A handcuffed arrestee's statement that he would "fuck up" police if they were not police cannot be taken as a threat

Milon C. High, Jr.  v. United States (decided December 24, 2015)

Players:  Judges Fisher and Easterly, and Senior Judge Ruiz.  Opinion by Judge Ruiz.  Paul J. Riley for Mr. High.

Facts:  As Mr. High sat handcuffed on a curb, surrounded by three or four police officers, he "glared" at one officer and said, "take that gun and badge off and I'll fuck you up."  He then made a second statement, "something to the effect of, too bad it's not like the old days where fucking up an officer is a misdemeanor."  For making these statements, Mr. High was convicted of attempted threats.

Issue:  Was there sufficient evidence that the statements would cause an ordinary hearer to believe that the threatened harm would occur?

Holding:  No.  The statements "are most aptly described as an expression of exasperation or resignation over the fact that appellant had just been arrested by police officers."  On their face, the statements expressed only that if the officer was someone other than a police officer, or if  the penalties for assaulting an officer were not so severe, then Mr. High might want to "fuck up" the officer.  In other words, Mr. High was expressing his displeasure with the way he was being treated, but he did so by stating the reasons why he would not assault the officer despite Mr. High's desire to do so.  The context of the statements confirms they were not threatening:  Mr. High was handcuffed, surrounded by three or four police officers, and spoke in a "conversational tone."  There was also no suggestion that the officer at whom the statements were directed felt threatened.  DG

Read full opinion here.

A court should grant a motion to sever if a co-defendant would provide “officially exculpatory” testimony.

Omar Rollerson and Rolita Burns v. United States (decided December 17, 2015).

Players: Chief Judge Washington, Judge Easterly, Senior Judge Belson. Opinion by Chief Judge Washington. PDS for Mr. Rollerson. Mindy A. Daniels for Ms. Burns.

Facts: Omar Rollerson and Rolita Burns were prosecuted together for two separate events that the government contended stemmed from Ms. Burns’ attempt to determine who had slashed the tires on her car. The first incident, which the Court labeled, “The Elvans Road Incident,” began in the early hours of June 18, 2012. Stefanie Harrington got into an argument with Ms. Burns when Ms. Harrington believed Ms. Burns had accused her of slashing the tires. They continued arguing until Mr. Rollerson intervened, but then the group left the apartment and went outside to the parking lot. When Mr. Rollerson saw that Ms. Harrington had a knife, he retreated and then Ms. Harrington tossed it. But Mr. Rollerson picked it up and approached Ms. Harrington. An unidentified man stopped Mr. Rollerson from getting closer to Ms. Harrington, so he threw the knife at her, hitting her arm. Ms. Burns and Ms. Harrington continued yelling at each other, and Robert Teamer heard Mr. Rollerson say, “[F]orget this, I’m about to go get that,” which he believed to be a reference to a gun that Mr. Rollerson had mentioned earlier. Ms. Harrington and Mr. Teamer then returned to Ms. Harrington’s apartment.

Shortly thereafter, a man “busted inside the door” and said, “I’m going to blow a hole in you guys.” Mr. Teamer said that this man then hit him in the nose with the gun and left. At trial, Ms. Harrington identified Mr. Rollerson as the person who hit Mr. Teamer, but Mr. Teamer testified that Mr. Rollerson, as he appeared at trial, did not look like the man who came to Ms. Harrington’s door the night of the burglary.

The second incident, which the Court identified as “The Bowen Road Incident,” occurred later that same day, around 2:00 p.m. Ms. Burns got into a verbal altercation with Jasmine Patterson over whether Ms. Patterson had slashed Ms. Burns’s tires. As the argument continued, Mr. Rollerson said to Ms. Burns, “F that, we’re going to get Nellie and them,” which Ms. Patterson believed meant they were going to go get a group of people to fight them. Mr. Rollerson and Ms. Burns left and drove away in a van. Ms. Patterson, with several other people, walked towards Ms. Patterson’s grandmother’s house. Along the way, Ms. Patterson saw the van return and Mr. Rollerson and Ms. Burns exit with a group of five girls, whom Mr. Rollerson referred to as his nieces. They caught up to Ms. Patterson, threw her to the ground, and began to beat her, including hitting her with a log. Ms. Patterson’s boyfriend attempted to approach, but Mr. Rollerson warned him to not to get involved or else he was going to “get that out of the car and smoke [him].” Ms. Burns, Mr. Rollerson and the five other girls left and Ms. Patterson got up and went to her grandmother’s house, where her grandmother called the police. After speaking with police, Ms. Patterson went to the hospital by ambulance to receive treatment for a cut over her right eye that required nine stitches.

The jury convicted Mr. Rollerson of the following charges for the Elvans Road incident: first-degree burglary while armed, ADW, two counts of possession of a firearm during a crime of violence, and felony threats. For the Bowen Road incident, the jury convicted Mr. Rollerson of assault with significant bodily injury and felony threats. Though tried together, Ms. Burns only faced charges for the Bowen Road incident and the jury convicted her of assault with significant bodily injury.

