Rule 33 Held Non-Jurisdictional; Due Diligence Prerequisite Rejected for Claims of Juror Misconduct Discovered Post-Trial

Poth v. United States (decided December 29, 2016).

Players: Judges Glickman and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith. Enid Hinkes for M.P.  Trial Judge Russell F. Canan.

Facts:  Following M.P.'s conviction for voluntary manslaughter while armed, defense counsel “Googled” M.P.’s jurors and learned that Juror 061 had a prior felony conviction and that Juror 703A had been the complainant in an assault.  The government subsequently disclosed that Juror 061 had several other convictions and that Juror 703A had been the complainant in another assault.  This information was sought during voir dire but omitted from the jurors’ responses.  

Issue 1:  Whether review of M.P.’s motion for new trial was barred by extensions of time to file that did not comply with Super. Ct. Crim. R. 33? 

Holding 1:  No.  Rule 33’s time limit “is not jurisdictional,” as it is not mandated by constitution or statute.  Slip. Op. at 6. The government waived Rule 33’s protection by failing to object to all but one of the requested extensions and representing that it had no objection, as long as it was given proportional time to respond.  Id. at 8.

Issue 2:  Whether the trial court erred by denying M.P.’s motion based on defense counsel’s purported failure to exercise due diligence in discovering the alleged misconduct?

Holding 2:  Yes.  “Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.”  Id. at 10.

 

Issue 3:  Whether, on remand, the trial court may grant relief without an evidentiary hearing?

Holding 3:  Yes.  If it is no longer possible to hold a fair hearing to determine whether the jurors were biased, the motion for new trial should be granted outright.  Id. at 14.  Further, in the absence of evidence satisfactorily explaining Juror 061’s failure to disclose his prior convictions, the trial court should presume that his failure was intentional and thus highly probative of his inability to render a fair and impartial verdict. Id. at 15.

Of note:

• In holding that Rule 33’s time limit is not jurisdictional, the Court of Appeals recognized that one contrary precedent – Diamen v. United States, 725 A.2d 501 (D.C. 1999) – has been undermined by subsequent Supreme Court cases and that another – Dean v. United States, 938 A.2d 751 (D.C. 2007) – did not pass upon this precise question.  See Slip. Op. at 7 & n.7.  Neither Dean nor Diamen is good law on this issue.

• The Court of Appeals rejected the argument that a “due diligence” requirement is needed to prevent sandbagging because, given the uncertain prospect of obtaining post-trial relief, a defendant is always better served by raising a claim of juror bias immediately.  Slip Op. at 12-13 n.13.  Indeed, although this opinion removes one procedural hurdle to post-trial relief (jurisdictional time bar) and prevents another from taking root (due diligence), a defendant seeking a new trial based on juror misconduct must still prove actual juror bias, a burden that should not be underestimated.  WC

Read full opinion here.

Neglect procedures are unconstitutional; parents entitled to hearing before permanency goal is changed to adoption

In re Ta.L. (decided December 8, 2016).

Players: En banc opinion by Chief Judge Eric T. Washington; with Associate Judges Glickman, Fisher, and McLeese dissenting but concurring in the judgment; and with Associate Judges Beckwith and Easterly joining in part but dissenting from the judgment.  Tanya Asim Cooper and Joyce Aceves-Amaya for E.A., Leslie J. Susskind for A.H., N. Kate Deshler Gould for A.H. and T.L., and Melanie L. Katsur for R.W. and A.W.  Amici briefs filed by Kelly Venci; PDS; the Children’s Law Center; Legal Aid Society of the District of Columbia; National Association of Counsel for Children; Center for Family Representation, Inc.; Family Defense Center; and multiple law professors.  Trial judge: Neal E. Kravitz.

