“Do Not Disturb”: Fruits of Warrantless Entry into Motel Room Suppressed

Nyia Gore v. United States (decided August 18, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor. Opinion by Judge Glickman. Bryan P. MacAvoy for Ms. Gore. Trial Judge Zoe E. Bush.

Facts: Officers Tobe and Collins responded to a 911 call at a Motel 6 in Northwest, Washington, D.C. The caller, Mr. Ward, met the officers in the parking lot and requested help retrieving property from Ms. Gore, who resided in a room with her two children and refused to let him back in. Mr. Ward showed the officers a text message from Ms. Gore that said she had “trashed [his] shit.”

The officers knocked and identified themselves. Ms. Gore opened the door but did not come out. When asked about the property, she stated she had already thrown it away outside. Officers told Ms. Gore she had committed a crime and would be arrested unless they could retrieve the property. Upon learning that Mr. Ward was present, Ms. Gore shouted for him and walked toward the doorway but was met and handcuffed by the police, who entered the room without her consent. Thus detained, Ms. Gore admitted destroying Mr. Gore’s property, which was still in the bathroom. Officer Tobe then escorted Mr. Ward to the bathroom where his property lay ripped, torn, and broken. Ms. Gore was later charged with and convicted for misdemeanor malicious destruction of property.

Issue 1: Whether the evidence was sufficient to sustain the conviction?

Holding 1: Yes. These circumstances do not permit the Court to second-guess the trial court’s determination of Mr. Ward’s credibility.

Issue 2: Whether Ms. Gore’s unwarned statements should have been suppressed under Miranda?

Holding 2: No. Ms. Gore’s freedom of movement was not restrained enough for her to be considered in custody, when the police were outside her door. The Court need not determine the admissibility of her subsequent unwarned statements under Miranda because it finds that they should have been suppressed under the Fourth Amendment (see below).

Issue 3: Whether fruits of the warrantless entry into Ms. Gore’s apartment should have been suppressed?

Holding 3: Yes. Although police had probable cause to believe that Ms. Gore had maliciously destroyed Mr. Ward’s property and perhaps even that evidence of that crime might be found in the room, there were no exigent circumstances to justify warrantless, nonconsensual entry. Officer Tobe’s testimony that police “could have” gotten a warrant did not prove inevitable discovery where the police had not begun that process at the time of entry.

Of Note:

• By analogizing Ms. Gore’s room to a house, the Court of Appeals indirectly repudiates the trial court’s assessment that the police were allowed to enter with mere probable cause to arrest her. This analogy comports with well-settled Supreme Court caselaw. See Hoffa v. United States, 385 U.S. 293, 301 (1966); Stoner v. California, 376 U.S. 483, 490 (1964).

• The house analogy is also the undoing of Ms. Gore’s Fifth Amendment claim, as the Court of Appeals cites home-based “knock and talk” cases to support that the attempt to interview her from outside the room was noncustodial: e.g., Hughes v. United States, 640 F.3d 428 (1st Cir. 2011);United States v. Titemore, 437 F.3d 251 (2d Cir. 2006). 

• This analogy is not without complications. In Hughes, two law enforcement officers interviewed appellant in the living room of his relatively small, island house, while another was in the kitchen and still another wandered in and out of the house. 640 F.3d at 432. The First Circuit found this encounter noncustodial, noting, among other things, Hughes’s familiarity with the house and the lack of any attempt to “exploit its cozy confines.” Id. at 436. The Second Circuit found that Titemore had not been subject to custodial interrogation when police approached his lakeside Vermont home from a side door and asked to speak about a report of vandalism and a missing firearm. Titemore, 437 F.3d at 260. Police attempts to exploit aside, Ms. Gore’s motel room was arguably much “cozier” and less familiar than either of these settings. Advocates in future cases should emphasize the psychological impact of such circumstances where possible.  WC

Read full opinion here.

EMAILGATE: Courtroom Clerk Emails Prosecutor Mid-Trial To Tell Him The Witness Is Lying About A Football Game.

Gordon Carpenter & Tyrone Jones v. United States (Decided August 11, 2016).

