Hands Up, Hands Down, Hands Up, Hands Down

Donald Brown v. United States, No. 12-CF-803 (decided August 8, 2014)

The Players: Washington, Glickman, Ruiz.  Opinion by Judge Ruiz.  Cynthia Nardone for Appellant.   Trial judge: Florence Pan.

The Facts:  The police received a 911 call reporting a man with a gun wearing a “black hood, black hoodie, blue jeans” with a “brown complexion” gambling “in a hallway” with others.  When police arrived at the apartment complex, they did not see anyone gambling, but they observed three people standing outside. One wore a black hoodie and blue jeans, a second was Appellant Brown. Upon seeing the police, the man with the hoodie walked away.  Police approached the other two and asked if they would talk to the officers.  They then asked if either man a weapon.  The two said that they did not.

The officers then stated that they might need to frisk the individuals.  One agreed and walked to the fence, positioning himself to be frisked.  Brown followed, but after initially putting his hands up, he put them down again, put them up again, and then put them down for a second time.  Sensing his indecisiveness, one officer suggested that Brown put down the fast food bag he was carrying.  Brown then fled the scene.  As he ran, one officer grabbed his jacket.  Brown “wriggled” out of it and kept running.  The officer subsequently searched it and found a .22 caliber gun.  Brown was apprehended by other officers a few blocks away.

Issue: Did the officers have reasonable, articulable suspicion to seize Brown, and was the warrantless search of his jacket constitutional?

Holding: Yes.  The Court found there was reasonable, articulable suspicion to seize Brown because:  (1) it was a high crime area; (2) police were there in search of a man with a gun, and Brown was with someone who matched the lookout for a man with a gun, and (3) Brown was indecisive, evasive, and tried to flee.   

Police also found that Brown had abandoned his jacket when he wriggled out of it, and so the trial court’s finding that Brown lacked a reasonable expectation of privacy in that jacket was not clearly erroneous.

Of note: The Court’s emphasis on Brown’s association with someone who matched the lookout is somewhat surprising given the Court’s statements in other cases discouraging guilt by association. JB.

Read the full opinion here.

Happy birthday, blog!

Today, the PDS Criminal Law Blog celebrates its first birthday.  We'd like to extend a big thank you to all of our readers and contributing writers.

Once jurors, given a “reasonable efforts” instruction, move on to decide a lesser included offense, the court may not order them back to deliberation on the greater offense unless it first concludes that they have not expended reasonable efforts to reach agreement on that greater offense.

Ronald O. Douglas v. United States, No. 11-CF-790 (decided August 21, 2014)

The Players:  Thompson, Beckwith, Farrell.  Opinion by Judge Beckwith.  R. Michael Labelle for Mr. Douglas.  Trial judge:  Florence Pan.

The Facts:  Mr. Douglas was tried on possession with intent to distribute (PWID) and the lesser included offense (LIO) of possession of a controlled substance after police found almost a pound of marijuana, worth $5,310, inside a car he was driving.  The jury was instructed to consider PWID first, moving on to the LIO only if it was unable to agree on a PWID verdict “after making all reasonable efforts” to do so.  Three hours into deliberations, the jury sent a note indicating it could not reach agreement on PWID.  The trial court expressed doubt that “they’ve made a reasonable effort yet,” and instructed the jury to break for the day and resume deliberations in the morning.  By mid-morning, the jury sent a second deadlock note and asked if it could now consider the LIO.  The court responded, “If you have exercised reasonable efforts and are unable to reach a unanimous verdict on possession with intent, you may consider the charge of possession.”  Within an hour, the jury reached a verdict on the LIO.  The court took the guilty verdict and then, over defense objection, delivered a Gallagher anti-deadlock instruction, see Criminal Jury Instructions for the District of Columbia, No. 2.601(III)(C) (5th ed. rev. 2013), and sent the jury back to continue deliberating the PWID charge.  Eventually, the jury found Mr. Douglas guilty of PWID.