Summary: We take a brief interlude from criminal law decisions to highlight an important en banc family law decision.  In this case, the Court considered whether the constitutional rights of biological parents to raise their children are effectively protected under the current statutory scheme in neglect cases.  Specifically, appellants contended that “when a trial court changes the goal of a neglect proceeding from reunification to adoption, it informally terminates the pending neglect case and effectively puts the case on an almost unalterable path to adoption without a full evidentiary hearing or recourse to an appeal.”  Slip op. at 22.  Appellants and several amici contended that parents should be able to challenge a trial court’s determination that they are not making sufficient progress toward reunification.  The Court agreed, holding that “a trial court’s grant of a permanency goal change from reunification to adoption over the parents’ objection, without an adjudicatory hearing to determine whether the District has fulfilled its duty to expend reasonable efforts to reunify the family, violates a parent’s procedural due process rights and, therefore, is appealable by the parents as a matter of right.”  Id. at 24.  In doing so, the DCCA overruled In re K.M.T., 795 A.2d 688 (D.C. 2002), which found that a change of permanency goal is not appealable because it is merely a step towards the termination of parental rights or an adoption and is not final.  Now, a change in the permanency goal of a neglect case from reunification to adoption is an order subject to immediate appellate review.  Furthermore, before a court can terminate parental rights, it must first make a finding that the parents are unfit, unless truly exceptional circumstances exist or the parents have otherwise stipulated to their continued unfitness.  Id. at 55.  NG

Read full opinion here.

Wondering whether injuries amount to “significant bodily injury” for felony assault? Read this case!

Belt v. United States (decided December 8, 2016).

Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Blackburne-Rigsby.  Daria J. Zane for C.B.  Trial Judge: Franklin Burgess.  

Summary:  This case stems from a fight between C.B. and two of her former friends, Cynthia Spenard and James Tolbert III.  At trial, C.B. was accused of assaulting Mr. Tolbert with a meat cleaver, causing an inch-long laceration to his forehead and an inch-and-a-half long laceration to his shoulder.  The main issue on appeal was whether these injuries amount to “significant bodily injury,” as required for a felony assault conviction.  In this opinion, the Court seeks to clarify the District's case law on what constitutes sufficient evidence to sustain a felony assault conviction.  Here are some highlights:

• The original draft of the bill creating the offense of felony assault used the language “bodily injury.”  In response to comments from PDS, the Council adopted the term “significant bodily injury,” to incorporate injuries “more serious than mere bodily injury such as slapping but less serious than serious bodily injury.”  Slip op. at 8 (insertion and quotations omitted).  The committee report on the bill states that the Council’s intent was for the crime of felony assault to cover assaults that result in “significant (but not grave) bodily injury.”  Id. at 9 (quotation omitted). 

• “[T]here are two independent bases for a fact finder to conclude that a victim has suffered a significant bodily injury: (1) where the injury requires medical treatment to prevent ‘long-term physical damage’ or ‘potentially permanent injuries’; or (2) where the injury requires medical treatment to abate the victim’s ‘severe pain.’”  Id. at 11.

• The relevant fact is not whether the individual receives medical attention “but whether medical treatment beyond what can administer himself is immediately required to prevent ‘long-term physical damage, possible disability, disfigurement, or severe pain.'” Id.  at 12 (quoting Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015) (emphasis added in Belt). 

• “[W]e can summarize the definition of ‘significant bodily injury’ as follows: to qualify as ‘significant bodily injury,’ the nature of the injury itself must, in the ordinary course of events, give rise to a ‘practical need’ for immediate medical attention beyond what a layperson can personally administer, either to prevent long-term physical damage or to abate severe pain.”  Id.

• When the medical treatment prescribed or administered, such as stitches, is something that can be performed only by trained medical professionals, the fact finder may be able to infer from the course of treatment itself that immediate medical attention was “required,” thereby establishing that the injury constituted a “significant bodily injury.”  Id. 

• The government is not required to prove through medical or other expert witnesses that the immediate medical attention that the victim received was actually necessary. 

• Evidence of the victim’s injuries and the victim’s reactions to them may allow the fact finder to infer based on “common sense” and every day experience that the victim was in “severe” pain.

