.  The store detective’s testimony about what he saw on the surveillance camera video was not inadmissible hearsay. 

Of note:

·       The recorded video from the surveillance camera was admitted into evidence.  If it had not been admitted, the defense could have made a good “best evidence rule” objection.  See, e.g., Williams v. United States, 686 A.2d 552 (D.C. 1996) (“The elementary wisdom of the best evidence rule rests on the fact that the document is a more reliable, complete and accurate source of information as to its contents and meaning than anyone’s description[.]”). 

·        The Court noted "that if a witness testified about the content of an out-of-court statement, and that statement is offered in support of its truth, then the testimony is hearsay, whether or not the witness observed the other person live or on camera.” 

·       For hearsay purposes a statement is “either an oral or written assertion or nonverbal conduct intended as an assertion.”  JA

Read the full opinion here.