Players: Associate Judges Thompson and Easterly, and Senior Judge Farrell. Opinion by Judge Thompson. Marc Resnick for Mr. Jones and Abram Pafford for Mr. Carpenter. Trial Judge: Patricia Broderick

Facts: A jury convicted Mr. Jones and Mr. Carpenter of unlawful distribution of heroin after a buy/bust operation. Before trial, Mr. Carpenter moved to suppress physical evidence that police found during a search incident to arrest, a motion the court denied.

Then, during trial, an officer testified that as an arrest team member, he does not get too close to the undercover officers involved in buy/bust operations because that would put their lives in danger. Mr. Carpenter objected to this testimony and moved to strike. Judge Broderick refused to strike the testimony, even though she mused in open court that “there’s certainly no suggestion that life was endangered by these defendants.”

Finally, both defendants testified during trial that the money police saw them exchange during the buy/bust operation was actually them settling a sports debt. Mr. Jones had bet Mr. Carpenter $20 that the Washington Football Team would beat Mr. Carpenter’s favorite team (“probably” the Steelers, 49ers, or Dolphins). Mr. Jones lost that bet because the Washington Football Team lost that game. After the jury returned its verdict but before sentencing, the government notified the defense that the prosecutor had received an email from the courtroom clerk stating that the defendants were lying about the football game. The email exclaimed: “Washington WON that week, and they played the Oakland Raiders . . . so they are not telling the truth!!” Mr. Jones moved for a mistrial, which Judge Broderick denied because there was “no evidence that any of this information, which was public information that anyone could’ve gotten, ever got to the jury.”

Issue 1: Did the trial court err in denying the motion to suppress physical evidence police recovered from Mr. Carpenter?

Holding 1: No. As a threshold matter, the Court clarified that although Mr. Carpenter’s brief styled the issue as “whether there was probable cause for his arrest,” his argument focused on whether “the arrest team officers were justified in stopping him,” thus the Court treated the issue as whether there was reasonable articulable suspicion (RAS) for police to stop him. The Court held that there was RAS based on the lookout police received after the drug transaction: “two African American males, both had hats on, one had a gray hoody and white shirt and the other had a blue hood and a cane.” Police arrived at the scene within a minute and found appellants matching the description on the same block described in the lookout.

Issue 2: Did the trial court err by failing to strike the officer’s testimony that “he didn’t want to be too close to the undercover officers because he would be putting their lives in danger?”

Holding 2: Maybe, but the error was harmless. The Court noted that Judge Broderick seemed to agree when the testimony was objected to that it was irrelevant, and thus the Court opined that it would have “preferable” for her to strike the testimony. But “in light of the facts Judge Broderick at least signaled to the jury that this testimony had no bearing on Carpenter’s trial; that the government did not highlight this testimony in closing; and that the evidence establishing Carpenter’s guilt was otherwise strong,” the error was harmless.

Issue 3: Did the trial court err by denying a mistrial after the courtroom clerk’s ex parte communication with the prosecution during trial came to light?

Holding 3: No. The Court of Appeals noted that the email was “clearly improper” given Code of Judicial Conduct Rule 2.9(A)’s prohibition against judges “permitting” ex parte communications, and Rule 2.9 (D)’s requirement that judges “make reasonable efforts, including providing appropriate supervision” to ensure the rule against ex parte communications is “not violated by court staff.” Nevertheless, the Court held that “the record does not establish that Judge Broderick failed to caution her staff or to make the requisite reasonable efforts,” nor does it “establish that Judge Broderick learned of the courtroom clerk’s email or its contents before the government’s [ ] disclosure.” While Judge Broderick learned about the email before she sentenced Mr. Jones, the sentence Judge Broderick imposed — twenty months’ incarceration and three years’ supervised release, suspended as to all but six months’ incarceration and eighteen months’ probation, which was at the “very low end” of Jones’ twenty to forty-months guidelines range — belied any claim of prejudice. Moreover, Mr. Jones did not claim that the prosecutor took any action based on the clerk’s email or that the email affected jury deliberations.

Of Note: In footnote 19, the court noted that the “timing of the government’s disclosure of the email” was “troubling,” because “had the government disclosed it earlier, Judge Broderick would have been alerted in a more timely fashion to the need to instruct and admonish her courtroom clerk.”  DH

Read full opinion here.

Court Upholds Restricting Evidence of Decedent’s Violent Character to Bare Fact of Prior Conviction, Where Details Underlying Conviction Might Paint Decedent as a “Bad Guy”

David A. Shepherd v. United States (decided August 4, 2016)

Players: Associate Judges Fisher and Thompson, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Shepherd. Trial Judge: Russell F. Canan.

