DCCA upholds order to vacate home in CPO case, even where the parties did not jointly own or occupy the home

Alfredo Salvattera v. Isela Ramirez, No. 14-FM-1006 (decided March 26, 2015)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman.  Opinion by Fisher.  PDS for Alfredo Salvattera.  Skadden Arps for Isela Ramirez.  Trial Judge: Fern F. Saddler. 

Facts:  Mr. Salvattera and Ms. Ramirez lived on different floors of the same apartment building.  Ms. Ramirez filed a petition for a Civil Protective Order pursuant to D.C. Code § 16-1005(c), alleging that Mr. Salvattera had sexually assaulted her.  The petition requested, among other things, that the court order Mr. Salvattera to vacate his apartment.  The trial court granted the petition and ordered Mr. Salvattera to vacate his apartment in less than three weeks.  Mr. Salvattera filed a motion under D.C. Superior Court Rule 59(e) asking the trial court to remove the requirement that he vacate his apartment.  When that request was denied, Mr. Salvattera appealed, and the DCCA granted his request for a stay. 

Issue: Whether, under the Intra-Family Offenses Act, a trial court is authorized to order a respondent to vacate his home under the “catchall” provision in the statute that allows the judge to order any relief that is “appropriate” under the circumstances, when the statute has a specific provision dealing with orders to vacate a residence.

Holding:  Yes.  The DCCA concluded that in enacting D.C. Code § 16-1005(c)(4), which deals with orders to vacate a residence, the D.C. Council intended to regulate  the “paradigmatic situation” in which the petitioner and respondent live together.  See Slip Op. at 8.  However, according to the DCCA, the Council did not intend this provision to become the exclusive source of a trial court’s authority to order a respondent to vacate a dwelling.  Therefore, trial court had authority under D.C. Code § 16-1005(c)(11) to order Mr. Salvattera to vacate his home, in order to ensure the effectiveness of the trial court’s stay-away order.

Of Note:

• In this case, there was only one staircase in the apartment building, so Ms. Ramirez would have to come within a few feet of Mr. Salvattera’s apartment when accessing her own apartment, making the trial court’s stay-away order difficult to enforce as long as Mr. Salvattera remained in the building.  Use this unusual circumstance to distinguish your case.
• Remind trial courts that the relief upheld here is “a serious step, not to be lightly undertaken[.]”  Slip Op. at 11 (quoting Robinson, 886 A.2d 78, 86 (D.C. 2005).  NG

Read full opinion here.

The MPD and U.S. Attorney’s Office are now on notice that they must preserve station-house video of DUI/OWI suspects (not just celebrities)

Terrence Melvin Koonce v. District of Columbia, No. 13-CT-0494 (decided March 19, 2015).

Players: Associate Judges Blackburne-Rigsby and McLeese, Senior Judge Ruiz.  Opinion by Ruiz.  Concurrence by McLeese.  Nicholas Q. Elton for Mr. Koonce.  Motions Judge: Franklin A. Burgess.  Trial Judge:  Ronna L. Beck.

Facts: Late in the evening, Mr. Koonce’s SUV collided with another car, setting off a chain of collisions with two more cars.  Undeterred, Mr. Koonce continued on his way and collided with a pickup truck, followed by yet another car, at which point his SUV, now missing a wheel, came to a stop.  The MPD officers on the scene testified that Mr. Koonce swayed back and forth, had slurred speech, and smelled strongly of alcohol.  Mr. Koonce refused to submit to field sobriety testing, stating “[I am] not as drunk as they think I am.”  When informed that refusing testing could result in having his license suspended, he responded, “Revoke it for six months.”  The police found an open bottle of vodka, which was removed, photographed, and discarded. 

At the station, Mr. Koonce was placed in a holding cell.  He explicitly refused to provide a urine sample and fell asleep in his cell before he could consent to or refuse blood testing.  There were cameras located in the cell block, but by the time of trial, the video from the night of Mr. Koonce’s arrest no longer existed.  Per MPD practice, video of a particular day will be available for approximately 30 days, but is then recorded over.  The defense requested any video evidence 34 days after the incident, but the government did not act until shortly before trial, by which time the video was no longer available.   

Issue 1: Was the government obligated to preserve the vodka bottle and the stationhouse video under Superior Court Criminal Rule 16 (a)(1)(C)?

Holding:  Yes.  As the to video, the Court held, “In the statutory and evidentiary context of DUI/OWI prosecutions, it takes a small, logical step to conclude that video that captures a suspect’s appearance, speech or actions soon after arrest and that records when the suspect is being . . . asked to submit to testing will be material to the defense.”  The video was “material” under Rule 16 and the government was obligated to preserve it. 

As to the bottle, Rule 16 requires the government to preserve seized items belonging to the defendant. 

However, under the facts of this case, there was no due process violation because there was no “willful refusal” by the government to preserve the requested evidence, and the trial court did not abuse its discretion in refusing to dismiss the case on due process grounds.

