I'm NOT So Excited: Twelve-Minute 911 Call, During Which Caller Patiently and Rationally Answered Questions, Not Admissible as an "Excited Utterance"

Matthew Gabramadhin v. United States (decided April 28, 2016)

Players: Associate Judges Easterly and McLeese, Senior Judge Reid.  Opinion by Judge McLeese. PDS for Mr. Gabramadhin.  Trial Judge:  Russell F. Canan

Facts:  According to the complainant, M.H., Mr. Gabramadhin approached her as she was walking near Dupont Circle late one night.  He forced her into a nearby park where he assaulted her and stated that he wanted to have sex with her, but he eventually let her go.  M.H., a student at Georgetown, called the university's public safety department, spoke with an officer for several minutes, and was then transferred to a 911 operator, with whom she spoke for several more minutes.  M.H. stated during the call that she had been assaulted, answered numerous questions, and gave a description of her assailant.  M.H. testified that she was "very confused," "really afraid," and "could have been in shock" during this call.  A recording of the entire call was admitted at trial as an "excited utterance."

Mr. Gabramadhin gave a starkly different account of events.  He said that he and M.H. struck up a conversation, and went into a nearby park where they talked more and then began kissing.  M.H. eventually performed oral sex on him. Mr. Gabramadhin then told M.H. that he had a girlfriend, which made M.H. very angry and she followed him and shouted loudly that she hated him.

Issue:  Was the entirety of the 911 call admissible as an "excited utterance"?

Holding: No.  Several factors foreclosed a finding that M.H.'s statements during the call "were a 'spontaneous reaction to the exciting event' rather than 'the result of reflective thought.'"  First, the call lasted 12 minutes, and "lengthier statements are less likely to reflect spontaneity and lack of reflection."  Second, M.H. gave "detailed," "rational," and "patient" answers to questions during the call.  Third, M.H. initiated the call.  Fourth, upon a review of the recording, "the tone and contents of the call are consistent with a determination that M.H. was upset, but they are not consistent with a determination that M.H. was so upset that she was unable to reflect or was speaking reflexively."  Based on these combined factors, the call should not have been admitted as an excited utterance.

The error was not harmless in "a closely contested case that turned almost entirely on the respective credibility of M.H. and Mr. Gabramadhin."  The call went to the central issue at trial (consent), and the physical evidence and other testimony gave some support to both sides.  Although nothing in the call added information that was not in M.H.'s trial testimony, "the statements in the call might well have been more persuasive to the jury because of their temporal proximity to the incident and the level of detail they contained."  Finally, the call was a major feature of the prosecution case, and was both played for the jury and discussed during the government's closing argument.

Although the trial court had ruled that portions of the call were admissible as a present sense impression or statements of prior identification, the Court would not affirm on that basis.  Neither the trial court nor the government had identified the specific portions of the call that would have been admissible under either exception.  The government also mentioned these alternative hearsay exceptions only in a footnote in its brief, without providing specific legal or factual argument.  "In the absence of specific findings from the trial court and adequate briefing from the United States, we are unable to rely on these alternative hearsay exceptions as bases upon which to conclude that the erroneous admission of the call as an excited utterance was harmless."

Of Note:

• For appellate practitioners, the Court's harmless-error analysis holds a lot of promise.  The government's case was not weak, and the 911 call did not contain any information that was not already before the jury.  But the Court properly explains why, in a close case where credibility was key, the 911 call was prejudicial.

• The Court's refusal to address whether portions of the call were admissible under alternate theories is also notable.  Both the government and the trial judges often reference multiple hearsay exceptions without much elaboration.  The Court emphasizes that the proponent of hearsay bears the burden of establishing an applicable exception and specific findings are required.  DG

Read full opinion here.

Crying Wolf? Finding of Competency and Denial of Motion to Withdraw Affirmed in Light of Defendant’s Perceived Malingering and Bad Faith.

Christian D. Taylor v. United States (decided March 31, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Judge Nebeker. Nicholas B. Lewis, Anand V. Ramana, and Christopher D. McEachran for Mr. Taylor. Trial Judge: Thomas J. Motley.

Facts: Mr. Taylor was convicted on two counts of first-degree premeditated murder; four counts of felony murder, second-degree burglary while armed, and robbery while armed; and seven counts of possession of a firearm during a crime of violence (“PFCV”) for entering a store, demanding money at gunpoint, and shooting the cashier and his father, who co-owned the store.