Issue 1: Whether the trial court erred in denying Mr. Rollerson’s motion to sever his trial from Ms. Burns’s trial in order to be able to call her as a witness to testify he was not involved in the Elvans Road Incident?

Holding: Yes. While a trial court has discretion whether to grant a motion to sever, a court must grant such a motion if a defendant can show there will be “manifest prejudice” from being tried jointly. Under Jackson v. United States, 329 A.2d 782 (D.C. 1974), when a defendant wants to sever a trial from a co-defendant in order to have that person testify in his defense, the court should grant the motion if it has been established that the co-defendant is 1) likely to testify and 2) the testimony will be “substantially exculpatory.” Here, the proffer was that Ms. Burns would testify that Mr. Rollerson was not present for the Elvans Road Incident. Although the trial court concluded that she was likely to testify and that her testimony would be “officially exculpatory,” it declined to the grant the motion mainly because the government offered to enter into a stipulation with the defense about what her testimony would have been. The Court of Appeals held that was an abuse of discretion. First, a stipulation is not a valid substitute for live testimony because it forecloses the jury’s ability to hear a witness and determine credibility. The Court stated that only in “very limited circumstances” can a party be forced to accept a stipulation in lieu of live testimony or tangible evidence. This was not such a case. Second, the Court emphasized that judicial administration and concerns for judicial efficiency do not outweigh a defendant’s right to a fair trial and are not valid reasons by themselves to deny a motion to sever. And third, the Court of Appeals concluded that when the trial court found that Ms. Burns’s testimony would have been “officially exculpatory,” that was sufficient to meet the requirement from Jackson that her testimony would have been “substantially exculpatory.” Once the court determined that Ms. Burns was likely to testify and that her testimony would have been “officially exculpatory,” the court should have granted the motion. Failure to do so was an abuse of discretion, resulting in reversal of Mr. Rollerson’s convictions from the Elvans Road Incident.

Issue 2: Whether the trial court erred in denying Ms. Burns’s motion to sever the Elvans Road incident from the Bowen Road incident?

Holding: No. Ms. Burns contended the two incidents should have been tried separately because otherwise she would suffer undue prejudice since most of the charged conduct related only to Mr. Rollerson and she was not even charged in the first incident. However, the Court of Appeals determined the trial court did not abuse its discretion. The Court reasoned that though she was not charged for both incidents, she played a central role in both, as the government’s theory was it was her desire to learn who had slashed her tires that led to both incidents. While a trial court should sever charges when one defendant played a “de minimis” role in one incident as compared to another, the Court stated that simply the fact Burns was not charged did not mean her role was “de minimis” in the Elvans Road Incident. Also, the Court said that the trial court “properly protected Burns from manifest prejudice” by giving the jury precise instructions, both during the trial and during jury instructions, on how to use the evidence that had been presented against each defendant and that the evidence from Elvans Road only went to certain counts.

Issue 3: Was the evidence sufficient to convict both Mr. Rollerson and Ms. Burns of assault with significant bodily injury?

Holding: Yes. To establish “significant bodily injury,” there had to be evidence of an injury that would require “hospitalization or immediate medical attention.” The Court determined that Ms. Patterson’s injuries met that definition due to her suffering the injuries in a “violent group attack” where she was pushed to the ground, stomped, punched in the face, and hit in the head with a log. There was evidence she was a “bleeding mess,” and went to the hospital to receive nine stitches. Also, the government presented to the jury photographs of her injuries and her medical records.

Of Note:

• This is a good case to use any time the government attempts to foreclose the defense from calling a witness or introducing evidence by offering a stipulation. The Court of Appeals very clearly indicates a defense does not have to accept such an offer, and that a trial court should not use the offer by itself as a reason to deny a defense motion. 

• A trial court should grant a motion to sever if there has been a showing the co-defendant would be likely to testify, and that the testimony would be “substantially exculpatory.” This case indicates that the trial court does not have to use those exact words so long as it is established that the testimony meets the standard. However, when moving to sever from a co-defendant on the basis of wanting the co-defendant to testify, it is likely a good idea to use the exact language from Jackson in order to avoid any confusion. This Case reinforces that once a trial court determines that the two Jackson factors have been met, a trial court should grant the motion. 

• Similarly, if trying to sever a trial from a co-defendant when there are separate incidents, just the fact your client was not charged in one of the incidents is not sufficient by itself to establish your client had a “de minimis role.”

• There was a fourth issue raised – whether the court should have merged Mr. Rollerson’s convictions for PFCV. The Court declined to reach that issue after ruling in his favor on issue one and reversing those convictions.  BM

Read full opinion here.

