Merely possessing what looks like an open bottle of alcohol is not itself enough to sustain a conviction for possessing an open container of alcohol.

Earl Workman v. United States, No. 13-CM-323 (decided July 31, 2014)

The Players: Fisher, Beckwith, Ferren.  Opinion by Judge Beckwith.  Montrell Scaife for appellant.  Trial judge: Harold Cushenberry.

The Facts: The police pulled Mr. Workman over for talking on his cell phone while driving.  While examining Mr. Workman's registration, one of the officers noticed what appeared to be a partially empty tequila bottle on the floor behind the driver's seat.  The officers removed Mr. Workman from the vehicle and searched the car for "additional contraband that would have coincided with the open container of alcohol." The search, however, yielded no such "contraband." Although the officers did photograph the tequila bottle, they did not examine it or "pick it up and look at it."  The traffic stop and automobile search ultimately led to Mr. Workman's arrest and conviction for possessing an open container of alcohol ("POCA").

Issue: Was Mr. Workman's conviction for POCA supported by sufficient evidence?

Holding: No.  Although the tequila label on the bottle was "solid proof of what was in the container when it was bottled and sold," that evidence "reveals much less about what the bottle contained after it was opened" and could not, by itself, constitute proof beyond a reasonable doubt.

Of note: The government can obtain a conviction for POCA based on circumstantial evidence, but the evidence must be more compelling than an officer's observation that an individual possesses what appears to be an open bottle of alcohol.  CK.

Read the full opinion here.

DCCA holds that a homicide defendant who was being shot at by the decedent’s associates was not entitled to a self-defense instruction for shooting the decedent because there was no evidence that the decedent himself was armed.

Photo by Earl via Flickr (CCL).

Katrell A. Henry v. United States, No. 12-CF-1152 (decided July 10, 2014)

The Players: Glickman, Thompson, Reid.  Opinion by Judge Thompson.  PDS for Mr. Henry.  Trial judge: Lynn Liebovitz.

The Facts:  The government’s main witness, Joseph Nelson, testified that he saw Mr. Henry and Laroy Bryant, the decedent, arguing in a parking lot. Nelson could hear that Bryant was using profanity and insulting Henry but could not hear Henry’s response; Nelson did not see anything in either’s hands.  Nelson saw Henry retreat toward the apartment building and Bryant walk toward a group of people hanging out by a dumpster; shortly thereafter, however, Henry returned with a gun and he and Bryant resumed arguing.  Nelson testified that he saw Henry “stumble back as if he had been pushed,” then raise his gun and begin shooting at Bryant’s leg, at which point several of the people by the dumpster began firing at Henry.  Nelson equivocated as to who fired the first shot, telling the prosecutor on direct and redirect that Henry shot first but stating on cross-examination that he did not know who had started the shooting. 

Henry testified in his own defense.  He stated that, weeks earlier, Bryant had threatened him with physical harm because Henry had informed Bryant’s new love interest (who was the mother of one of Henry’s children) that Bryant was a drug dealer and was rumored to have HIV.  Being “deathly afraid” of Bryant and his “boys,” Henry had tried to avoid him, began looking for a new place to live, and also began carrying a gun.  On the night of the shooting, he inadvertently encountered Bryant, who began “cussing” at and threatening him.  Although Henry initially ignored the insults, when Bryant called to him, Henry walked over and said he had had “enough of” the “bullshit.”  Bryant then pushed him with two hands; as Henry was falling backwards, he saw two of Bryant’s “boys” by the dumpster pull out guns and begin firing at him.  Henry testified that he was shot before he even had his gun out of his pocket.  He then fired three or four shots toward the shooters near the dumpster, who fired a couple shots back and then ran away.  According to Henry, he never fired in Bryant’s direction; rather, it was actually Bryant’s “boys” who shot and killed Bryant. 

Defense counsel requested a self-defense instruction on the theory that Henry could have reasonably believed that shooting Bryant would cause Bryant’s associates by the dumpster to cease shooting at him.  The trial court rejected that argument and instructed the jury that the self-defense instructions applied only to Henry’s shooting toward the people by the dumpster, not to his shooting of Bryant.  On appeal, the defense presented a slightly different self-defense theory: that a self-defense instruction was required with respect to Bryant because there was evidence from which the jury could infer that Henry actually and reasonably believed that Bryant was about to shoot him.

Issue:  Did the trial court err in refusing to give the requested self-defense instruction because the jury could have reasonably believed, on the evidence before it, that Bryant was “about to join in the affray” and “was about to start shooting as well”?

Holding:  No.  Although there was evidence from which the jury could infer that Henry actually and honestly believed that his life was in danger, there was no evidence from which it could infer that he reasonably believed that Bryant “was about to start shooting him” because there was no evidence that Bryant was armed.  Although Henry had seen Bryant with a gun a few years before, and Bryant was also a known drug dealer, the court concluded that those facts did not support a conclusion that Bryant was armed at that moment.  

