The Youth Rehabilitation Act Gives Superior Court Judges Discretion To Set Aside A Young Offender’s Misdemeanor Convictions

Ferguson v. United States (decided April 13, 2017).

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Reid. Opinion by Judge Reid. Christine Pembroke for Mr. Ferguson. Trial Judge: Lynn Leibovitz

Facts: In September 2014, Mr. Ferguson was sentenced under the Youth Rehabilitation Act (YRA) to concurrent sentences of 30 days in jail, execution of sentence suspended, followed by 12 months of probation for two counts of attempted threats. After Mr. Ferguson was arrested on new misdemeanor charges in February 2015, the court revoked his probation and ordered him to serve the 30 days. Mr. Ferguson served his time, and in 2015, he completed his probation.

In April 2015, Mr. Ferguson moved to set side his convictions, explaining the misdemeanor case against him had been dismissed. The trial court denied the motion, reasoning, “Under D.C. Code § 24-906(b), if a defendant has served his sentence under the YRA before unconditional discharge, it is the [Parole Commission], and not the court, that has jurisdiction to set aside the conviction.”

Issue: Does the Superior Court have jurisdiction to set aside convictions under the YRA where the term of probation expires prior to a misdemeanant youth offender’s unconditional discharge?

Holding: Yes. The Parole Commission and the Superior Court have different duties depending on the category of offender. Under D.C. Code § 24-906(c), the Parole Commission is authorized to terminate the term of supervised release of a youthful felon before it expires, and if the term of release is terminated, the young offender is entitled to an automatic set aside of his/her conviction.

However, because Mr. Ferguson committed a misdemeanor, and because he was not unconditionally discharged before his probation ended, he was not entitled to the automatic set aside of his convictions. Rather, as D.C. Code § 24-906(e) “plainly states”: “If the sentence of a youth offender who has been placed on probation by the court expires before unconditional discharge, the court may, in its discretion, set aside the conviction.”

Consistent with the plain language of the statute, the trial judge did indeed have jurisdiction to consider Mr. Ferguson’s motion to set aside his convictions. The DCCA therefore reversed and remanded for further proceedings. DH

Read full opinion here

The Prosecutor Is Allowed To Argue That The Police Officer “Didn’t Do His Job”

Furr v. United States (decided April 13, 2017)

Players: Associate Judges Glickman & Beckwith, Senior Judge Pryor. Opinion by Judge Glickman. Judge Beckwith concurring in part and concurring in the judgment. PDS for Mr. Furr. Trial Judge: Russell F. Canan.

Facts: Mr. Furr, an off-duty police officer, propositioned a woman at CVS. The woman said no, and her friend, Wallace Patterson, intervened. Another off-duty police officer, Edward Stewart, was moonlighting as a private security guard at the CVS. He witnessed the dust up between Patterson and Mr. Furr, and asked Mr. Furr to leave.

Outside, Patterson and another friend walked past Mr. Furr’s car. Patterson testified that as they walked by, Mr. Furr rolled down his window and shouted at him. Patterson told Mr. Furr to get out of the car, at which point, Mr. Furr pulled a gun from his glove compartment and pointed it at Patterson.

Patterson went back to the CVS and told Officer Stewart that Mr. Furr had a gun. Stewart approached Mr. Furr’s car and called for back-up. Upon seeing Stewart approach, Mr. Furr got out of his car and told Stewart that he was a police officer too. Relieved, Stewart cancelled the request for back-up. Stewart testified at trial that Patterson never told him Mr. Furr pointed a gun at him.

The night ended with a car chase/crash and a one-way shoot-out. Mr. Furr faced a bunch of charges as a result, and he was acquitted of most of them. The only charge now at issue was the assault with a dangerous weapon count that Mr. Furr was convicted of for pointing a gun at Patterson.

The dispute on appeal revolves around MPD’s investigation into Officer Stewart’s conduct that night. The investigation concluded that Officer Stewart acted appropriately. Nevertheless, at trial, the prosecutor elicited from Stewart that MPD investigated whether he took “appropriate police action” that night. The prosecutor did not ask about the investigation’s outcome. On cross-examination, Stewart testified that the MPD investigation “exonerated him.” The defense wanted to inquire further about why he was exonerated so that the jury would understand that MPD found that Stewart properly exercised his judgment, but the government objected. The court sustained the objection, ruling that the reasons for the exoneration were inadmissible hearsay.

