Court didn’t shift the burden when instructing the jury that it could consider lack of alibi evidence

Donnell Thomas v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  Ron Earnest for Mr. Thomas.  Trial judges: Ronna L. Beck and Robert I. Richter

A brief note on a jury note case – The deliberating jury at Mr. Thomas’s trial sent a note asking whether it could consider the absence of alibi evidence when it was evaluating the government’s proof of Mr. Thomas’s presence at the scene of the crime.  The trial court didn’t err when it instructed the jury that yes, it could consider the lack of contradictory evidence presented by the defense.  In the same instruction, the court reminded the jury that the defense had no burden to present any evidence.  The DCCA reasoned that the instruction did not impermissibly shift the burden to the defense because the jury is permitted to consider whether the government’s evidence has been contradicted.   As the DCCA pointed out, the Redbook instruction on witness credibility “tells the jury that it ‘may consider whether the witness has been contradicted or supported by other credible evidence.’”  Slip op. at 6 (quoting Criminal Jury Instructions No. 2.200 “Credibility of Witnesses”).  NG

Read full opinion here.

Amendment of Information Was in Error Despite Lack of Prejudice, But Reversal Not Warranted Because of Lack of Prejudice

Sinatra V. Sutton v. United States (decided June 23, 2016)

Players:  Associate Judges Fisher & Thompson, Senior Judge Ruiz.  Opinion by Judge Ruiz.  Trial Judge:  Harold Cushenberry, Jr.  Richard S. Stolker for Mr. Sutton.

Facts:  A fifteen-year old, V.A., testified that Mr. Sutton masturbated in front of him, grabbed V.A.'s hand and tried to put it on his penis, and then put his arms around V.A. from behind in a "hugging position," at which point V.A. felt what he assumed to be Mr. Sutton's penis against his back near his buttocks.

The government charged Mr. Sutton by information with two counts of misdemeanor sexual abuse (MSA) of a child -- one for touching Mr. Sutton's own penis in front of V.A. and a second for touching V.A. close to the buttocks -- as well as a count of attempted MSA of a child for Mr. Sutton allegedly attempting to grab V.A.'s penis when he wrapped his arms around V.A.  On the day of trial, the government orally moved to amend the charge of attempted MSA of a child to attempted MSA, predicated on Mr. Sutton's alleged attempt to place V.A.'s hand on his own penis.

Issue 1:  Should the trial judge have allowed the government to amend the information?

Holding 1:  No, but the error does not require reversal.  Rule 7(e) allows the judge to "permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Super. Ct. R. Crim. P. 7(e).  Here, the government's amendment charged a "different offense" -- attempted MSA in place of attempted MSA of a minor, which are different crimes set forth in different sections of the Code and with different elements.  Hence, Rule 7(e) prohibited the amendment regardless of whether it prejudiced the defendant.

However, no reversal is required on appeal because there was no prejudice.  The defense did not request a continuance after the amendment, the change was irrelevant to the defense strategy, and, had the amendment been denied, the government could have achieved the same result by dismissing the information (jeopardy had not yet attached) and refiling the charges in a new information.

Issue 2:  Should convictions for MSA of a child and attempted MSA merge?

Holding 2:  No.  MSA of a child and MSA do not merge under the Blockberger test because each contains an element the other does not -- MSA of a child has age requirements, while MSA has an element that the defendant know that the complainant does not consent.  Moreover, the charges in this case arose from discrete acts:  the defendant masturbating in front of a child and attempting to put the child's hand on the defendant's penis.  These two acts were separated by a "fork in the road" at which point the defendant could have ceased his conduct, and separate convictions and punishments were therefore warranted.

Of Note:  The Court also rejected a sufficiency-of-the-evidence challenge under the familiar rule that the testimony of a single witness -- here, V.A. -- is sufficient to establish guilt beyond a reasonable doubt.  DG

Read full opinion here.

Rule 41(b) and the Fourth Amendment permit search warrants for DNA evidence from a witness or a victim to a crime.

 In re Grand Jury Witness G.B. (decided May 26, 2016).

Players: Associate Judges Easterly and Thompson, Senior Judge Nebeker. Opinion by Thompson. Concurrence by Nebeker. Trial Judge: Melvin Wright. Murad Hussain and Mary Kennedy for G.B.

Facts: Appellant, G.B. was a witness and victim to a stabbing. Police officers spoke to G.B. at the hospital and he told them the stabbing occurred at his apartment, that he knew he did it, but that he did not “want to do anything about being stabbed.” Police went to the apartment and saw blood on the floor and on a doormat. A witness told police he saw the incident and provided the name of the person he saw do the stabbing. Police found blood inside that person’s rental vehicle. The government then sought an indictment and asked G.B. to give a saliva sample to test for DNA. G.B. declined, so the government obtained a search warrant to take the sample by the buccal swab method to see if it matched the blood inside the vehicle. 