Just because there’s a stolen phone in a store you work at doesn’t make you guilty of receiving stolen property

David J. Brown v. United States (decided December 10, 2015)

Players: Associate Judges Blackburne-Rigsby and Thompson, Senior Judge Reid.  Opinion by Judge Reid.  Cecily E. Baskir for Mr. Brown.  Trial Judge: John McCabe.

Facts: Martha Bass was walking down North Capitol Street when someone grabbed her cell phone and ran off.  Using a GPS tracker on the phone, Ms. Bass and the police located the phone at an electronics repair shop.  David Brown opened the door.  After the police told him they had reason to believe a stolen phone was in the store, he went to the back of the store, brought out Ms. Bass’s phone, and asked if that was what they were looking for.  After initially telling the police the phone had arrived earlier that day in the shop and providing an invoice for the phone, he eventually told the police that he had fabricated the invoice in order to protect the store, that he knew who had brought the phone to the store, and would help the police if they did not arrest him.  

When Mr. Brown failed to make good on his promise of assistance, the police obtained a search warrant for the shop and located an additional stolen phone.  This phone belonged to Mary Register, who told the police her phone had been stolen over a month before the search warrant was executed.  The government presented no evidence at trial as to precisely who owned the store, and there was testimony that numerous people worked there and brought various pieces of property on to the premises. 

Issue 1:  Did the trial court abuse its discretion in denying Mr. Brown’s Batson challenge to the prosecution’s use of six of seven preemptory strikes against black venire members?

Holding:  No.  The defense did not meet its burden of persuasion that the race-neutral explanations given by the prosecution were pretextual.  With the exception of one strike, the defense made only the conclusory assertion that most of the strikes (six out of seven) were against black venire members.  With respect to a strike justified on the basis of the venire member’s prior criminal conviction, the trial court did not err in finding that the stricken individual was sufficiently differently situated from other venire members who had been the victim of a crime or who had relatives who had been convicted of a crime.  Finally, the DCCA rejected Mr. Brown’s argument on appeal that the trial court abused its discretion because the prosecution’s race-neutral reasons were primarily based on the body language and demeanor of the stricken venire members.

Issue 2: Was there sufficient evidence that Mr. Brown: (1) knew or had reason to believe Ms. Bass’s phone was stolen, and (2) had knowledge and constructive possession of Ms. Register’s phone.

Holding: As to (1), yes.  There was competent evidence that Mr. Brown admitted knowing Ms. Bass’s phone was stolen to the police when he admitted to producing the fake invoice.  As to (2), no.  The government failed to prove beyond a reasonable doubt that Mr. Brown constructively possessed Ms. Register’s phone or that Mr. Brown knew or had reason to believe the phone was stolen.  The evidence did not establish how the phone came to be in the store, and there was evidence that the items in the store were controlled by multiple people who worked there.

Note: The DCCA also reversed Mr. Brown’s conviction for trafficking in stolen goods because the trafficking statute requires the government to prove two or more instances of receipt of stolen property.  CP

Read full opinion here.

When Petitioner Alleges “Classic” Ineffectiveness Trial Court has Little Discretion to Deny Evidentiary Hearing

Bellingerv. United States (Decided Nov. 25, 2015)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Farrell. Opinion by Judge Glickman; concurrence by Judge Farrell. Michael J. Anstett and Douglas W. Baruch for Mr. Bellinger. Trial Judge: Russell F. Canan.

Facts: Mr. Bellinger was convicted, after two mistrials in which the jury hung, of assault with intent to kill against Lorraine Jackson. The government’s theory was that Mr. Bellinger had shot Ms. Jackson in retaliation for acting as a police informant. At trial, Mr. Bellinger had presented an alibi defense. After his first trial, counsel for Mr. Bellinger, the Public Defender Service (PDS), moved to withdraw based on a conflict of interest, and Phyllis Baron then represented Mr. Bellinger in the two subsequent trials.

Again, new counsel was appointed for sentencing, and that counsel filed a motion with the trial court alleging that the basis for PDS’s withdrawal was that the defense had learned that the gun used to assault Ms. Jackson matched a gun used a few weeks later in a murder with which another PDS client, Randall Mack, was charged. The trial court ordered that the ballistics evidence from the two incidents be provided to a defense expert, and after years of litigation, a defense expert reported that shell casings recovered in the Jackson shooting matched the gun seized from Mack.

Mr. Bellinger filed a motion for a new trial under D.C. Code §23-110 (five years after receiving the expert report), arguing that Ms. Barron had been ineffective for failing to investigate the ballistics match and use it to present a third-party-perpetrator defense. Mr. Bellinger stated in an affidavit that (1) prior to his second trial, Ms. Barron told him that she had information that a gun connected to the Mack case would be linked to his case; (2) that she would investigate the issue further; (3) that neither Barron nor her investigator pursued any investigation into the issue; and (4) that Barron falsely told him that the prosecutor had refused to turn over any ballistic evidence and the court had denied her requests for ballistics discovery.