• Applying these principles to Mr. Tolbert’s injuries, the Court reasoned that he sustained significant bodily injury: Mr. Tolbert testified that he felt disoriented and had a ‘little black out spell’ from the strike; he experienced significant blood loss; and after being taken to the hospital immediately after the incident, he received stitches for his forehead wound and “strips” for his shoulder wound.  NG

Read full opinion here.

Occupy DC protestors' convictions overturned: police order to clear the Occubarn was not lawful

Bolz v. District of Columbia (decided December 8, 2016).

Players: Associate Judges Blackburne-Rigsby and Easterly, Senior Judge Steadman.  Opinion by Judge Easterly.  Concurrence by Judge Steadman.  Jeffrey L. Light for appellants.  Trial judges: Magistrate Judge Elizabeth Wingo and Associate Judge Heidi Pasichow.

Facts: In the fall of 2011, Occupy D.C. protestors began demonstrating in McPherson Square.  One morning in early December, they constructed a wooden structure that they called the “Occubarn.”  After a day-long standoff, police cleared the area of the park around the Occubarn and broke down the structure.  In the course of this confrontation, police arrested several protestors.  This case stems from the District’s prosecution of the protestors for violating the D.C. Crowd and Traffic Control regulation, 24 DCMR § 2100.2, which makes it a crime to fail to obey a police crowd and traffic clearing order.  There was no dispute at trial that the protestors had failed to obey a police order to clear the area; at issue was whether the situation presented an “emergency situation” and whether the police had issued a “necessary order” under § 2100.2. The meanings of both terms were issues of first impression for the DCCA.  In a related case, protestor D.G. was prosecuted for indecent exposure and disorderly conduct for climbing onto the rafters of the Occubarn and urinating in full view of the people on site.

Issue #1: Did the construction of the Occubarn in McPherson Square constitute an “emergency situation,” as that term is used in the Crowd and Traffic Control regulation, 24 DCMR § 2100.2?

Holding #1:  Yes.  The regulation covers “fires, accidents, wrecks, explosions, parades, or other occasions [that] cause or may cause persons to collect” in specified public areas.  See § 2100.2 (emphasis added).  Applying the canon of ejusdem generis, the Court concluded that the meaning of the catchall, i.e. “other occasions,” was informed by the list of words preceding it.  The Court therefore defined the term as follows: “nonroutine incidents with elements of unpredictability and potential disturbance vis-à-vis transportation and public safety.”  Slip op. at 18.  Under this definition, the Court determined that the construction of the Occubarn in McPherson Square did constitute an emergency situation.

Issue #2:  Was the order to clear the area of the Occubarn “necessary” under the Crowd and Traffic Control regulation, 24 DCMR § 2100.2?

Holding #2: No.  The regulation lists specific areas that police are authorized to clear: “public streets, alleys, highways or parkings.”  See § 2100.1.  Applying the canon of expressio unius, the Court reasoned that an enumerated list is presumed to be exhaustive.  Since public parks are not included in the list and are “traditional fora for the exercise of First Amendment activity,” Slip op. at 21, the Court concluded that the regulation does not extend to a public park such as McPherson Square.  Furthermore, a police order may be issued under this regulation only to advance one of three enumerated objectives, including the protection of persons and property.  The Court reasoned there was no evidence that the unpermitted Occubarn might collapse and hurt people, so the District failed to prove that the order was necessary to achieve the purpose of protecting persons and property.  

Issue #3:  Is the indecent exposure statute, D.C. Code § 22-1312, unconstitutionally overbroad because it prohibits “indecent” exposure, rather than being limited to “obscene” acts?  

Holding #3:  No.  Expressive conduct that is facially within the reach of the statute is authorized elsewhere in the Code (such as expressive nudity in certain establishments licensed to sell alcohol), and even the statute’s prohibition on expressive nudity applies only “in public.”  Speech in this setting can be constitutionally regulated because minors or nonconsenting adults might be present.  Therefore, the indecent exposure statute is not substantially overbroad.

Of Note:

• If constitutionally protected conduct is prosecuted under the indecent exposure statute, plaintiffs can still bring an as-applied challenge to the provision.  D.G. did not pursue this strategy. NG

Read full opinion here.