“Is that a gun in your pocket, or are you just happy to see me?”

Michael A. Hartley v. United States, No. 13-CF-653 (decided May 14, 2015).

Players: Chief Judge Washington, Associate Judges Blackburne-Rigsby and Easterly.  Opinion by Chief Judge Washington.  William R. Cowden for Mr. Hartley.  Trial Judge: J. Michael Ryan.

Facts:  On a December afternoon at the Rhode Island Metro station, Mr. Hartley attempted to rob James Galloway-Reed of his cell phone.  After verbal threats failed to convince Mr. Galloway-Reed to surrender his phone, Mr. Hartley placed his hand in his pocket and stated, “this isn’t a joke, I have a gun.”  Unfortunately for Mr. Hartley, Mr. Galloway-Reed did not believe him and began to walk away.  Mr. Hartley followed him to an underpass across the street and began to “physically assault” him.  A bystander called the police, who arrived and apprehended Mr. Hartley at the scene.  No gun was recovered from Mr. Hartley’s person or the surrounding area. 

Mr. Galloway-Reed suffered “minor cuts to his face, a black eye, and swelling.”

Issue 1:  “[W]hether placing one’s hand in one’s pocket and pointing it at someone while verbally threatening to shoot them if they do not comply with one’s demand is sufficient evidence to satisfy the District’s while armed enhancement statute.”

Holding:  No, given these facts.  The Court distinguishes an earlier case, Smith v. United States, 777 A.2d 801 (D.C. 2001), in which the Court found sufficient evidence that the defendant was armed where he had robbed a restaurant with his hand in his pocket, asserting that he had a gun, and was not apprehended on the scene.  Smith is distinguished based on the facts that (a) Mr. Galloway-Reed testified that he did not believe Mr. Hartley had a gun, and (b) Mr. Hartley was immediately apprehended and no gun was found on his person or nearby.  Thus, there was no basis for the jury to infer that Mr. Hartley had a firearm.  

In a footnote, the court also distinguished this case from those in which a witness perceives a physical manifestation of a weapon, imitation or otherwise, that could reasonably be mistaken for a firearm at the time that the crime was committed.

Issue 2/ Holding:  The government conceded that the evidence was insufficient to support Mr. Hartley’s conviction for felony assault because Mr. Galloway-Reed did not suffer significant bodily injury.  CP

Read full opinion here.

Eureka! Exclusionary rule does not apply in a cold case solved by DNA evidence obtained through an unconstitutional but “good faith” search by a prison employee.

Shepardson R. Blair v. United States, No. 12-CF-1351 (decided May 7, 2015)

Players: Associate Judges Blackburne-Rigsby and Thompson, Senior Judge Steadman. Opinion by Judge Thompson. PDS for Mr. Blair. Judges: Thomas J. Motley (motion judge), Ronna Lee Beck (trial judge)

Facts:

Based on DNA evidence that linked him to the sexual assault of C.H., Mr. Blair was convicted of first-degree sexual abuse and assault with significant bodily injury.

Issue 1:

While Mr. Blair was incarcerated at a federal prison in 2005 for a DC first-degree theft conviction, a Bureau of Prisons employee drew a sample of his blood so that his DNA profile could be uploaded to a database run by the FBI. Although the DNA Analysis Backlog Elimination Act (“DNA Act”) authorized BOP to collect DNA from inmates convicted of “qualifying” DC offenses, the DNA Act did not authorize it to collect Mr. Blair’s blood in 2005 because the DC government had not yet made first-degree theft a qualifying offense. The FBI discovered in 2009 that Mr. Blair’s DNA matched that of the man who assaulted C.H. in 2005. The FBI shared this information with MPD, and Mr. Blair was arrested for the 2005 assault. In 2011, the trial court issued a warrant compelling Mr. Blair to allow MPD to take another DNA sample. Probable cause to support that warrant depended on the DNA match obtained using the 2005 sample. At trial, the government introduced the DNA evidence derived from the 2011 sample, which, like the 2005 sample, linked Mr. Blair to the 2005 assault.

Assuming that BOP’s collection of the 2005 DNA sample violated the Fourth Amendment, did the trial court err by declining to apply the exclusionary rule and permitting MPD to collect a second sample based solely on information derived from the 2005 sample?