Mr. Bellinger also argued that the government had violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over information linking the ballistics in the two cases.

Issue 1: Did the trial court abuse its discretion in summarily denying Mr. Bellinger’s ineffective assistance of counsel claim without first holding an evidentiary hearing?

Holding: Yes. A trial court can only deny an evidentiary hearing where a petitioner’s claims are (1) palpably incredible; (2) vague or conclusory; or (3) would not entitle the petitioner to relief. Here, if true, the facts alleged by Mr. Bellinger would be a “classic form of constitutionally deficient performance.”

In so concluding, the DCCA made three important points: First, the trial court erred in finding that a delay of five years between the expert’s report of a match and Mr. Bellinger’s 23-110 filing undercut his credibility such as to render a hearing unnecessary. Second, the trial court erred in concluding that Ms. Barron’s otherwise capable representation in trial would negate a constitutionally deficient failure to investigate exculpatory information. Third, the fact that defense counsel, properly informed by a full investigation into the ballistics evidence, could have made a strategic decision not to present the evidence would not excuse failing to investigate at all.

Additionally, the trial court erred in concluding that because the government, in its proffer in opposition to Mr. Bellinger’s 23-110 claims, alluded to evidence that the gun recovered from Mack was “communal”—meaning others besides Mack had access to it—Mr. Bellinger could not show he was prejudiced by Ms. Barron’s failure to investigate. The DCCA found the record insufficient to support a conclusion of no prejudice. Specifically, the government failed to proffer what, if any, admissible evidence it might have had at the time of Mr. Bellinger’s trial to establish that the gun was “communal” and that Mr. Bellinger would have had access to it.

Issue 2: Did the trial court abuse its discretion in summarily denying Mr. Bellinger’s Brady claim without first holding an evidentiary hearing?

Holding: No, BUT, should Mr. Bellinger be able on remand to develop a proffer that the government in fact possessed exculpatory information about a weapons match, the trial court should revisit Mr. Bellinger’s request for an evidentiary hearing on his Brady claim.

The trial court was not required to hold an evidentiary hearing because Mr. Bellinger did not proffer any evidence that the government actually possessed information that the gun recovered from Mack matched the weapon used against Ms. Jackson. The DCCA rejected Mr. Bellinger’s claim that the government should have possessed this information, even if it, in fact, did not.

Issue 3: Did the trial court abuse its discretion, in denying Mr. Bellinger’s requests for discovery relating to his Brady claim?

Holding: No, BUT, should Mr. Bellinger make more targeted requests relating specifically to what information the Metropolitan Police Department (MPD) had in its possession about the weapons match, such a request should be granted, and may allow Mr. Bellinger to renew his request for an evidentiary hearing on his Brady claim. The DCCA highlighted that starkly missing from the government’s proffers in opposition to Mr. Bellinger’s Brady claim was any information about what was known to MPD, as opposed to the trial prosecutors themselves. CP

Read full opinion here.

"Emergency Aid" Exception Did Not Justify Warantless Entry and No Exception to the Exclusionary Rule Applies, Court Splits on Sufficiency of the Evidence of Possession of Guns Found in Apartment

Jamel Evans v. United States (decided August 6, 2015)

Players: Associate Judges Beckwith and McLeese, Senior Judge Ferren. Opinion by Judge McLeese, concurring opinion by Judge Ferren, opinion concurring in part and dissenting in part by Judge Beckwith.  Murray Kamionski for Mr. Evans.  Trial Judge: John McCabe

Facts: Police responded to Jamel Evans’s 911 call to report an assault and found Mr. Evans, who was bleeding from the head, and Shantay Taylor, who had blood on her clothes, arguing in the parking lot of an apartment building. Ms. Taylor said that Mr. Evans had punched her several times; Mr. Evans said that Ms. Taylor had hit him, scratched him, and assaulted him with an ashtray while in his apartment. Neither indicated that anyone else was involved in the altercation or present in the apartment. As other officers talked to Mr. Evans and Ms. Taylor, Officer Wendt arrived and upon seeing blood outside the open door of Apartment 201, entered and went through each room of the apartment. In one bedroom he saw a gun inside an open closet and .38 caliber ammunition on a dresser; in the second bedroom he saw no contraband.

Police subsequently obtained a search warrant based on information about the altercation, the discovery of the firearm and ammunition, and Ms. Taylor’s statement that Mr. Evans had bagged up marijuana in the apartment that morning. In the first bedroom (described as messy with an unmade bed), police found a shotgun in a closet containing men’s clothing and found .38-caliber ammunition and a pill bottle labeled “Yvette Murray” on top of a dresser. In the second bedroom, on top of an animal cage, they found a rifle, 9-mm ammunition, and an XL men’s jacket with six ziplocks of marijuana in the pocket. Somewhere in the apartment was a judicial summons for “Christina Brunson” with the apartment’s address. Mr. Evans was convicted of attempted possession of both guns and the .38-caliber ammunition.