Facts: Mr. Shepherd was convicted for shooting to death a new acquaintance, Henry Charles Miller, after a heated exchange of words. Mr. Shepherd claimed self-defense, testifying that Mr. Miller pulled a gun on him after the argument, that he then grabbed the gun, and that it went off during the ensuing struggle. Several eyewitnesses testified to the contrary that Mr. Shepherd produced the gun and shot Mr. Miller in the face at close range. To support its contention that Mr. Miller was the first aggressor, the defense was permitted to introduce evidence that he recently had been convicted of attempted robbery and misdemeanor assault. It was not permitted to introduce evidence that the assault conviction was for breaking into his ex-girlfriend’s house while highly intoxicated, tearing off her clothes, repeatedly slamming her head against a wall, spitting in her face, and hitting her in the head with a towel rod in front of her children.

Issue: Did the trial court abuse its discretion when it excluded the details of the decedent’s prior, violent assault on his ex-girlfriend?

Holding: No. While defendants in homicide prosecutions may be permitted to put on evidence of the decedent’s violent character to support a claim of self-defense, they do “not have an absolute right to introduce such evidence.” The trial court has “broad discretion” to decide how much and what type of first aggressor evidence the jury will hear and may exclude such evidence if its probative value is outweighed by the danger of prejudice. Factors to be considered in balancing the value of first aggressor evidence are: “[1] the form of proof (accusations or convictions), [2] whether presenting it would waste trial time or confuse the issues, [3] remoteness in time, [4] the decedent’s character in the interim, and [5] the ‘type’ of violence evidenced by the act.” Here, the Court of Appeals acknowledged that Mr. Miller’s prior assault “certainly” indicated he had a violent nature, and that the circumstances were similar to the charged shooting in that Mr. Miller was intoxicated at both times. Nevertheless, it held that the probative value of the prior assault was limited because the circumstances were otherwise quite different: an incident of domestic violence versus allegedly pulling out a gun and shooting someone Mr. Miller had just met. Moreover, the Court opined, the violent details of the prior assault did nothing to illuminate the sole fact truly at issue in this case: whether it was Mr. Miller or Mr. Shepherd who brought a gun with him to the scene where they met and argued. The risk that the jury would illogically conclude Mr. Miller brought the gun simply because of this persuasive evidence that he was a “bad guy” was substantial enough to justify the trial court’s exclusion of the prior assault details.

Of Note:

• The Court acknowledged the difficulty of balancing probative value against prejudicial impact for specific instances of violent conduct by the decedent. Such evidence, it observed, is both the most convincing character evidence and the most likely to cause prejudice, confusion, surprise, or a waste of courtroom time.

• The Court also considered Mr. Shepherd’s claim that the trial court erred in issuing, after the government mischaracterized several points of evidence in its rebuttal argument, only a standard curative instruction that the jury’s recollection controls. While the Court agreed that the prosecutor misstated the evidence and warned that “it is vital for a prosecutor to choose her words carefully” lest she “needlessly jeopardize convictions,” it deferred to the trial court’s conclusion that the statements at issue here were not “such a mischaracterization of the record to warrant any further remedy.” FT

Read full opinion here.

Court Warns That Red Book’s “While Armed” Instruction Can Impermissibly Imply That Defendant Did, In Fact, Possess Charged Weapon

Nathaniel Cousart v. United States (decided August 4, 2016)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman. Opinion by Judge Steadman. Matthew J. Peed for Mr. Cousart. Trial Judge: Patricia A. Broderick.

Facts: Mr. Cousart was convicted of aggravated assault while armed (AAWA) for stabbing one Mr. Barrett with a knife, and with ADW for again taking out his knife and stepping threateningly toward a private security guard who came to Mr. Barrett’s aid. The security guard testified that he drew his gun in response, prompting Mr. Cousart to retreat and throw the knife down a sewer before he was apprehended. The trial court instructed the jury on AAWA using language taken virtually verbatim from Red Book Instruction 4.103, describing the elements of aggravated assault, followed immediately by Instruction 8.101(B), the “while armed” instruction. The latter began, “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use. . . .” In instructing the jury on ADW, the trial court read Red Book Instruction 4.101, Option A, which defines the attempted-battery theory of ADW. It did not include bracketed language from that instruction requiring the jury to determine whether Mr. Cousart “had the apparent ability to injure” the complainant at the time of the offense. The defense did not object to either instruction.