Mr. Taylor refused to participate in his initial 24-hour competency screening. After a 45-day inpatient evaluation, the trial court found Mr. Taylor competent to stand trial. Mr. Taylor later complained of intermittent inability to speak and hear. Examiners at St. Elizabeth’s Hospital determined that he was malingering, and the court again found him competent.

Geoffrey Harris was appointed to represent Mr. Taylor with another attorney who later withdrew due to Mr. Taylor’s complaints about the representation and professed religious bias. Mr. Harris moved to withdraw, after Mr. Taylor filed a bar complaint against him. Having found that Mr. Taylor fienged his hearing/speech loss to avoid trial, the trial court similarly denied the motion to withdraw in light of perceived bad faith on Mr. Taylor’s part but appointed another attorney to act as co-counsel at trial. Mr. Harris twice renewed his motion to withdraw, including once, in light of Mr. Taylor’s alleged threats to his children. The trial court denied these motions, finding that they were also motivated by Mr. Taylor’s desire to avoid trial. The court declined to recuse itself from hearing these motions or presiding over the trial.

Issue 1: Whether the trial court abused its discretion in deeming Mr. Taylor competent to stand trial?

Holding 1: No. Mr. Taylor had no prior history of mental illness. He was deemed competent by two mental health professionals at St. Elizabeth’s Hospital. Lay testimony and the trial judge’s in-court observations further supported its finding. Mr. Taylor put forward no evidence to overcome the presumption that he was competent.

Issue 2: Whether there was an actual conflict of interest between Mr. Taylor and Mr. Harris that adversely affected Mr. Harris’ performance?

Holding 2: No. The court appropriately inquired into the potential conflict. Its remedy of appointing co-counsel for trial was sufficient to prevent any prejudice, as co-counsel took a lead role. Mr. Taylor has not complained about co-counsel’s performance and fails to identify any prejudice suffered as a result of Mr. Harris’ continued representation. Based on the record presented, the trial court correctly found that Mr. Taylor was just trying to avoid trial.

Issue 3: Whether the trial court erred in declining to recuse itself from presiding over the trial after presiding over Mr. Harris’ motion to withdraw?

Holding 3: No. The trial judge was in the best position to hear the motion to withdraw, having seen the relationship between Mr. Taylor and his attorneys, past and present. Efficiency may sometimes counsel preemptive recusal from a potentially prejudicial motion, but it is not necessary in all cases. The trial court was aware of its duty to self-recuse, if it became prejudiced. The record does not contradict its finding that there was no prejudice.

Issue 4: Whether the government presented sufficient evidence that the murders were premeditated and deliberate?

Holding 4: The issue is moot. Only one murder conviction per victim may stand. Because the sentence will be the same no matter which are vacated, the Court vacates the first-degree premeditated murder convictions and upholds only the two felony murder convictions predicated on robbery. (Mr. Taylor’s convictions for robbery merge with these felony murder convictions. Since the felony murder predicated on second-degree burglary is vacated, second-degree burglary does not merge.)

Issue 5: Whether Mr. Taylor’s PFCV convictions merge into a single conviction?

Holding 5: No. Mr. Taylor manifested a “fresh impulse” when he committed second-degree burglary, armed robbery, and then two first-degree murder.

Of note: The Court’s holding with respect to Mr. Harris’ motion to withdraw is best understood in the context of Mr. Taylor’s conduct throughout the case: “We agree with the trial court that appellant was malingering and that his attempt to manufacture a conflict of interest with his attorney was merely another effort to manipulate the court and avoid trial.” Attorneys facing threats to life or livelihood that may affect their representation should continue to bring those matters to the presiding judge’s attention, in ways that protect their client’s interests.  WC

Read full opinion here.

Misdemeanor threats to do bodily harm need not be “serious”

Mark E. Lewis v. United States (decided May 12, 2016)

Players: Associate Judges Blackburne-Rigsby and Thompson and Senior Judge Reid. Opinion by Judge Blackburne-Rigsby. Charles Burnham for Mr. Lewis. Trial Judge: Jennifer M. Anderson.

Facts: Following a bench trial, Mr. Lewis was convicted of second-degree theft and attempted misdemeanor threats to do bodily harm. The complaining witness testified that Mr. Lewis spent the night at her home and took money out of her wallet when she left the bedroom to answer the door. The complaining witness reported the money stolen when she returned to the bedroom to find Mr. Lewis gone and her wallet empty and displaced. The complaining witness testified that in a later phone call, Mr. Lewis denied the theft and demanded, “Stop playing with me, b****. I’ll smack the s*** out of you [and] get you f***ed up.”