Issue 1: Did Officer Wendt’s initial warrantless search fit within the “emergency aid” exception to the warrant requirement?

Holding 1: The warrantless entry violated the Fourth Amendment and the “emergency aid” exception did not apply. Without deciding whether police needed probable cause or only a reasonable basis to believe that entry was necessary to provide emergency aid to an injured occupant or to protect an occupant from immediate injury, the Court held that even under the “reasonable basis” standard, the police lacked adequate reason to believe that immediate entry was necessary to provide emergency aid. Officer Wendt did not have a specific reason to believe that an unknown third party was in the apartment and needed immediate help because the accounts of Mr. Evans and Ms. Taylor did not suggest that anyone else was inside and Mr. Evans’s bleeding head accounted for the blood outside the apartment.

Issue 2: Was the evidence nonetheless admissible under the “independent source” doctrine because the items were seized pursuant to a subsequent search warrant?

Holding 2: No. The Court held that “procedural unfairness” precluded affirmance based on the “independent source” theory because the government had not argued it at trial and the trial court therefore had not made the factual findings relevant to the theory. The Court also declined to conclude in the first instance that the officers would have gotten a warrant independent of the initial entry because the record was not clear and the Court could not decide an issue of fact, particularly where Mr. Evans had not had the opportunity to develop a record on the issue. Finally, the Court concluded that a remand would be inappropriate because the government bore the burden to prove admissibility and did not deserve a second bite at the apple.

Issue 3: Was the evidence nonetheless admissible under the “good faith” exception?

Holding 3: No. The Court held that the “good faith” exception was inapplicable under Smith v. United States, 111 A.3d 1 (D.C. 2014), because the search warrant was based on information obtained in the unlawful entry and did not operate to attentuate that illegality.

Issue 4: Was the evidence sufficient to find beyond a reasonable doubt that Mr. Evans constructively possessed the guns and ammunition?

Holding 4: Yes. Judge McLeese concluded for the Court that the evidence was sufficient to find that Mr. Evans possessed the items because he described the apartment as his, he and Ms. Taylor (but no one else) had been in the apartment shortly before police arrived, the items were in plain view inside the bedrooms, both bedrooms contained men’s clothing, there was no evidence that any other man had control over the apartment, there were no women’s clothes in the apartment, and a reasonable factfinder could conclude that Mr. Evans lived in the first bedroom and that the clothes in the closet were his. Judge Ferren, in a concurring opinion, offered a more simple path to the same conclusion: a factfinder generally may infer that a person constructively possesses items in his home, and here, no facts diluted that inference.

Concurring/Dissenting Opinion: Judge Beckwith joined the majority’s Fourth Amendment rulings and also agreed that the evidence was sufficient to support Mr. Evans’s conviction for possession of the firearm and ammunition in the first bedroom, but disagreed that it was sufficient to show that he constructively possessed the gun in the second bedroom. Judge Beckwith pointed out that the second gun was not in Mr. Evans’s bedroom, was not in plain view, and was not recovered in proximity to Mr. Evans’s personal items, and she noted that evidence linking Mr. Evans to the first gun was insufficient to surmount the circumstances casting doubt upon his possession of the second gun.

Of Note: The decision has useful language about the procedural unfairness of affirming on alternative grounds not asserted in the trial court.  SS

Read full opinion here.

Extraction of contraband from arrestee’s sensitive area deemed unconstitutional for failure to involve trained medical personnel

Olushola Akinmboni v. United States (decided November 19, 2015).

Players: Associate Judges Glickman, Blackburne-Rigsby, and McLeese.  Opinion by Judge McLeese.  Vincent A. Jankoski for Mr. Akinmboni.  Trial Judge: Ronna L. Beck.

Facts:  MPD arrested Mr. Akinmboni and transported him to a Superior Court cellblock, where the deputy marshal on duty searched him for weapons and contraband.  When the deputy felt a (foreign) object in Mr. Akinmboni’s groin area, the deputy took Mr. Akinmboni to a private area to conduct a strip search.  The deputy confiscated a baggie of marijuana from near Mr. Akinmboni’s groin.  In addition, a plastic baggie, later found to contain marijuana, was protruding from Mr. Akinmboni’s anus.  When Mr. Akinmboni removed the baggie, it revealed yet another baggie that the deputy directed him to remove.  When he did so, a third baggie appeared.  In total, Mr. Akinmboni removed five baggies from his anus, each containing contraband.  At no point during the extractions did the deputy seek the involvement of trained medical personnel.  Mr. Akinmboni was later charged with and convicted for possessing the various baggies of contraband.

Issue: Whether the deputy violated the Fourth Amendment by requiring Mr. Akinmboni to extract baggies from his anus without the involvement of trained medical personnel.