Issue:  Did the trial court unduly coerce the jury by instructing it to reconsider PWID after the jury had twice stated it could not reach a unanimous verdict on that charge and followed the “reasonable efforts” instruction to find Mr. Douglas guilty of the LIO?

Holding: Yes.  “[B]efore a judge may make a jury continue deliberating on a greater charge where that jury has said or implied by its action that it cannot reach a verdict on the greater charge despite reasonable efforts to do so, the judge must be unpersuaded—and the record must make clear that she is unpersuaded—that the jury has, in fact, applied reasonable efforts to the decision.”  Slip Op. at 15 (emphasis added).  Here, the trial court appeared to assume the jurors did expend all reasonable efforts and to believe, wrongly, that it had authority to order them back to deliberations anyway.  In any event, the absence from the record of “the necessary signs that the trial court believed the jury had not exercised reasonable efforts” when it ordered them back to deliberations was dispositive that it had abused its discretion.  Slip. Op. at 14-15.

Of Note:  The DCCA distinguished Jackson v. United States, 683 A.2d 1379 (D.C. 1996), on which the trial court had relied, because in that case, the trial court had expressly asserted that it did not believe the jury expended reasonable efforts before it ordered them back to deliberating the greater offense.  FT.

Read the full opinion here.

Repeat repeat repeat your objections.

Tyrone Jackson v. United States, No. 11-CF-1442 (decided August 7, 2014)

The Players: Glickman, Blackburne-Rigsby, Steadman.  Opinion by Judge Steadman.  PDS for Appellant.  Trial judge: Gerald Fisher.

The Facts:  In this kidnapping and armed robbery trial, police found Christopher McClain in a vacant basement apartment wrapped in duct tape.  McClain claimed that when he arrived at the apartment complex earlier that night to provide a moving estimate, Jackson and two masked men bound and robbed him at gunpoint.  Jackson was found out of breath close to the scene soon after – he claimed that he was jogging but was not wearing workout clothes.  Co-defendant Alex Dickens, the maintenance man for the building, was also stopped running away from the scene.  McClain identified Jackson as his assailant but could not identify Dickens.

Jackson took the stand and told the jury that he came to the scene that night after an acquaintance named “Larry” asked him to come provide back-up security for McClain during a drug transaction.  Jackson testified that when he and McClain arrived at the apartment, three men held them at gun point and robbed McClain.  The defense asserted that McClain was lying about what happened because he faced twenty years in prison if he violated his probation, and therefore did not want police to find out he was involved in a drug deal.

During jury deliberations, the jury searched the contents of a phone found in the back of Dickens’s car, which was parked on the scene.   While the phone itself was introduced into evidence, the contents of the phone were not, and the phone was dead when it was sent to the jury room.  The parties examined the phone and agreed that it contained three pieces of potentially relevant information: Dickens had a contact named “Larry,” he had two e-mails from a “Larry” advertising an event, and he received a phone call from “Larry” at about 3:09 on the date of the offense.

Defense counsel asked the court to voir dire the jury to find out “what discussions” they had about the phone.  He also requested a mistrial, arguing that the extrajudicial information was prejudicial.  Defense counsel asserted that if he had known that the potential mastermind, Larry, had contacted Dickens, he would have “spent more time addressing . . . Dickens’s role in the offense.”  Finally, he requested a strong curative instructive. 

The trial court denied defense counsel’s first two requests but instructed the jury that the contents of the phone were not in evidence and that the jury could not consider that information in its deliberations.

Issue: Did the trial court err in failing to voir dire the jurors or declare a mistrial?

Holding: No.  With respect to the trial judge’s failure to conduct a voir dire of the jurors, the Court emphasized that the trial judge took great pains to find out what information the jury viewed, gave the parties an opportunity to articulate any potential prejudice, and asked for desired remedies.  There was no need to conduct a more in-depth discussion, the Court concluded, particularly given that defense counsel never asked for further inquiry after the jury revealed precisely what information they had viewed on the phone.