The prosecutor on redirect again brought up the MPD investigation. Stewart acknowledged that an adverse finding would have subjected him to serious consequences, and agreed that when the investigator interviewed him, he was trying to establish that “no crime had occurred.” The prosecutor then asked Stewart whether “it was based on what you told the investigator that you were exonerated,” to which the defense objected. The trial court sustained the objection before Stewart answered.

After a brief recess, defense counsel complained that the “prosecutor’s unanswered question inaccurately implied that Stewart was cleared in the MPD investigation only because of his own self-serving statements.” The trial court agreed that the question may have left that impression. The prosecutor suggested that the court strike the question, but defense counsel argued that would not cure the prejudice and proposed a stipulation listing what the investigation involved. The prosecutor did not like that idea, and proposed that Stewart be recalled to clarify what the investigation included beyond his statement. The court agreed with this solution, and allowed the government to recall Stewart to ask “whether there were other components to the MPD investigation besides his own interview.” Stewart confirmed that there were.

Later in the trial, the defense called MPD Lieutenant John Haines—the officer who investigated Stewart’s conduct. The government objected and the court asked the defense for a proffer of his testimony. Counsel responded that Haines would testify about what things he considered during the investigation without going into what anyone said, and would testify about the conclusion he reached. The government disputed the relevance and admissibility of the testimony, arguing that Stewart himself corrected any misimpression that the investigation considered only his account of events. The trial court agreed with the government and refused Haines’s testimony.

At the very end of the trial, the prosecutor asserted in her rebuttal closing argument that Officer Stewart “didn’t do his job” that night despite the fact that he was exonerated of any wrongdoing.

Issue 1: Did the trial court abuse its discretion by excluding Lieutenant Haines’s testimony?

Holding 1: No. The DCCA reasoned that Lieutenant Haines’s investigation of Officer Stewart was relevant and admissible for one purpose: “to show the existence of a motive for Stewart to deny that Patterson told him appellant had a gun.” Because of this, only the fact that an investigation was pursued was probative of Stewart’s motive; not what evidence was considered during the investigation, how thoroughly it was conducted, or the conclusions that were reached.

The DCCA went on to state that Haines’ testimony would not have been appropriate under the curative admissibility doctrine “to allay prejudice to appellant’s defense from the prosecutor’s implication that Stewart’s exoneration was based solely on his own statement.” The Court concluded that the “posited implication of the prosecutor’s question was not unfairly prejudicial, and in any event, Haines’ testimony was not required to correct it.”

The DCCA noted that the trial court “after careful and thoughtful consideration of proposed alternatives,” “settled on a suitable evidentiary cure: having the government recall Stewart to the witness stand” to testify that there were “other components” to the MPD investigation. According to the DCCA, it “was entirely reasonable for the court to conclude that any possible relevance of Haines’ proffered testimony was substantially outweighed by the potential for prejudice and misleading the jury . . . because it would have exacerbated the risk that the jury would treat Haines’ exoneration of Stewart as a reason to credit Stewart and find that Patterson did not tell him appellant brandished a gun.”

In sum, the DCCA concluded that the trial court correctly exercised its discretion by excluding the proffered testimony of Lieutenant Haines.

Issue 2: Did the trial court plainly err by permitting the prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his job?”

Holding 2: No. The DCCA considered this argument “unobjectionable because it was a fair comment on Stewart’s failure to investigate appellant’s encounter with Patterson and his possible testimonial bias resulting from the MPD’s investigation of that failure.”

Of Note: Judge Beckwith wrote a separate opinion concurring in part and concurring in the judgment. Judge Beckwith agreed that the trial court did not abuse its discretion by excluding Lieutenant Haines’s proffered testimony. Judge Beckwith took issue with, however, the panel’s discussion of the curative admissibility doctrine and the notion that the trial court would have abused its discretion by admitting the testimony under that doctrine. As Judge Beckwith put it, “The essential problem with the court’s analysis on this point is that it fails to fully account for the prejudice to Mr. Furr resulting from the prosecutor’s questions about the investigation into Officer Stewart’s misconduct.” Judge Beckwith explained that the jury may have concluded from the line of questioning that Officer Stewart “acquired evidenced that Mr. Furr had pointed a gun at Mr. Patterson yet had failed to act.” Given this possibility, Judge Beckwith opined that “the trial court could have admitted the testimony under the curative-admissibility doctrine to remedy the misimpression created by the government’s question . . . and to mitigate whatever remaining unfair prejudice had resulted from the government’s initial questioning about the investigation.”