Issue 2: Did the trial court abuse its discretion in refusing to instruct the jury to infer that the unpreserved video supported the defense (but rather that the video had been requested but was destroyed pursuant to policy, and the jury could draw its own conclusions)?

Holding:  No.  The Court found that the government had been negligent in failing to preserve the video, but that there had been no “willful act” warranting a negative inference.  The Court also noted that the other record evidence about Mr. Koonce’s behavior and appearance strongly suggested that the video would not support the defense.

Issue 3: Did the trial court abuse its discretion in failing to suppress the photograph of the bottle as a sanction for the government’s failure to preserve the actual bottle?

Holding:  No.  Although discarding the bottle was deliberate, it was not done in bad faith.  Furthermore, the case turned not on whether the bottle was open, but whether Mr. Koonce was intoxicated, for which there was independent, substantial evidence.

Concurrence (McLeese):  Joining in the judgment, but disagreeing that the government had a duty to preserve the police station video.

How to Use: The Court noted that this time the government had not acted in bad faith for apparently not realizing that the video evidence would be lost due to standard MPD procedures.  However, “once the government is on notice of its obligations with respect to foreseeably discoverable items of evidence in DUI/OWI cases that are likely to be in its possession”—as it presumably is after this opinion—“lack of ‘willfulness’ ceases to be a defense to sanction for failure to preserve discoverable evidence.”  CP

Read full opinion here.

Sorry, marijuana decriminalization is not retroactive

Robert E. Washington v.United States, No. 13-CM-1331 (Decided March 19, 2015)

Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Fisher.  William T. Morrison for Mr. Washington.  Trial Judge: John F. McCabe.

Facts:  On July 5, 2013, Mr. Washington was charged with possessing 1.8 grams of marijuana and drug paraphernalia—five days before the Marijuana Possession Decriminalization Amendment Act of 2014, D.C. Law 20-126, was introduced before the City Council.  The act decriminalized “the possession of transfer without remuneration of marijuana weighing one ounce or less,” as well as the possession of paraphernalia associated with such possession.  Marijuana Decriminalization Amendment §§ 101(a) and (c), 409(a), 61 D.C. Reg. 3482, 3482 (2014).  The act became law on July 17, 2014.  61 D.C. Reg. 8250 (2014). 

Issue:  Does the Marijuana Possession Decriminalization Amendment Act of 2014 apply retroactively to offenses committed before July 17, 2014?

Holding:  No.  The act was passed against the backdrop of the general savings statutes, 1 U.S.C. § 109 (2012) and D.C. Code § 49-304 (a) (2012 Repl.), which provide that the repeal or amending of statutes will not affect offenses committed under those statutes unless the legislature expressly provides as much.  The DCCA held that “[t]here is no language in the Marijuana Decriminalization Amendment or its legislative history that expressly states or necessarily implies that the statute applies retroactively to” offenses committed before July 17, 2014.  CP

Read full opinion here.

DCCA declines to open Pandora’s box

Brian Lamont Copeland v. United States, No. 13-CO-746 (decided March 12, 2015).

 

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Ferren.  Opinion by Judge Fisher.  Jenifer Wicks for Mr. Copeland.  Trial Judge: Anthony C. Epstein.

Facts: Brian Copeland was convicted of first-degree sexual abuse, and his conviction was affirmed on appeal.  Mr. Copeland subsequently filed a motion for relief under D.C. Code § 23-110, alleging that his trial attorney had performed deficiently during jury selection.  At trial, Mr. Copeland’s defense attorney had conducted voir dire at the bench, and the trial judge had turned on the “husher,” a white noise machine intended to prevent those present in the courtroom from overhearing conversations at the bench.  Mr. Copeland remained seated at defense counsel’s table and did not participate in voir dire.  His attorney did not advise him of his right, pursuant to Super. Ct. Crim R. 43(a) and the Fifth and Sixth Amendments, to be present at the bench during voir dire.  When Mr. Copeland challenged this oversight by filing a § 23-110 motion in Superior Court, the trial judge rejected his motion without a hearing.

Issue 1: Assuming that the performance of Mr. Copeland’s trial attorney was deficient, did Mr. Copeland establish that he had been prejudiced by that performance?

Holding 1: No.  Mr. Copeland filed an affidavit in support of his § 23-110 motion, but the affidavit did not claim that Mr. Copeland would have exercised his right to be present at the bench during voir dire and did not assert that his trial attorney should have conducted voir dire differently or challenged any other jurors.  Consequently, Mr. Copeland failed to show that he had been prejudiced by his attorney’s conduct.

Issue 2: Can Mr. Copeland’s failure to show prejudice be excused because the trial court’s voir dire procedures violated Appellant’s right to a public trial and, thus, amounted to a structural error in which prejudice must be presumed?

Holding 2: No.  Unlike situations where the public is excluded from the courtroom during trial, the common practice of conducting individual voir dire at the bench is not a structural error.  It is worth noting that if the Court had ruled that defense counsel’s behavior at trial amounted to deficient performance and that it was a structural error, most criminal defendants who were recently convicted in D.C. would have valid § 23-110 claims.