Holding 1:

No.  First, BOP likely acted in good faith when it took the 2005 DNA sample, mainly because: (a) defense counsel acknowledged that he “did not ‘know of any’ bad faith” on the part of BOP; and (b) although the DC government had not yet designated all DC Code felonies (including first-degree theft) as qualifying offenses for purposes of the DNA Act, Congress had already designated all federal felonies as qualifying offenses, suggesting that the unconstitutional search resulted from a negligent, but not bad faith, failure to recognize this difference.

Second, the trial court “reasonably concluded” that the deterrence-related benefits from suppressing the fruits of the 2005 DNA sample would not outweigh its costs, mainly because: (a) DC law was later revised to include “any felony” as a qualifying offense under the DNA Act, obviating any need to “deter BOP personnel from again making th[is] mistake”; (b) several years elapsed between the collection of the 2005 blood sample and the trial; and (c) BOP personnel were “not adjuncts to the law enforcement team.”

You should be able to distinguish this opinion by emphasizing that its holding depends on its peculiar facts, including that prison staff rather than police conducted the unlawful search.

Issue 2:

To be convicted of first-degree sexual abuse, the defendant must force the complainant to engage in a sexual act that involves (in relevant part) “penetration, however slight, of the . . . vulva of another by a penis.” Here, C.H. testified that the assailant pushed “into [her] vagina” with his “non-erect penis” and “tried several times to push himself further inside.” The doctor who treated C.H. after the assault found “a significant amount” of debris in C.H.’s vulva.

Was this evidence insufficient to establish that the assailant penetrated C.H.’s vulva?

Holding 2:

No. C.H.’s testimony that the assailant pushed “into [her] vagina” and tried to push “further inside,” together with the “violent nature of the attack,” permitted the jury to infer that he penetrated her “vulva, if not her vagina,” even though his penis was not erect.

Issue 3:

During the assault, C.H.’s head was repeatedly banged against the ground. The doctor who assessed her at the hospital testified that she had abrasions “all over [her] body,” evidence of “trauma” around her eyes, “a lot” of tenderness in her jaw, neck pain, and a “severe headache.” The doctor ordered CAT scans of C.H.’s head, face, and mandible because he was “concerned” that she might have a “significant head injury,” and he ordered an X-ray of her neck to “rule out bone injury.” These tests apparently found no sign of internal injuries.

Was this evidence insufficient to prove the significant-bodily-injury element of felony assault?

Holding 3:

No. The CAT scans and X-ray the doctor ordered for C.H.’s head and neck, together with the bruising “all over [her] body,” sufficed to show that her injuries were significant, though the issue was a close (“less than obvious”) one.

The Court’s emphasis on diagnostic tests is somewhat at odds with prior decisions holding that significant bodily injury includes only injuries that require medical treatment rather than diagnosis. The opinion should thus be read narrowly to avoid conflict with the Court’s past decisions. The opinion itself suggests several limits to its holding: (1) the tests here were aimed at detecting injury to particularly sensitive body parts, the head and neck; (2) there was medical testimony that the tests were needed to rule out internal injuries; (3) the Court relied not only on the tests, but also on evidence of bruising “all over” C.H.’s body; and (4) the Court recognized that the issue was close despite all these factors.  JM

Read full opinion here.

Prior statements of identification: Quick, do you know the rule?

Eric D. Foreman v. United States, No. 12-CF-2064 (decided April 30, 2015).

Players: Chief Judge Washington, Associate Judge Fisher and Senior Judge Reid.  Jonathan S. Zucker for Mr. Foreman.  Trial judge: Robert E. Morin.

Issue:  At trial, Karin Jackson testified that her son told her, “Eric [Foreman] shot the guy.”  Mr. Foreman challenged the admissibility this statement, which the government sought to admit as a prior statement of identification under D.C. Code § 14-102 (b)(3) (“A statement is not hearsay if the declarant testifies at the trial . . . and is subject to cross-examination concerning the statement and the statement is … (3) an identification of a person after perceiving the person.”).  The defense argued that admission of the prior identification was error because, “hearsay declarants must have personal knowledge of what they assert in order for their declarations to be admissible.”  Ginyard v. United States, 816 A.2d 21, 40 (D.C. 2003).  According to the defense, Ms. Jackson’s grand jury statement “I guess they seen it was Eric” established that Mr. Jackson was not an eyewitness, and was merely relating hearsay or rumor.