Judge Beckwith also disagreed with the majority’s conclusion that the prosecutor’s rebuttal comment that Officer Stewart “didn’t do his job” was “unobjectionable” given that MPD exonerated Officer Stewart. Understanding this fact, Judge Beckwith opined that the trial court would have been within its discretion to sustain an objection to the argument. DH

Read full opinion here

A Tip From “The Neighborhood” Gave Police Reasonable Articulable Suspicion.

Jackson v. United States (decided April 13, 2017)

Players: Associate Judges Fisher & Beckwith, Senior Judge Stedman. Opinion by Judge Fisher. Opinion concurring in part and dissenting in part by Judge Beckwith. PDS for Mr. Jackson. Trial Judge: John McCabe.

Facts: Around noon, a man approached Corinthea Thompson as she was walking down the street and demanded that she hand over her belongings. When she said no, the man hit her in the head with a gun and stole her watch and gold necklace. Ms. Thomas told the police that her assailant was a dark-skinned black man with dreadlocks who had a thin build.

Ms. Thompson’s mother, Ms. Thompson-Wright, arrived on scene shortly after the incident and spoke with her daughter. Then, 45 minutes after the robbery, Ms. Thompson-Wright called the police to report a second-sighting of the robbery suspect. Officer Chih responded to find Ms. Thompson-Wright cursing and yelling, screaming the suspect was in a nearby apartment building inside of apartment 301, and that if police did not go in there and get him, she was going to go in there herself.

Officer Chih tried to calm down Ms. Thompson-Wright so she could tell him what was going on. She explained that her daughter had been robbed and she has a picture of the suspect. Ms. Thompson-Wright gave Officer Chih a picture of a dark complexioned black male with dreadlocks. She told Officer Chih that she had received the photo “from the neighborhood.”

Officer Chih called for backup. Once it arrived, he and another officer went up to apartment 301. Joyce Lewis answered the door. Officer Chih told her that they were investigating a crime and they had information that the suspect was in her apartment. Ms. Lewis told the officers that only her son was home.

Ms. Lewis invited the officers inside and her son Craig came to the door. He was not the person in the photograph. The officers asked Craig for identification and he told them it was in his bedroom. When the officers asked whether anybody else was in the apartment, both Craig and Ms. Lewis said no.

The officers followed Craig to the bedroom, where they found Mr. Jackson and his brother. They looked like the person in the photograph. Noting that the brother had a facial tattoo, Officer Chih focused his attention on Mr. Jackson, who appeared very nervous. His attention on Mr. Jackson intensified after Craig told police that Mr. Jackson’s brother had spent the night in the apartment, while Mr. Jackson showed up 15-20 minutes before the police arrived.

The police ordered Mr. Jackson not to move and patted him down for weapons. Officer Chih then left the room to coordinate a show-up, while two other officers remained with Mr. Jackson. Mr. Jackson began acting suspiciously, and then, pretending he was tired, laid back and began reaching underneath the sheet at the head of the bed. After Officer Chih took Mr. Jackson outside for the show-up, a gun was found underneath the sheet where Mr. Jackson had been reaching.

Outside, a witness identified Mr. Jackson immediately.

Issue: Did the police have reasonable articulable suspicion to seize Mr. Jackson based on Ms. Thompson-Wright’s tip?

Holding: Yes. Looking at the “overall reliability” of the tip, the DCCA opined that although Ms. Thompson-Wright did not observe the robbery herself, her tip was more reliable than an anonymous tip because she “was present before, during, and after the police investigation of her tip” and she therefore “could be held accountable for the information she gave.” The DCCA went on to note that there was nothing that suggested Ms. Thompson “had any bias or motive to falsify information.” And although Ms. Thompson-Wright’s information came from “the neighborhood,” there was enough particularized information that “the general public would be unlikely to have”—the picture and exact address—and “the fact that the information turned out to be correct enhanced the overall reliability of the tip.”