Issue 1: Was the trial court’s AAWA instruction an improper partial directed verdict that Mr. Cousart did, in fact, possess the knife as a dangerous weapon?

Holding 1: No. Considering the jury instructions as a whole, under the rigorous plain error standard of review, the Court of Appeals held that there was no reasonable probability that jurors would have understand the challenged sentence to mean they did not have to determine whether Mr. Cousart actually possessed the alleged knife (and whether the knife met the definition of “dangerous weapon”). Nevertheless, the Court urged trial judges to take care in using the Red Book’s “while armed” Instruction, which begins, “At the time of the offense, [name of defendant] was armed with, or had readily available,” followed by a bracketed list of weapons to which the enhancement applies. The Court warned that “when this instruction is simply tacked on to a prior instruction without a clear indication that it is a statement of what the jury must find and not an assertion that the defendant did in fact carry some particular item, it could be subject to misinterpretation.”

Issue 2: Did the trial court’s omission of the “apparent ability to injure” element from its ADW instruction require reversal?

Holding 2: No. The Court of Appeals assumed without deciding that an apparent ability to injure is a required element of attempted-battery assault (as it is for intent-to-frighten assault), but declined to reverse on plain error review. In light of the government’s evidence that Mr. Cousart advanced on the security guard while brandishing the knife in a frightening enough manner to prompt him to draw his gun, the Court concluded that there was no reasonable probability the jury would have reached a different verdict had it been instructed that it must find Mr. Cousart had the apparent ability to injury the security guard.

Of Note:

• The Court of Appeals also held that there was sufficient evidence of attempted-battery ADW based on Mr. Cousart’s pulling out his knife before stepping toward the security guard. It noted, however, that it was a “close” sufficiency call. FT

Read full opinion here.

Unpreserved Error, but No Reversal, Where Trial Court Omitted from Reasonable Doubt Instruction Red Book Language Contrasting Burdens of Proof in Civil and Criminal Cases

Daniel Griffin v. United States (decided August 4, 2016)

Players: Associate Judges Fisher & McLeese, and Senior Judge Steadman. Opinion by Judge Fisher. Enid Hinkes for Mr. Griffin. Trial Judge: John McCabe.

Facts: Mr. Griffin was charged with various weapons offenses. Near the end of trial, the court circulated proposed jury instructions. The reasonable doubt instruction was taken verbatim from Red Book Instruction 2.108, except it omitted three lines comparing the burden of proof in civil and criminal cases: In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Defense counsel indicated approval of the proposed instructions. When the trial court read the instructions to the jury, it also omitted the opening line of the reasonable doubt instruction: The government has the burden of proving the defendant guilty beyond a reasonable doubt. The defense did not object, and Mr. Griffin was convicted on all counts.

Issue: Did the omissions from the reasonable doubt instruction require reversal?

Holding: On plain error review, the Court of Appeals found instructional error, but held that it did not require reversal. It was clearly error for the trial court to omit language from the Red Book instruction, which replicates the reasonable doubt instruction adopted by the en banc Court in Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc), because the Smith court advised “in the strongest terms” that trial courts are not to alter or embellish the language it crafted. Id. at 82-83. Nevertheless, the instructions as a whole — which contained the bulk of Red Book Instruction 2.108 along with several other statements that the government must prove each element of the charged offenses beyond a reasonable doubt — “correctly convey[ed] the concept of reasonable doubt” and did “not inaccurately describe that concept or lessen the government’s burden.” As such, the court’s error was not structural in nature and did not affect Mr. Griffin’s substantial rights. Because Mr. Griffin did not satisfy this third prong of plain error review, the Court of Appeals affirmed his conviction.

Of Note:

• The Court emphasized that it continues “to discourage, ‘in the strongest terms,’ any deviation from the instruction prescribed in Smith.

• The Court noted that where the trial court’s jury instructions misdescribe the burden of proof, a structural error results. When preserved by timely objection, such a structural error requires automatic reversal without the traditional harmlessness analysis. When unpreserved, such an error remains subject to plain error review, though the third prong of plain error review is automatically satisfied. FT

Read full opinion here.