Holding:  The trial judge did not err in admitting the prior statement of identification because other portions of the grand jury transcript supported a finding by a preponderance of the evidence that Mr. Jackson was in fact an eyewitness. SF

Read full opinion here.

Important ruling on how much of a proffer you need in order to cross on a prior bad act bearing on veracity and on bias. The takeaway: the standard is "a fairly lenient one"

Keith A. Moore v. United States, No. 12-CF-778 (decided April 30, 2015).

The Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor.  Opinion for the Court by Judge Glickman; dissenting opinion by Judge Pryor.  PDS for Mr. Moore.  Trial Judge: Ann O’Regan Keary.

The Facts: In this armed robbery trial, Mr. Moore’s defense was that the complainant, Lorenzo Thomas, fabricated his story that Mr. Moore had stolen $1,000 from him because Mr. Thomas was due in court the next day for a probation revocation hearing for failure to pay restitution, so he needed the cash -- or at least a ready excuse for why he could not pay the restitution. 

Prior to trial, Mr. Thomas had told the government that he had a lot of cash from working at P.F. Chang’s restaurant.  He later recanted that and said the money came from a tax refund and gambling proceeds.  The prosecutor obtained a copy of Mr. Thomas’s tax return, which reflected a large refund, primarily due to Mr. Thomas claiming his little sister as a dependent.  It occurred to the prosecutor that the tax credit might not have been appropriate because Mr. Thomas and his little sister both lived with their mother, who was a federal employee and the more natural person to claim the child as a dependent.  In discussing the tax return with Mr. Thomas, the prosecutor told him that “there was no understanding between him and the government about whether claiming his sister as a dependent was appropriate.” 

Issue: The defense sought to cross-examine Mr. Thomas about whether he had committed tax fraud on two bases:  (1) the defense argued that a false representation on a tax return was a proper subject on cross-examination because it was a prior bad act bearing on Mr. Thomas’s veracity with respect to the contested issues at trial; and (2) cross-examination about the suspected false tax return was probative of Mr. Thomas’s bias because the prosecutor had discussed with him a possible problem with the tax return, and he may have therefore harbored a subjective belief that he was in jeopardy of prosecution, which would give him a testimonial bias.

The judge precluded all inquiry about the tax return, ruling that the matter was too convoluted because it required knowledge of tax rules, Mr. Thomas had used a professional tax preparer and did not complete the return himself, and that even if the return reflected dishonesty, that was not as probative as other fertile grounds the defense had for cross-examination.

Holding: The trial court erred in precluding the desired cross-examination because the defense proffer was adequate to require it on both theories -- prior bad act bearing on veracity, and bias.  The error was harmful at least with respect to the former purpose because Mr. Thomas’s veracity as to the source of the money he claimed the defendant took from him was hotly contested at trial.

Important Rules and Points for Practitioners: 

This is an important case on the doctrine of prior bad act bearing on veracity.  This opinion clarifies that the standard for a defense proffer to permit such inquiry is a “fairly lenient one,” the very same standard as for bias cross-examination (with which judges and practitioners are more familiar).  The proffer need suggest only a “well-reasoned suspicion” that “the witness committed a veracity-impeaching bad act or is biased in the manner asserted.”  Here, the defense proffer of suspicious circumstances warranted permitting the cross-examination as a matter of law, although the defense could not definitively prove dishonesty: although the tax return was prepared by a professional, it included an assertion that the witness provided the factual information that permitted the tax credit; it was undisputed that the witness would not be allowed to take the tax credit if his mother’s adjusted gross income (AGI) that year was higher than his AGI; the witness’s AGI was only $9,245; his mother was a federal employee, so it is likely that her AGI was higher; therefore it is “quite a reasonable suspicion” that the witness provided false information to the tax preparer for personal gain.  This was sufficient.  SF

Read full opinion here.