G.B. filed a motion to quash the warrant, emphasizing that his status as a victim made the warrant invalid. Judge Wright denied the motion but by that time the warrant had expired. The government indicated it would seek another warrant and G.B. said he would file a motion to quash any search warrant for his DNA. Judge Wright again denied the motion but ruled that the DNA sample would be restricted to use in this case only. G.B. noted this appeal to challenge that ruling and the government agreed not to seek a new warrant until the Court of Appeals decided the case. 

Issue:  Can an investigative search warrant issue to forcibly take the DNA of a witness who is not suspected of participating in the crime for which the DNA is sought?

Holding: Yes. First, the Court ruled that Super. Ct. Crim. R. 41(b) does provide a basis for the issuance of the warrant in this case. The Rule sets out the requirements for when a warrant may be issued and the Court ruled that G.B.’s DNA evidence constituted “evidence of the commission of a criminal offense,” within the meaning of 41(b)(1). The Court disagreed with G.B. that his DNA was “simply evidence that might lead to other evidence.” A warrant can issue under this provision if its collection “will aid in a particular apprehension or conviction.” Here, if the DNA is a match it would “aid” in a possible conviction and that is sufficient to meet the rule’s requirement. The Court also disagreed with G.B. that Rule 41 only authorizes the search of property and not the seizure of the person, which would be needed to take his DNA sample.  The Court, relying on Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), stated that “notwithstanding privacy expectations with respect to the human body, it is not always necessary to justify independently the momentary seizure of a person that occurs when the government takes samples of the person’s bodily fluids.” Also, even if taking of the sample required a “seizure,” it does not require independent justification because it is merely “incidental to the search authorized by the search warrant,” and the Fourth Amendment permits such seizures. See Michigan v. Summers, 452 U.S. 692, 696 (1981).

Next, the Court disagreed with G.B.’s argument that because he was just a witness there was not sufficient “probable cause of his guilt” to justify the issuance of the warrant. The Court said the probable cause needed for a search warrant only requires probable cause to “believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” There is no requirement that the evidence sought must be used against the person it is being sought from. “Nothing on the face of the [Fourth] Amendment suggests that a third-party search warrant should not normally issue[,] and “it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of a crime and is subject to arrest[.]”

Lastly, the Court ruled that the proposed search would be reasonable. The Court said there was probable cause to believe that the “things” to be searched for – the DNA – would be located on the property for which entry is sought and this search was not premised on obtaining evidence by “mere chance.” Also, it is reasonable to conclude that evidence relevant to the suspect’s guilt will be found. The government had obtained blood from the suspect’s rental vehicle and, based on statements from the witness, had reason to believe G.B.’s blood would be found inside the car. And, the Court ruled the search here – taking a swab from the inside of G.B.’s cheek – would be performed in a reasonable manner. The procedure involves “no risk, trauma, or pai[n].” And the procedure is quick and can be conducted “virtually anywhere” with “a minimum of inconvenience or embarrassment.” Another factor supporting the reasonableness of the search is the seriousness of the crime and that there are not less intrusive means of obtaining the evidence. And finally, the Court ruled the search was reasonable because Judge Wright had ordered that the sample only be used in this case and the order “prohibits” entering G.B.’s DNA into any database and requires the government to destroy any remaining DNA from G.B.’s sample at the conclusion of the instant case. 

Of Note:

• Judge Nebeker filed a concurring opinion where he agreed with the entirety of the Court’s ruling with the exception that he did not believe that Judge Wright’s order to limit the collection of G.B.’s DNA to this case should be a factor in the reasonableness determination. “Destroying the evidence does not make the search any more or less at the time it occurred or make the manner performed any more or less reasonable.” In relying on that factor, the majority pointed to language in Maryland v. King, 133 S. Ct. 1958, 1980 (2013), which found a statute subjecting those in custody for serious offenses to a buccal swab to collect DNA reasonable, in part, because the statute limited the purpose of the evidence to be collected to “identification only.”

• Judge Nebeker did not believe that the King opinion factored into its decision “whether limitations on future use of DNA evidence for identification purposes was a factor in determining the reasonableness” of the search. He wrote that the Supreme Court mentioned the limitation only as support for why the search itself would not subject the person to a further intrusion of privacy other than providing identification information, as compared to a more invasive search that would provide information such as genetic traits.  Because of that, he concluded it was “unnecessary” for the majority to rely on that factor in its analysis. Also, he wrote that preserving the evidence had “additional salutary effects” for its potential to exonerate those “wrongly convicted of crimes or even identifying human remains.” He wrote that to any extent a witness’s DNA sample should be destroyed, it should not be done by a court’s order but left to the legislature to make that determination on public policy grounds. BM

Read full opinion here.

Common law or not, element or term, “serious bodily harm” has a constant definition and a trial court must define it for the jury when asked.

Edward Brown v. United States (decided May 26, 2016).

Players: Associate Judges Easterly and Beckwith, Senior Judge Nebeker. Opinion by Easterly. Concurrence by Nebeker. Trial Judge: Ronna Lee Beck. PDS for Mr. Brown.