Holding: Yes. The government bears the burden to show that searches and seizures are reasonable both in scope and execution.  Determining whether the manner of search or seizure is reasonable requires balancing the government’s needs against the invasiveness of the intrusion.  Where a search or seizure involves removing items from a sensitive area, the reasonableness of the method depends in part on hygiene, training, emotional and physical trauma, and the availability of alternate methods.  Here, as in United States v. Fowlkes, No. 11-50273, 2015 WL 5667555 (9th Cir. Sept. 28, 2015), State v. Barnes, 159 P.22d 589 (Ariz. Ct. App. 2007), and United States ex rel. Guy, v. McCauley, 385 F. Supp. 193 (E.D. Wis. 1974), the Government has not shown that the extraction of baggies from Mr. Akinmboni’s anus was reasonable without medical personnel, in light of known risks to his health and safety. 

Of Note:

• This case may be cited as general authority for the proposition that the government bears the burden of establishing the reasonableness of its searches and seizures.  The Court was unwilling to infer reasonableness from a number of circumstances identified by the government, going as far as to question whether the U.S. Marshals Service’s policy authorizing the deputy’s behavior adequately accounted for the prisoner safety concerns at issue.  See Op. at 15 (“[T]he United States presented no information about the rationale or basis for the policy in question.”).

• MPD already requires that body cavity searches be conducted by medical professionals.  See General Order 502-01, “Transportation and Searches of Prisoners,” at 9, available at https://go.mpdconline.com/GO/GO_502_01.pdf (last accessed, Nov. 19, 2015).

• Finally, while this case focused on the  constitutionality of the deputy’s orders in light of the fact that no medical professional was present, the Court made clear that such presence is neither necessary nor sufficient in all cases for a sensitive cavity extraction to be deemed constitutional.  Op. at 14-15.  WC

Read full opinion here.

Police interrogation tactics threatening prison rape and requiring a confession before granting access to an attorney render confession involuntary

 Jalonte Little v. United States (decided November 12, 2015).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Beckwith.  Debra Soltis and Paul Kiyonaga for Mr. Little.  Trial Judge: Ronna L. Beck.

Facts: Police arrested eighteen-year-old Jalonta Little in connection with an attempted carjacking and brought him to the stationhouse for questioning.  Detective Joe Crespo read Mr. Little his rights, which Mr. Little voluntarily waived.  For the next two hours, Det. Crespo used a number of coercive interrogation tactics in an attempt to elicit a confession from Mr. Little.  He falsely told Mr. Little that several witnesses identified him as the perpetrator, falsely told Mr. Little that police recovered his fingerprints from the vehicle, and offered illusory promises of leniency if the eighteen-year-old confessed to the crime.  Mr. Little steadfastly denied involvement.  Det. Crespo upped the pressure, informing Mr. Little that he risked sexual assault should he go to prison, that he would be incarcerated in a faraway prison while his girlfriend forgot about him and moved on to someone new, and that his son would never visit him.  Still, Mr. Little did not confess.  Det. Crespo had one last trick up his sleeve.  He told Mr. Little that he would arrange a meeting with his at-this-point hypothetical attorney before seeking an arrest warrant, to which Mr. Little asked, “So where my attorney at?”  Crespo responded that Mr. Little would not see an attorney until after arraignment, and before he could set up the meeting Mr. Little had to tell him what happened—he had “to have some meat to put on the table.”  Mr. Little confessed two minutes later.

Issue: Was Mr. Little’s confession voluntary?

Holding:  Looking at the totality of the circumstances, the Court determined it was not.  Two aspects of the interrogation stood out as “most coercive.”  First, the Court found Det. Crespo’s comments urging Mr. Little to confess in order to avoid sexual assault in prison “offensive to a civilized system of justice.”  The comments were similar to those that rendered a confession involuntary in Arizona v. Fulminate, 499 U.S. 279, 287 (1991) (where police told Mr. Fulminate they would protect him from fellow inmates only if he confessed).  Second, the Court found that Det. Crespo’s comments to Mr. Little that he would not have access to an attorney until after arraignment and that he had to “put some meat on the table,” i.e. confess, before an attorney would be provided were “unquestionably coercive.”  At that point, “any assumption of continued voluntariness that stemmed from Mr. Little’s signing of the Miranda rights form faded.”  These two tactics, coupled with the other coercive tactics employed by the police, such as lying to Mr. Little about the evidence against him and threatening prosecution for crimes they openly thought he did not commit, proved Mr. Little’s confession involuntary. 

Of Note: 

• In footnote 9, the Court notes that it need not decide whether Mr. Little’s question, “So where my attorney at?” was an invocation of his right to counsel.  The Court did note, however, that this statement “conveyed essentially the same message as the statement the Supreme Court assumed was an invocation of rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981).” 