Of note: 

·       Although Henry’s self-defense theory on appeal differed slightly from the theory he presented to the trial judge, it was properly preserved; because Henry presented the instructional claim to the trial court, he could make any argument in support of that claim on appeal.

·       Practice tip:  Remember, the law says that a defendant is entitled to a defense theory instruction so long as the requested instruction “is supported by any evidence, however weak.”  Higgenbottom v. United States, 923 A.2d 891, 899 (D.C. 2007). The court’s decision that Henry was not entitled to a self-defense instruction is very fact-specific, so defense lawyers should attempt to cabin Henry to its facts. CM

Read the full opinion here.

Seventy-five minute detention of juvenile suspect while police went to retrieve a witness for a show-up identification held an unreasonable seizure in violation of the Fourth Amendment.

In re D.M., No. 11-FS-1125 (decided July 10, 2014)

The Players: Blackburne-Rigsby, Pryor, King.  Opinion by Judge King.  PDS for D.M.  Trial judge: Patricia Broderick.

The Facts:  Anthony Pickett witnessed five juveniles break into a neighbor’s home.  His mother called 911 and Pickett provided a description of the juveniles, but before police could arrive, the juveniles exited the house and ran down the alley.  Pickett described the juveniles to the responding officer, who then broadcast a radio lookout for them.  Two canvassing officers saw a group of four young men standing outside an apartment building; when the males saw the police, they hurried into the building.  The officers followed them and stopped the group, asking them their names and general questions.  When a detective arrived, he noticed that D.M. matched the clothing of one of the lookout descriptions.  The officers released the other juveniles but detained D.M. while the detective returned to the scene of the burglary to bring Pickett for a show-up identification.  After seventy-five minutes, the detective returned with Pickett, who identified D.M. as one of the burglars.  D.M. moved to suppress the show-up identification on the ground that his seventy-five minute detention exceeded the scope of a reasonable Terry stop.  The trial court denied that motion, and D.M. was adjudicated guilty, in a bench trial, of burglary, theft, and felony destruction of property.

Issue:  Did the police’s detention of D.M. for seventy-five minutes while they waited for the detective to bring a witness for a show-up identification violate D.M.’s Fourth Amendment right against unreasonable seizures?

Holding:  Yes.  While a seventy-five minute detention is not per se unreasonable, here the government failed to meet its burden of proving that the police acted diligently and that the lengthy delay was necessary to complete their investigation.  Although the evidence showed that Pickett had gone to work after calling 911, and thus “had to return from work before he could participate in the show-up identification” (slip op. at 20), the government presented no evidence about where Pickett worked, how far away it was, how long it took him to return, or at what time the officers contacted him.  Thus, any conclusions about whether the police acted diligently or whether the delay was necessary would be entirely speculative.

Of note: 

·       Although the court emphasizes that there is no bright-line rule that detentions of a certain length are per se unreasonable, it acknowledges that it has “never upheld a seizure for over an hour while police arranged a show-up identification” (slip op. at 11), and that it is “not aware of any precedent in any jurisdiction upholding the detention of a suspect for over an hour while a show-up identification was arranged” (slip op. at 12).

·       The court rejects the notion that a detention is unlawful if there existed “less-intrusive means by which the police could have accomplished their investigation,” explaining: “[W]e review whether the police acted reasonably in pursuing the investigative methods they chose under the circumstances—not whether other reasonable, though perhaps less-intrusive, methods were available” (slip op. at 15).  CM

Read the full opinion here.

No, dumping Brady shortly before trial along with other disclosures without identifying it as Brady is not okay. No, giving vague “summaries” of Brady information without details or source documents is not okay. No, the question is not whether the prosecutor can explain away the favorable information but whether defense counsel would want to know about it. And yes, if you, prosecutors, “betray Brady [or] give short shrift to Giglio … you will lose your ill-gotten conviction.”

Alonzo R. Vaughn & Carl S. Morton v. United States, Nos. 11-CF-228 & 11-CF-363 (decided July 3, 2014)

The Players: Judges Glickman, Easterly, and Pryor.  Opinion by Judge Easterly.  Cory L. Carlyle for Mr. Vaughn.  Amanda R. Grier and Saul M. Pilchen for Mr. Morton.  Trial judge: Robert E. Morin.  Trial prosecutors: Mary Chris Dobbie and Reagan M. Taylor.

Quick take: This is an important Brady opinion that, while quite lengthy, deserves a careful read.  Here are some highlights of important principles the opinion addresses:

• Timing of Brady disclosures:  The goal of Brady “is not achieved by last-minute information dumps.  Rather, where disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.”  “Brady disclosures are required well before the scheduled trial date…”  Specifically, in this case where the government knew about the information at least two months before trial, disclosing it one week before trial was not timely.