With respect to the denial of a mistrial, the Court held that the defense did not suffer significant prejudice from the jury’s exposure to the extraneous information.  If anything, the Court believed that the connection between Larry and Dickens corroborated Jackson’s defense theory.   The Court also noted that any potential link between Dickens and Larry was not critical to Jackson’s defense, and that unlike in other cases where Courts reverse because a jury has been exposed to extrajudicial information, the jury here committed no misconduct.  The cell phone was already in evidence and had been admitted without “limitation.”  Finally, the Court stated that there was no reason to believe the jury failed to follow the limiting instruction, especially given that it acquitted Dickens of the charged offenses.

Of note: 

• The Court’s ruling on prejudice is an interesting one, because the contents of the phone were clearly important to this jury.  The phone was dead when it went to the jury room yet the jury took the time to figure out how to charge it, turn it on, and then spent time exploring its contents.

• You need to make a super duper record to preserve issues.  When the parties learned that the jury had accessed the phone’s contents, defense counsel requested that the court ask the jury “questions about what . . . . discussions” it had with regard to the phone.  The trial court refused, stating that this would be an improper intrusion into the jury’s deliberations.  Despite defense counsel’s request to question the jury, the Court of Appeals held that counsel had not adequately preserved a request for voir dire.

• Specifically, the DCCA found that defense counsel had not adequately preserved a request for voir dire, because he: 1) did not challenge the court’s “improper intrusion” statement; 2) never asked for a voir dire again; and 3) made his initial request at the “very beginning of substantive discussion about what steps to take before any concrete information had been obtained as to what exactly had been accessed.”  JB.

 Read the full opinion here.

It is not a crime to make threatening statements that hinge on the occurrence of an impossible event.

Charles Lewis v. United States, No. 13-CM-321 (decided July 31, 2014)

The Players: Glickman, Beckwith, Nebeker.  Opinion by Judge Nebeker.  McGennis Williams for Mr. Lewis.  Trial judge: Marisa Demeo.

The Facts: Mr. Lewis was arrested for an offense unrelated to the instant appeal, and officers searched him for weapons, handcuffed him, and sat him on a bench.  While Mr. Lewis was on the bench, he became irate with officers and began yelling "derogatory names" at them.  At one point, Mr. Lewis looked at one of the officers involved in the arrest and yelled that the officer "was lucky that [the police] didn't [arrest him] when he had his gun on him[] because he would have blown [the officer's] god-damned head off."  Mr. Lewis's choice of phraseology landed him a charge for attempted threats, and he was convicted of that offense following a bench trial.  The DCCA reversed his conviction on appeal.

Issue: Whether Mr. Lewis's exhortation satisfied the second element of the misdemeanor threat statute--"that the words were of such a nature as to convey fear of serious bodily harm to the ordinary hearer."

Holding: They did not.  The DCCA, channeling its inner sixth grade grammar instructor, held that "appellant's statement could not have induced fear of bodily injury in the ordinary hearer as it was a past conditional statement that hinged on an impossibility--appellant's possession of a gun at the time of arrest."  In other words, because Mr. Lewis could not have traveled back in time to arm himself for his arrest, no reasonable listener would interpret the statement as a threat to shoot the officer.

Of note: Although it is possible to commit the crime of threats by making a threatening statement that is "conditioned upon a future happening," a reviewing court must consider the "likelihood of the condition coming to pass."  To defend against threats charges in such cases, one must be prepared to argue that the condition is unlikely to occur and, thus, the conditional threat would not convey fear of serious bodily harm to the ordinary hearer.  CK.

Read the full opinion here.

The DCCA has vacated its decision in Moody v. United States, 82 A.3d 769 (D.C. 2013). The court will rehear the case in September. Do not rely on the vacated opinion, which dealt with Carter immunity issues.

See the original Moody blog post here.

You can protest… but don’t lock arms.