• In footnote 16, the Court held that while the harmless error rule applies to erroneously admitted confessions, “a confession is like no other evidence” and “the risk that the coerced confession is unreliable, coupled with the profound impact that the confession has on the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.”  Thus, the government “sensibly” did not argue that the admission of the involuntary confession was harmless.  DH

Read full opinion here.    

For Malicious Destruction of Property, Defendant Had to Be Aware of a Plain and Strong Likelihood That He Would Damage a Door When He Tried to Break It Open

Lawrence N. Harris v. United States (decided October 29, 2015)

Players: Associate Judges Glickman and Easterly, Senior Judge Ruiz. Opinion by Judge Ruiz. Dissent by Judge Glickman. Jeffrey L. Light for Mr. Harris. Trial judge: Marisa J. Demeo.

Facts: In the wee hours of the morning, Mr. Harris’s mother, with whom he lived, repeatedly called police to report Mr. Harris was “acting out” and under the influence of PCP. Police ultimately escorted Mr. Harris from the house. He returned and hid behind the bed in his basement room, but was discovered by his mother and made to leave again. The next time he returned, he found the front door locked and repeatedly kicked it, causing damage to the door panel, hinges and metal door frame. The damage was only visible from the inside. The trial court convicted Mr. Harris of malicious destruction of property, finding that he either “[1] intended to damage or destroy the property or [2] was aware that his conduct created a substantial risk of harm to that property, but engaged in that conduct, nonetheless.”

Issue: Was there sufficient evidence that Mr. Harris acted “maliciously” in kicking and damaging the door?

Holding: No. “To support a conviction for malicious destruction of property, the trial court must find that the defendant either intended to cause the harm to the property or acted willfully and wantonly, with the awareness of the ‘plain and strong’ likelihood of that harm.” First, there was insufficient evidence to support the trial court’s finding of guilt on grounds that Mr. Harris intended to damage the door, because the court also expressly found that the evidence equally supported the possibility that Mr. Harris did not intend damage, but only to get back in. Where the evidence was in such “equipoise,” it is insufficient for conviction beyond a reasonable doubt. Second, while Mr. Harris committed a “wanton and willful act” by repeatedly kicking the door in a way that he should have known would damage it, more than mere negligence is required. Because Mr. Harris could not see that the interior side of the door was being damaged by his kicks, there was insufficient evidence to find that he “acted with awareness of a plain and strong likelihood” that the kicking “may result” in damage.

Dissent: Judge Glickman dissented, relying on an earlier case that upheld a malicious destruction of property conviction for kicking a door in a manner that caused substantial damage. The majority distinguished the case on grounds that it had undertaken no consideration of the issue in this case: whether the door-kicking was done with “malice.”

Of note: Both the majority and dissenting opinions left open the question of whether a co-tenant whose name is on the lease is privileged to use reasonable force to gain entry to his own home. FT

Read full opinion here.

Breaking: DCCA goes en banc to consider right to jury trial for deportable misdemeanors

The DCCA granted rehearing en banc this past Friday in Bado v. United States.  Bado held that the defendant in a misdemeanor case had a right to a jury trial where a conviction would be deemed an "aggravated felony" under federal immigration law and render the defendant deportable.  We first blogged about Bado here.  Given that Bado managed to produce four different opinions (from only three judges), perhaps rehearing en banc is not too surprising.  The panel opinion has now been vacated, so for now defense counsel should be requesting jury trials (assuming a jury trial is in your client's interest) in any misdemeanor case in which deportation is a possible outcome.

Contents of Police File from Decedent’s Prior Conviction Not Material for Brady Purposes

Ellsworth S. Colbert v. United States (decided October 22, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Newman. Opinion by Judge Thompson. Dissenting opinion by Judge Beckwith. Jenifer Wicks for Mr. Colbert. Trial judge: Herbert B. Dixon, Jr.

Facts: Ellsworth Colbert got into a fight with another man and the other man died of stab wounds. Colbert argued that he acted in self-defense, but he was convicted of manslaughter while armed, ADW, and CDW. The decedent had a prior conviction for ADW in North Carolina. Mid-trial, the prosecution informed the judge and defense counsel that it had received a police investigative file from that case. When the judge asked the defense what information it wanted to know about the North Carolina conviction, other than the nature and date of the offense, defense counsel asked only about the type of weapon used. The defense did not specifically request access to the file or request more time to investigate. The judge never ruled on whether the government had to disclose the North Carolina file, and the parties ultimately stipulated to the prior conviction and the fact that the decedent had used a gun.

During deliberations, the jury asked whether all of the elements of the respective homicide offenses charged must “be true at the same point in time,” or whether “all elements [could] be true at some point in time, though not necessarily at the same point in time?” The judge directed the jury to the elements of the offenses and instructed it to pay attention to any language referring to timing.

Issue 1: Did the government violate Brady by failing to turn over the police investigative file relating to the decedent’s prior conviction?