• Burying Brady in other disclosures and not identifying it as Brady: “Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.”  In this case, the government argued that it had not suppressed the favorable information because it had disclosed it – or at least partially disclosed it – in a pre-trial motion.  The Court disagreed with the government in part because the government had not explicitly identified the information as Brady material.   

• Brady “summaries” instead of source documents:  “Even if it is theoretically possible for the government to fulfill its disclosure obligations under Brady by means of summaries of preexisting documents, such summaries must be sufficiently specific and complete…. [W]e consider the required level of detail from the perspective of the defense; where source documents exist, the government must summarize … them with every detail that might have been relevant to defense counsel’s preparation as counsel viewed the case.  This may be challenging for the government, which presumably is not privy to defense counsel’s thoughts and theories pretrial.  Accordingly, the government withholds source documents at its peril.” 

• Duty to Search for Brady information: The government has a duty to search branches of government closely aligned with the prosecution and “[f]or such an important witness [one of two witnesses to identify the defendants] the government should have had the systems in place to ensure that it was alerted immediately about impeaching information.”

• Prosecutors’ assessments of favorability, part 1: When a prosecutor is confronted with facially exculpatory evidence (in this case a report that concluded a key witness had made false statements) she cannot suppress it simply because she can explain it away (in this case the prosecutor apparently disagreed with the report’s conclusions that the witness had made false statements).     

• Prosecutors’ assessments of favorability, part 2: “The defense perspective controls” the determination of whether evidence is favorable or not for Brady purposes, the question is whether the information is “of a kind that would suggest to any prosecutor that the defense would want to know about it because it helps the defense.”

• Materiality: Impeachment evidence, showing a key witness’s track record for untruthfulness and willingness to make false reports in a context similar to the case at hand, which could provide fodder for additional questions on cross-examination, is material for Brady purposes.

• Prosecutors’ assessments of materiality: “The materiality assessment this court conducts on appellate review is necessarily different from the materiality assessment the government can make pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the government must disclose information that is ‘arguably’ material.”

The Facts:  The defendants were convicted of aggravated assault and assault on a law enforcement officer in connection with an incident at the D.C. Jail in which a group of men attacked a fellow inmate and a corrections officer, Sergeant White.  The victims could not identify Morton or Vaughn, but multiple security cameras had captured footage of the incident.  While the recordings were low quality, two other corrections officers testified that they could identify Morton and Vaughn from the footage.  Unbeknownst to the defendants, one of the witnesses, Officer Childs, had a significant credibility issue. 

Six months before the attack on Sergeant White, Officer Childs had filed a report accusing a different inmate of assault, thereby justifying Childs’ use of a chemical agent against the inmate.  Childs’ claim was investigated by the Department of Corrections (DOC) Office of Internal Affairs (OIA).  The DOC OIA final report determined that video footage of Childs’ use of the chemical agent did not show the alleged inmate assault.  The final report resulted in Childs’ demotion from Lieutenant to Sergeant. 

The OIA Officer who wrote the final report on Childs also assisted in the investigation of the Sergeant White assault.  That officer stated in a post-trial affidavit that he informed the United States Attorney’s Office, two months before Vaughn and Morton’s trial, about the OIA report and Childs’ demotion.

The prosecution, however, did not disclose the information from the OIA Officer or the report before the trial.  Instead, only one week before trial, the government filed a motion to preclude the defense from questioning Childs about the misconduct in the OIA report.  In the motion the government provided a “summary” of the report that gave no indication that the OIA had investigated a potentially false allegation of an inmate assault by Childs and had in fact determined the allegation was false, nor did the summary reveal Childs’ resulting demotion.  The summary instead focused on a portion of the report finding that Childs’ properly used the chemical agent (the prosecutor even quoted a portion of Childs’ incident report that was discredited in the final OIA report to claim that the inmate had been acting aggressively).  The government did disclose that the final report concluded that Childs’ had inaccurately stated that the inmate was unrestrained, but portrayed the report’s conclusion with skepticism because Childs had only “suggested” the inmate was unrestrained.

The government did not provide the trial judge with a full copy of the report; instead – ex parte – the government provided what it said was the final report but was only the first five pages of the ten page report, leaving out the findings adverse to Childs, which began on the sixth page.  When the trial judge asked if he had the complete report because what he had stopped at page 5, the trial prosecutors did not alert the judge that his copy was incomplete and one of the prosecutors said “‘yeah, mine is five pages long[.]’”  The trial court denied defense counsel’s requests for disclosure of the actual report rather than the government’s summary. 

Based on the government’s objections, the defense was limited to asking Childs only if he had submitted a false report and if he had been disciplined for submitting a false report.  Childs answered “no” to both questions and the defense had no means of challenging these responses.  The defendants were convicted.