Facts: Torita Burt testified that Mr. Brown struck her on the head with the blunt end of a hatchet while she was visiting him in his apartment. She said he then pinned her to the bed by her throat and would not let her leave unless she would have sex with him. She agreed, and after they had sex, she was allowed to leave. Mr. Brown told a different story where he admitted hitting Ms. Brown in the head, but said he did so only after she had demanded money from him to buy drugs and had taken his cell phone. He said she swung the hatchet at him first, but missed. They then struggled over it and he wound up hitting her over the head with it. He denied ever demanding sex from her that night or grabbing her by her throat. In a phone call to his girlfriend after he was arrested, Mr. Brown said that he hit her because she was stealing from him. 

At trial, the jury was instructed on self defense and defense of property, based on the phone call.  Defense of property authorizes the use of reasonable, nondeadly force to repossess personal property. Deadly force is defined as “force that is likely to cause death or serious bodily harm.” The defense asked the court to define for the jury the term “serious bodily harm,” using the definition from the aggravated assault instruction, which states that serious bodily harm is an “injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental faculty or a substantial risk of death.” The trial court, however, refused to provide any definition, ruling that it was a “common law term . . . and that’s very different from a legislated definition for purpose[s] of defining a crime such as aggravated assault.”

The jury acquitted Mr. Brown of first-degree sexual abuse while armed and kidnapping while armed, but convicted him of assault with a dangerous weapon and assault with significant bodily injury.

Issue:  Did the trial court err in refusing to define the term “serious bodily harm,” as it is defined in the aggravated assault context, when defining defense of property for the jury?

Holding: Yes. The Court ruled that while it is an abuse of discretion standard when reviewing whether an instruction should be given, the court reviews de novo the content of the instruction actually given. The Court then ruled that the term “serious bodily harm” does have a “fixed meaning synonymous with ‘serious bodily injury’ as used in the context of aggravated assault.” “We see no reason the degree of serious bodily harm that establishes ‘deadly force’ and in turn precludes the defense-of-property defense should be quantitatively different from the degree of ‘serious bodily harm’ that sustains a conviction for aggravated assault.” The Court explained that although it does not want people using deadly force to protect property, a person should be able to use reasonable force that is more than just significant bodily injury. And, even though defense of property is a common law defense, that does not mean that the “proper application of the defense is left entirely to the jury’s unfettered discretion.” Thus, because “serious bodily harm” in the defense of property context is synonymous with “serious bodily harm” as defined in aggravated assault, the trial court should have defined the term for the jury. “This instruction would have helped the jury to locate the line between impermissible deadly force and permissible nondeadly force.”

But, the Court ruled that any error was harmless beyond a reasonable doubt. The Court, at footnote 28, writes that “[o]ur case law arguably does not resolve whether [instructional] error was constitutional (triggering review under Chapman v. California, 386 U.S. 18, 24 (1967), to determine if the error was harmless beyond a reasonable doubt) or non-constitutional (triggering review under Kotteakos v. United States, 328 U.S. 750, 765 (1946), to determine if we can say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error’).” The Court did not resolve the dispute, ruling that even if the Chapman standard applies that any error was harmless beyond a reasonable doubt. The Court noted that the defense at trial focused more on self defense, as compared to defense of property, and that striking someone in the head with a hatchet to retrieve a cell phone when that person was inside your apartment was not reasonably necessary, regardless of the definition of serious bodily harm a jury might have used. 

Of Note:

• The opinion makes clear that whether a phrase is considered a term or an element, or it is part of a common law defense or a statutorily defined crime, does not dictate whether the phrase should be defined for the jury. The key question is does the term have a consistent applicable definition that the jury needs to properly understand.

• The Court’s opinion, at footnote 26, while not expressly overruling Savage-El v. United States, 902 A.2d 120 (D.C. 2006), makes clear that Savage-El does not stand for the argument that a trial court does not have to define terms for a jury, as compared to elements. “To the extent that the court [in Savage-El] distinguished between elements and definitional terms, it did so to support its determination ‘that there was no meaningful risk of [jury] confusion or misunderstanding . . . in the context of the factual circumstances here’ and thus no instructional error.”

• Also, this case can be used to support an argument that a trial court should provide a defense instruction, even when the evidence in support is not overwhelming. At footnote 29, the Court acknowledges there was minimal evidence (one comment made by Mr. Brown during a phone call) to support the defense of property instruction but that was sufficient to meet the “some evidence” standard to give a defense instruction.

• Judge Nebeker wrote a concurring opinion where he agreed any error was harmless, but did not think the court should have reached any decision on the proper definition of serious bodily harm in the defense of property context, writing, “as a general rule this court will decide only such questions as are necessary for a determination of the case presented for consideration, and will not render decisions in advance of such necessity.” Judge Nebeker wrote that it is inconsistent with “judicial efficiency” to even identify an error if the court is going to conclude the error was harmless. The majority opinion, at footnote one, counters that “Our colleague expresses concern about judicial efficiency, but, in the appropriate case, clear explication of the law promotes that goal.” BM

Read full opinion here.