Issue 1: Whether the evidence was sufficient to sustain a conviction for attempted misdemeanor threats to do bodily harm?/Whether the crime of misdemeanor threats requires a threat to do “serious bodily harm”?

Holding 1: Yes/No. Although the Court has sometimes stated that the crime of misdemeanor threats requires uttered words that “convey fear of serious bodily harm or injury,” the Court has never confronted the issue squarely. The statute itself does not use “serious” to qualify the type of harm that is punishable if threatened. The “serious bodily harm” language from the cases appears to be an artifact of the Redbook and an inversion of jurisprudence requiring that the promise of bodily harm be serious for a true threat to occur. Requiring “seriousness” in the context of verbally threatened, as opposed to completed, bodily harm would be unworkable in practice. Cf. D.C. Code § 22-3001(7) (defining “serious bodily injury” for purposes of aggravated assault).

Issue 2: Whether the evidence was sufficient to sustain a conviction for second-degree theft, in light of the fact that no one witnessed the alleged theft?

Holding 2: Yes. The circumstantial evidence presented was sufficient.

Of note:

• It is troubling that the Court’s reasons for declining to read “seriousness” into misdemeanor “threats to do bodily harm” apply with equal force to its felony counterpart, which is punishable by up to 20 years imprisonment. See D.C. Code § 22-1810. The DCCA has traditionally “interpreted the elements of this misdemeanor to be the same as those of its subsequently enacted felony counterpart.” United States v. Baish, 460 A.2d 38, 41 (D.C. 1983), abrogated by Carrell v. United States, 80 A.3d 163 (D.C. 2013), reh’g en banc granted, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015). The implications of this opinion figure to extend beyond the misdemeanor statute.

• Following Joiner-Die v. United States, 899 A.2d 762 (D.C. 2006), and In re Z.B., 131 A.3d 351 (D.C. 2016), this case deepens the divide in how the statutes for threats and assault are interpreted, despite conceptual overlap between the two offenses. While the Court posits that it would be unworkable to require proof that the harm contemplated by uttered words is “serious” in the same sense that aggravated assault requires, it is conceivable that the government would face this exact burden in prosecuting attempted aggravated assault. The Court opined that it was “unclear and possibly unknowable” that a threat to “smack the s*** out of” someone or “get [him or her] f***ed up” would threaten “serious bodily injury.” This opinion may raise interesting sufficiency questions in the future.  WC

Read full opinion here.

If you desire a jury trial, be sure the building itself is open to the public before trespassing.

Jacqueline Frey v. United States (decided May 5, 2016).

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by McLeese. Trial Judge: Ann O’Regan Keary. Jeffrey Light for Ms. Frey. 

Facts: At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee’s desk in a restricted area of the Library of Congress’s Adams Building, which though open to the public during the day was closed at that time. Also, in order to get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public. Ms. Frey testified she had entered the building at 3:30 p.m. the day before, when it was open, and fell asleep in the reading room. When she woke up, the building was closed and she began walking around until she made her way to the office where she was later arrested. After a bench trial, she was convicted of unlawful entry in violation of D.C. Code §22-3302. 

Issue:  Did the trial court err in deciding that Ms. Frey was not entitled to a jury trial? 

Holding: Yes. The unlawful entry statute is divided into two parts. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than six months, or both. Thus, since someone charged with an offense punishable by more than 180 days’ imprisonment has a statutory right to a jury trial, anyone charged under subsection (b) has a right to a jury trial. 

In this case, the information filed did not specify which subsection Ms. Frey was accused of violating. The government conceded that the Adams Building of the Library of Congress is a public building, but argued Ms. Frey was subject to subsection (a) because she was found inside the building at a time when it was not open to the public and in a room that is never open to the public.

The Court disagreed with the government’s argument. The Court reasoned that “[i]n light of the United States’s acknowledgment that the Adams Building is a public building rather than a private building, it seems to follow that Ms. Frey entered a public building, as well as various parts of a public building, and did not enter a private building or any part of a private building. Ms. Frey’s conduct therefore appears to have violated subsection (b), rather than subsection (a).” The focus is on where the person entered, in this case a public building, and not specifically where inside that building or when the person was found. 

In 2009, the unlawful entry statute had been divided into two parts, as the D.C. Council wished to draw a distinction between private and public buildings, and buildings where someone would have First Amendment protections. The government claimed this meant the building must be considered “private” because the Council only wanted to give more protections to people who entered private buildings due to their First Amendment rights but that no one has a First Amendment right to be in a building when it is closed. The Court disagreed: “By preserving a jury-trial right in all prosecutions for unlawfully entering public buildings, the Council apparently chose instead to draw a more easily administrable line [than the one the government was asking the court to draw]. In such circumstances, we must adhere to the broader language the Council chose, and we may not artificially limit the statute to the particular circumstances that gave rise to the Council’s concern.” 