"National Women's Party picketing the White House" by Harris & Ewing - Library of Congress 

Richard Z. Duffee, et. al.,  v. District of Columbia, Nos. 11-CT-1550+ (decided July 3, 2014)

The Players: Beckwith, McLeese, Newman.  Opinion by Judge McLeese.  Mark Gladstone for Appellants.   Trial judge: Russell Canan.

The Facts: 150 people marched from Lafayette Park to the White House sidewalk as part of an anti-war demonstration.  Because they were a large group and stood chanting with locked arms they blocked the sidewalk, preventing people from having “free access to the White House sidewalk.”  The police told the group to leave.  113 people remained, and all were arrested for failing to obey a lawful order (“FTO”) and “blocking passage.” 

Issue: Is “breach of peace” an element of “blocking passage?”

Holding: No.  The Court concluded that the plain language of D.C. Code § 22-1307 does not require a breach of the peace.  The government must only show that an individual (1) “crowd, obstruct, or incommode” the use of a “sidewalk or the entrance of any public or private building”; and that he (2) continue his obstruction after law enforcement orders him to “cease the crowding, obstructing, or incommoding.” 

The Court found that the legislative history of D.C. Code § 22-1307 supported its conclusion.  Courts interpreting an earlier version of the bill occasionally read a breach of the peace requirement into the statute.  But in 2010, a working group* studying how to best revise the bill drafted new language and stated that the new version should not contain a breach of the peace requirement. The D.C. Council relied heavily on the working group’s report when it enacted a revised statute.  Although the Council altered some of the proposed language, it explained the reason for each change and never suggested that it intended to inject a breach-of-the-peace requirement into the statute.

*The working group was entitled: The Disorderly Conduct Arrest Project Subcommittee of the Council for Court Excellence.

Of Note:

• At oral argument, Appellants attempted to challenge the constitutionality of the statute.  Because Appellants did not brief the issue, the Court declined to reach it.  (See FN 2)
• On appeal, the government conceded that the FTO and blocking passage charges merged, and the Court remanded for an entry of new judgments of conviction on the blocking passage charge.  JB

Read the full opinion here.

You cannot be convicted of carrying a dangerous weapon unless the government proves that you were capable of concealing the weapon on your person while you were carrying it.

In re D.R., No. 11-FS-1320 (decided July 31, 2014)

The Players: Glickman, Fisher, Steadman.  Opinion by Judge Fisher.  Cynthia Nordone for D.R.  Trial judge: Patricia Broderick.

The Facts: During a heated altercation with his neighbors, appellant raised an 18 to 24 inch "sword" or "machete" above his head and threatened to disembowel one of said neighbors.  This conduct led to appellant's conviction for carrying a dangerous weapon ("CDW"), in violation of D.C. Code 22-4504(a), and for a host of other offenses not relevant to the court's decision.

Issue: Did the government present sufficient evidence that the sizable machete wielded by D.R. was "capable of being concealed" on or about his person?

Holding: No.  The record was barren of evidence regarding D.R.'s size or the clothing he was wearing at the time of the incident.  Thus, the government could not prove that the machete was capable of being concealed on or about his person.

Of Note:

• This opinion marks the DCCA's first interpretation of CDW's requirement that the weapon at issue be "capable of being concealed" "on or about" the defendant.
• Following an analysis of the statute's text and legislative history, the DCCA determined that the concealment element referred to whether the weapon was capable of being concealed on/about the defendant at the time of the incident, and not to whether the weapon was capable of being concealed by a hypothetical average person wearing clothing aimed at concealing the weapon (as the Supreme Court had interpreted a separate federal statute with superficially similar language).
• When one's client is charged with CDW for carrying a large weapon, one should argue that the weapon is not capable of being concealed because of its size, the defendant's stature, the clothing worn by the defendant at the time of the incident, or some combination of the above.
• The less clothing your client is wearing at the time of his or her arrest for CDW, the better the odds of victory at trial.
• This opinion does not apply to D.C. Code 22-4504(a)'s prohibitions regarding pistols.  CK.

Read the full opinion here.