After the trial, the trial court ordered disclosure of the actual report in response to a defense motion for a new trial.  The trial court, however, denied the motion for a new trial, concluding that there had never been a finding that Childs had made a false report, that Childs’ demotion was informal, and that therefore the information from the DOC OIA would not impugn Childs’ credibility. 

Holdings:

The trial court’s clearly erroneous fact-finding: The trial court was misled and its adoptive fact-finding was clearly wrong.  The OIA report concluded that Childs had falsely accused the inmate of the assaultive behavior, that Childs filed false reports to that effect, and that Childs falsely suggested the inmate was not restrained.  The inference – from the OIA investigator’s post-trial affidavit – is that the OIA credited all of the conclusions in the report and meted out significant discipline by demoting Childs from Lieutenant to Sergeant.

Favorability:  The OIA determination of false reporting “was clearly impeaching, and was the sort of information in which any competent defense lawyer would have been intensely interested.”  The favorability of the report “does not turn on its ultimate truth or the government’s assessments thereof.  The government could not withhold this information because it did not trust [the report’s] conclusions … or because it did believe its witness, Officer Childs, who professed innocence of false reporting …”

Suppression:  The motion in limine the government filed one week before trial seeking to foreclose cross-examination of Officer Childs about the chemical spray incident was not a Brady disclosure.  The government did not cite Brady or indicate that the information was favorable.  “Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.”

The motion was not timely.  The government knew about the OIA report two months before trial, but disclosed nothing about it until a week before trial, and then withheld the actual report and other important information until after the trial.  The goal of Brady “is not achieved by last-minute information dumps.  Rather, where disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.”  Furthermore, “Brady disclosures are required well before the scheduled trial date….  Only in this way can we ensure defense counsel has an opportunity to investigate the facts of the case and, with the help of the defendant, craft an appropriate defense.”

In fact, the government had an obligation to disclose before it learned about the report: it had an obligation to disclose that Childs was under investigation by the DOC OIA.  Even if it had been a Brady disclosure, the belatedness of the motion is not excused by the fact that the government did not learn of the investigation until a few months before trial.  The government has a duty to search branches of government closely aligned with the prosecution and “[f]or such an important witness … the government should have had the systems in place to ensure that it was alerted immediately about impeaching information.”

Furthermore, the motion was neither accurate nor complete.  “Even if it is theoretically possible for the government to fulfill its disclosure obligations under Brady by means of summaries of preexisting documents, such summaries must be sufficiently specific and complete…. [W]e consider the required level of detail from the perspective of the defense; where source documents exist, the government must summarize … them with every detail that might have been relevant to defense counsel’s preparation as counsel viewed the case.  This may be challenging for the government, which presumably is not privy to defense counsel’s thoughts and theories pretrial.  Accordingly, the government withholds source documents at its peril.”  The motion here “did not come close to satisfying our standards ….”  The motion presented as true that which the OIA had determined false – Childs’ claim that the inmate acted aggressively – and used the false story as a backdrop to portray the investigation as merely an inquiry into excessive force and sloppy report-writing.  It also omitted the disciplinary consequences. 

“In the absence of a timely, accurate, complete, or usable disclosure,” the Court concluded the favorable information was suppressed.

Materiality:  The information “was powerfully impeaching,” it established Childs’ track record of untruthfulness and “established that he was willing to make false reports implicating inmates in assaults on law enforcement agents – the precise context of this case.”  “[A]t the very least, defense counsel would have had a firm foundation to press for much more leeway in cross-examining Officer Childs.”  The Court could envision “a series of permissible, pointed questions by defense counsel that would have seriously damaged Officer Childs’s credibility in the eyes of the jury – whether he answered them truthfully or tried to avoid giving a truthful answer.”

Morton’s convictions reversed and remanded for new trial.  Vaughn’s convictions were not reversed on Brady grounds because his post-trial litigation position – in the form of an affidavit – admitted that he was the person identified by Childs on the video.

Of Note:

•  “Some courts have held that where the government engages in deliberate Brady misconduct, a new trial should not be held. We neither endorse nor foreclose such an argument by the defense on remand.”  The government on remand is required to represent – “in writing, filed with the trial court” – that it has fulfilled its duty to learn of and disclose to the defense all Brady information in its actual or constructive possession before it can retry Morton.
• The court also reversed Mr. Vaughan's aggravated assault conviction on the ground that the trial court's jury instruction on aiding and abetting was plainly erroneous because it “inappropriately combined the standards for aggravated assault and felony assault, instructing the jury that it could find the defendant guilty of aggravated assault if it found the defendant had the lesser mens rea for felony assault.”  Vaughn’s participation was very limited, so there is at least a reasonable probability that the jury relied on the lesser mens rea to convict him of aiding and abetting the aggravated assault.  JA

Read the full opinion here.