Also, the Court noted that legislative history indicated the Council understood the jury-trial right would be “tied to the public character of the building as a whole, not to specific areas within a building.” The Court concluded that a defendant charged with unlawful entry has a right to a jury trial if the building itself is a public building, even if the defendant is found at a time when the building is closed or in an area within the building not open to the public. BM

Read full opinion here.

Don’t try to use booze as your defense to manslaughter or second-degree murder.

Jorida Davidson v. United States (decided May 5, 2016).

Players: Associate Judges Glickman, Fisher, and Easterly. Opinion by Fisher. Trial Judge: Lynn Leibovitz. Thomas Heslep for Ms. Davidson.

Facts: After consuming at least three glasses of wine and champagne, Ms. Davidson was driving home in her sport utility vehicle when she hit and killed Kiela Ryan, who was exiting her car after having parallel parked on Connecticut Avenue. Ms. Davidson did not stop but a witness wrote down her license plate number and contacted police. About an hour later, police found Ms. Davidson asleep inside her car, which was parked in her assigned parking spot in the garage underneath her condominium. She showed signs of intoxication when police subjected her to field sobriety tests, but she refused a breathalyzer test. A jury convicted her of voluntary manslaughter for causing Ms. Ryan’s death by acting “with a conscious disregard of an extreme risk of death or serious bodily injury to another.”

Issue 1:  Did the trial court err in denying defense’s requests for a jury instruction on voluntary intoxication?

Holding:  No. While voluntary intoxication may reduce first-degree murder to second-degree murder, Bishop v. United States, 107 F.2d 297, 301 (D.C. Cir. 1939), it is not a defense to either second-degree murder or voluntary manslaughter. “[A] defendant may be drunk enough to reduce his conviction from first- to second-degree murder, but he may not use his voluntary intoxication to diminish the offense further, to manslaughter, or seek acquittal on that basis.” Appellant argued that under Comber v. United States, 584 A.2d 26 (D.C. 1990) (en banc), which discussed the mental states required for murder and manslaughter, voluntary intoxication can negate the mental state for both murder and manslaughter. The Court disagreed, noting that the same argument was already rejected in Wheeler v. United States, 832 A.2d 1271, 1275-76 (D.C. 2003), and reiterated that there is a firm line where voluntary intoxication can reduce first- to second-degree murder, but nothing more.

Of Note:

• Ms. Davidson also raised two additional issues that the Court dealt with in a footnote. First, the Court determined there was sufficient evidence that Ms. Davidson “conscious[ly] disregard[ed] . . . an extreme risk of death or serious bodily injury to another person.” And second, Ms. Davidson was convicted after a retrial, and the Court determined the trial court “did not abuse its discretion by precluding appellant, in closing argument, from comparing the evidenced presented at this trial to that presented in the first trial,” citing Haley v. United States, 799 A.2d 1201, 1207 (D.C. 2002), for the proposition that a court abuses its discretion in limiting closing argument only if it “prevents defense counsel from making a point essential to the defense.” BM

Read full opinion here.

Chief Judge Washington expresses concern about government's decision to prosecute APO cases that arise from Mobile Crisis contacts with mentally ill individuals

Foster v. United States (decided April 21, 2016).

Players: Chief Judge Washington, Judge Fisher, and Senior Judge Steadman. Opinion by Chief Judge Washington. Concurring opinion also by Chief Judge Washington. Anna B. Scanlon for Mr. Foster. Trial judge: Yvonne Williams.  

Facts: Mr. Foster has schizophrenia, and a Mobile Crisis psychiatric team responded to his home after his mother called the Department of Health for help. At least two police officers accompanied the Mobile Crisis team to assist and “keep the peace.” When Mr. Foster refused to go with the crisis team for evaluation, the officers attempted to handcuff him—though he was not under arrest—“and a scuffle ensued,” during which the police sprayed him with pepper spray. Mr. Foster “shouldered” past one officer and left the house before dropping to his knees when the pepper spray took effect. He ultimately ended up face down on the ground as officers tried to handcuff him, lying on his hands, kicking his legs, and trying to breathe. He was convicted of APO for “pushing” or “shouldering” past the officer as he left the house and resisting arrest when police tried to handcuff him.   

Issue: Was the evidence sufficient to support the conviction for APO?           