Of note: The Court’s opinion highlights the importance of identifying a specific form of prejudice when filing § 23-110 motions.  The opinion also suggests that challenges to the trial court’s voir dire procedures are unlikely to garner defendants relief if trial counsel has not lodged a timely objection.  CK

Read full opinion here.

When can a witness make an ID from surveillance video?

Darius Young v. United States, Nos. 12-CF-1860 & 12-CF-1861 (decided March 5, 2015).

Players:  Associate Judges Fisher and Thompson, Senior Judge Belson.  Opinion by Senior Judge Belson.  PDS for Mr. Young. Trial judge:  Ronna L. Beck.

Facts:  Darius Young was arrested for a daytime carjacking that was caught on surveillance video.  The carjacker’s face was obscured in the video, but his coat was visible.  Police found and arrested Mr. Young after tracking the signal of an iPhone left in the stolen vehicle.  Although Mr. Young was wearing a coat similar to the one in the video, the stolen SUV was nowhere near him and he did not have the iPhone.  At trial, the government relied on identification testimony from a social worker who had worked extensively with Mr. Young and his family the previous year and who had last seen Mr. Young after the date of the carjacking.  The social worker testified that she recognized the carjacker in the surveillance video as Mr. Young based on his face, his stance, his gait, and his jacket.    

Issue:  Was it an abuse of discretion to admit lay opinion testimony from a witness who knew Mr. Young that Mr. Young was the person depicted in a surveillance video of a carjacking?

Holding:  No.  The lay opinion identification testimony was admissible under Sanders v. United States, 809 A.2d 584 (D.C. 2002), because the social worker had had “extensive contact” with Mr. Young, and because her superior ability to identify Mr. Young’s face, stance, gait, and jacket was helpful to the jury.   MW.

Read full opinion here.

No Abuse of Discretion in Denying Missing Evidence Instruction Where the Government Loses “Potential Evidence,” and No Error in Concurrent Intent Instruction

Donell Washington v. United States, No. 12-CF-2022 (decided March 5, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  PDS for Mr. Washington.  Trial judge:  Russell F. Canan.

Facts:  Donell Washington was convicted of first degree murder while armed, three counts of AWIKWA, and related weapons offenses arising from the death of Stanley Dawson, who was shot on a playground while three of his friends were present.  Two of the three friends were also struck by bullets.  Two witnesses identified Mr. Washington as the shooter, although they provided inconsistent testimony about whether the shooter’s face was covered.  After the shots, nearby resident Andrea Williams saw someone run across the street, not from the direction of the playground, and try to climb the fence by her house by putting “his hands on [it.]”  She did not see his face, did not see a weapon, and could not tell whether or not his face was covered. 

MPD evidence technicians swabbed Ms. Williams’s fence for DNA, but the swabs disappeared before they were tested.  At trial, Mr. Washington requested a missing evidence instruction, which would have permitted the jury to infer that the swabs were unfavorable to the government.  The trial court denied the request.

At the government’s request, the judge gave a “concurrent intent” instruction.  The jury sent a note asking what the instruction meant when it said the jury “may infer that the [appellant] intended to kill/injure/harm any other person in the zone of harm/danger.”  The judge answered that if the jury found that Mr. Washington shot at Mr. Dawson and created a “zone of danger around [him] with intent to kill, injure, or harm him,” that it could conclude that he also “intended to kill others in the zone of danger.”    

Issue 1:  Did the trial court abuse its discretion in refusing to give a missing evidence instruction about the lost DNA swabs?

Holding 1:  No.  The judge did not abuse his “considerable” discretion in refusing to give a missing evidence instruction, because the swabs were merely “potential evidence” and there was no way to know whether they would be inculpatory or exculpatory.  Even assuming error in denying the instruction, it was harmless, where the defense was able to address the issue in closing, cross-examine the evidence technicians, and call Mr. Williams as a witness.  

Issue 2:  Did the trial court abuse its discretion by providing a concurrent intent instruction that was an inadequate statement of law, and by failing to give the jury an appropriate clarification in response to its question?

Holding 2:  No.  Where the evidence showed that the appellant fired up to ten shots “at four people standing in close proximity to one another,” striking three of them, the concurrent intent instruction was “an adequate statement of the law and supported by evidence in the record,” and the response to the jury’s question was sufficient to remedy any confusion.

Of Note:

• On the missing evidence issue, the Court emphasizes that a trial court’s “considerable” discretion in determining whether to give a missing evidence instruction reflects a “recognition that a missing evidence instruction carries with it several inherent dangers.”  Slip Op. at 11. 

• In concluding that the judge’s response to the jury question about the concurrent intent instruction was sufficient, the Court noted that the response “[o]n its face . . . appeared to be ‘fairly balanced’ and did not ‘single out one aspect of the case,’” and that “the jury did not express continuing confusion after the clarification was issued.”  Slip Op. at 18.  MW

Read full opinion here.