Holding 1: No. Colbert failed to demonstrate that the contents of the file were material, where the jury heard evidence from three witnesses about prior violence on the part of the decedent, where evidence about the North Carolina conviction was admitted pursuant to stipulation, and where the defense was able “to argue extensively in closing that the decedent had a violent disposition.”

Issue 2: Was it plain error for the trial court to respond to the jury’s note by referring the jury back to the instructions on the elements of the offenses, rather than instructing that with regard to manslaughter, “all elements must be true at the same time”?

Holding 2: No. Even assuming Colbert did not waive the challenge to the instruction, the trial court’s response to the jury note was not plainly erroneous, because “there was no indication in the jury note that the jury was misinterpreting the court’s instructions or was misconstruing the elements of a crime.” Nor could the Court “discern how appellant’s substantial rights were adversely affected” by failure to give the instruction he requested on appeal.

Of Note:

• Judge Beckwith dissented from the Court’s Brady holding, arguing that the “materiality determination . . . is genuinely hampered by the fact that the trial court did not review the evidence as potential Brady material and that we do not know what that evidence is.” She would have remanded to the trial court “with instructions that it place the North Carolina file in the record and assess the file’s materiality under Brady,” permitting the Court of Appeals “to conduct a de novo review of the trial court’s appraisal of the Brady information with the benefit of the actual evidence.”

• The dissent observed that the defense could not “have waived his right to challenge the government’s failure to disclose a file when he did not know what the government knew,” and noted that the government’s Brady obligation to disclose information favorable to the defense “exists with or without a request by the defendant.”  MW

Read full opinion here.

Judge Can't Wear Two Different Hats -- A Judge Ruling on a Motion To Withdraw a Guilty Plea Cannot Resolve a Factual Dispute Based on His Own Recollection of What Happened at the Plea Hearing

Jose Zalmeron v. United States (decided October 29, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Belson. Opinion by Judge Beckwith. PDS for Mr. Zalmeron. Trial judge: Lee Satterfield.

Facts: Mr. Zalmeron pleaded guilty before Judge Satterfield back in 1994 in a drug case. Twenty years later, he moved to withdraw his plea on the ground that he had not been advised that his conviction could cause him to be deported. Transcripts from the 1994 plea were unavailable. Without hearing from the government, Judge Satterfield denied the motion to withdraw, stating "[u]pon review of the chambers file the Court recalls" that it did advise Mr. Zalmeron of the potential immigration consequences of his plea. Mr. Zalmeron than moved for disclosure of the chambers file, both because he asserted a right to review the evidence on which the ruling was based and to allow for appellate review of the ruling. The government then chimed in, suggesting that disclosure of the chambers file was unnecessary because the court's ruling was based on the judge's own "recollection," which “exists separate and apart from the documents in the chambers file."  Judge Satterfield agreed with the government and denied the request to disclose the chambers file.  Mr. Zalmeron then moved to vacate the order and for an evidentiary hearing before an independent judicial officer, asserting that Judge Satterfield could not serve as both witness and factfinder.  And, because Judge Satterfield was now Chief Judge of the Superior Court, Mr. Zalmeron argued that all of the Superior Court judges were subject to recusal, and the hearing should be in front of a DCCA judge sitting by designation.  Judge Satterfield did not do any of that, and Mr. Zalmeron appealed.

Issue 1:  Is Mr. Zalmeron entitled to a reversal or a remand on his claim that he should be allowed to withdraw his plea?

Holding 1:  After some concessions by the government, he is entitled to a remand, but not an outright reversal.  The government did not argue that Judge Satterfield's claimed "recollection" was sufficient to support the denial of the motion to withdraw in the face of a statutory presumption that the required immigration warnings were not given.  A remand rather than a reversal was warranted, however, because the government did not waive its right to present additional evidence that Mr. Zalmeron received the required warnings.  The sequence of events in the Superior Court did not clearly put the government on notice that the failure to adduce additional evidence at that time would amount to a waiver.

If the government seeks to rely on Judge Satterfield's recollection, however, then binding precedent dictates that the hearing must be in front of a different judge because Judge Satterfield cannot be both witness and factfinder.  Apparently agreeing with Mr. Zalmeron that all the Superior Court judges would be recused given the powers the Chief Judge has over their assignments and working conditions, the DCCA would leave it up to the Superior Court to determine whether a new judge should be drawn from either the DCCA or the federal district court.

Issue 2;  Did the twenty year delay in Mr. Zalmeron seeking to withdraw his plea warrant denial of his motion?

Holding 2:  No, but any unexcused delay is a factor that the court can take into account in ruling on the motion.  The text of the statute authorizing withdrawal of guilty pleas in these circumstances, D.C. Code section 16-713, does not contain a time limitation, and it would be improper for the court to read such a limitation into the text.  Any period of unexplained delay, however, may be taken into account when the factfinder considers the credibility of Mr. Zalmeron's claim. DG

Read full opinion here.