Holding: Yes. Because the officers were in full uniform and explained their presence to Mr. Foster when they attempted to handcuff him, there was sufficient evidence that he knew they were police officers. And because he used his shoulder to move past one officer and actively resisted handcuffing by lying on his hands and kicking his legs, there was sufficient evidence of “the ‘active and oppositional’ conduct necessary for APO.”                 

Of Note: Chief Judge Washington wrote a separate concurrence to “express [his] concern” about the decision to prosecute APO charges in cases like this. He explained that he is “troubled that the presence of the police during these mental health visits can result in an individual being charged with a criminal offense because we have criminalized active oppositional resistance to the authority of the police.” If police officers are going to accompany the Mobile Crisis team, he “hope[d] that those individuals who have the discretion to decide whether to criminally prosecute individuals who fail to comply with lawful orders will think twice before inflicting what could be considered a greater harm, in the form of a criminal charge and conviction, on a very vulnerable population.”  MW

Read full opinion here.

Reminder: You can keep out prejudicial evidence of your client’s release status and prior conviction, so object when the government seeks to introduce stipulations on these issues

Richard Walker Williams v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Thompson, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  Debra Soltis for Mr. Williams.  Robert E. Morin, Trial Judge.

Facts: This case arises from a fatal stabbing.  Mr. Williams was appointed standby counsel at trial after his two previous attorneys’ motions to withdraw were granted.  At the suppression hearing, Mr. Williams alleged multiple instances of prosecutorial misconduct, including that the government had knowingly allowed a witness to give false testimony at a preliminary hearing and had altered police records.  Mr. Williams’ standby counsel requested a mental evaluation, and the staff psychologist at St. Elizabeth’s stated after a screening interview that she could not discern whether Mr. Williams was “unwilling” or “unable” to participate in court proceedings.  Mr. Williams was then committed to St. Elizabeths Hospital for a competency evaluation.  At a competency hearing, a staff psychologist at St. Elizabeths who had diagnosed Mr. Williams with malingering opined that Mr. Williams was competent to represent himself without counsel.  The psychologist’s opinion was based on her daily interactions with Mr. Williams over the two-month evaluation period, as well as her consultation and review of his records.  Mr. Williams’ standby counsel also informed the court that he believed Mr. Williams would be able to work with him on technical legal questions.  The court found Mr. Williams competent, crediting the psychologist’s opinion that Mr. Williams seemed able to turn his paranoia “off and on . . . like a light switch.”  Mr. Williams then represented himself at trial with his appointed attorney serving as standby counsel.  

At trial, the government introduced, without objection, stipulations as to Mr. Williams’ prior felony conviction (an element of the charge of carrying a dangerous weapon having been previously convicted of a felony (CDW)) and Mr. Williams’ release status at the time of the offense (an element of the charge of committing an offense during release (OCDR)).  Mr. Williams was convicted of second-degree murder while armed, CDW, and two counts of OCDR.  

Competency Issues: Whether the court erred in finding Mr. Williams competent for self-representation and whether the trial court abused its discretion by failing to re-examine sua sponte the issue of competency during trial and sentencing.

Holding:  No.  The DCCA found that the trial court’s determinations were supported by “ample evidence,” including the court’s interactions with Mr. Williams throughout pre-trial proceedings; evidence at the competency hearing; the court’s lengthy formal inquiry with Mr. Williams on the issue of whether Mr. Williams was competent to represent himself at trial; and Mr. Williams’ ability to file and argue pro se motions and form defense theories.  And according to the DCCA, the trial court did not err by failing to re-examine the issue sua sponte, given that during trial, Mr. Williams was able to cross-examine witnesses effectively, highlight inconsistencies and gaps in the government’s evidence, and present his own version of the incident.

Other Crimes Issue: Whether the trial court committed plain error by allowing the government to introduce evidentiary stipulations at trial regarding Mr. Williams’ felony conviction and release status.

Holding:  Yes.  The DCCA found that (1) OCDR does not create a separate offense, but is a sentencing enhancement, and (2) evidence of a prior felony conviction is unnecessary and prejudicial if the defendant is willing to stipulate to this fact.  Slip Op. at 22-24 (citing Eady v. United States, 44 A.3d 257 (D.C. 2012)).  Therefore, it was plain error for the trial court to admit evidence of the appellant’s release status and prior conviction, in light of Mr. Williams’ stipulations on these issues.  However, this error did not warrant reversal, given that two “credible” eyewitnesses and video evidence supported the government’s case and that the prejudicial effect of the stipulations was limited by the trial court’s limiting instructions.  NG

Read full opinion here.