The DCCA finally pointed out other “corroborative circumstances under which Ms. Thompson-Wright’s tip panned out”: Ms. Lewis denied that anyone else in the apartment, yet the police found Mr. Jackson and his brother in the back; the brothers were behaving nervously; and Officer Chih learned that Mr. Jackson arrived at the apartment shortly before the police got there.

Thus, assessing the totality of the circumstances, the police acted reasonably when they ordered Mr. Jackson not to make any sudden moves, frisked him for weapons, and detained him pending the show-up.

Dissent: Judge Beckwith dissented, asserting that “the tip and the photograph—although transmitted through an non-anonymous intermediary, complainant Corinthea Thompson’s mother—came, for all intents and purposes, from an anonymous source (“the neighborhood”), whose reputation could not be assessed and who could not be held responsible if the allegations turned out to be fabricated.” In Judge Beckwith’s opinion, “the tip was completely conclusory” and there was no way for the police to assess its reliability. And the other facts pointed out by the majority—the Lewises’ possible dishonesty about no one else being in the apartment and “the nervousness of Mr. Jackson and his brother in the presence of the officers”—were insufficient to remedy these deficiencies.

Of Note: Mr. Jackson also argued that the old carrying a pistol statute, formerly D.C. Code § 22-4504(a), was facially unconstitutional. The DCCA rejected that argument because a “separate division of the court recently considered and rejected the same attack upon the same statute.” See In re T.M., 14-FS-199, 2017 WL 1034394 (D.C. Mar. 16, 2017).  DH

Read full opinion here.

Fighting Saliva with Saliva: As Long as there’s a Reasonable Belief of Imminent Harm, You Can Spit on Somone Who Spat at You, Even If You are a Little Angry

Parker v. United States (decided March 16, 2017)

Players: Associate Judges Thompson and Easterly, Senior Judge Ferren. Opinion by Associate Judge Easterly. Concurring Opinion by Senior Judge Ferren. Dissenting Opinion by Judge Thompson. Paul J. Riley for Ms. Parker.  Trial Judge: Judith N. Macaluso.

Facts: One evening, Ms. Parker walked outside of her home to get into a friend’s car.  Mr. Powell, a man who previously dated Parker’s daughter, began yelling threats from across the street in the direction of Parker—“[I] should go over and smack the shit out of that bitch.”  When Parker asked whether Powell was referring to her, Powell walked onto Parker’s property, aggressively stood “face-to-face” with her, and then indicated that he wanted to fight.  Powell’s mother and several brothers joined Powell in surrounding Parker, and then proceeded to hurl threats and insults at her.  When standing less than two feet from Parker, Powell spit in her face. Because Parker was “scared” and “didn’t know what [Powell] was going to do next,” she spit back.

In the moments before the spitting, a police officer arrived and saw Powell and Parker standing face-to-face, surrounded by approximately ten people.  The officer could not discern any of the specific things yelled between the two people, but did observe Parker spit on Powell.  Parker was arrested for simple assault.

At trial, the government only called the arresting officer, who only saw a limited portion of the interaction between Parker and Powell.  Relying on a self-defense theory, Parker testified that she spit on Powell because he spit first, and that she was “scared for [her] life.” Although the trial court credited Parker’s testimony and believed that she reasonably believed that she was in imminent danger of bodily harm, the court nevertheless convicted Parker because it perceived that Parker spit back because of anger or indignation.

Issue: If the government fails to disprove that a defendant reasonably believed that she was in imminent danger of bodily harm, can it still carry its burden to rebut a claim of self-defense by showing that there was another motive guiding defendant’s actions?

Answer: No.  When self-defense is raised, the fact-finder must first determine whether the defendant actually and reasonably believed that she was in imminent danger of bodily harm.  If the government cannot disprove this threshold question, the fact-finder must then look to the amount of force used by the defendant, as the defendant may use only reasonable force to repel the perceived attack and not excessive force.  The DCCA found no cases to suggest that, after a finding that the defendant actually and reasonably believed to be in imminent danger of bodily harm, self-defense is defeated if the defendant acted out of a motive of anger or retribution.  Thus, the trial court erred by injecting motive as an independent inquiry that a fact-finder must make in order to determine whether the government disproved self-defense beyond a reasonable doubt.  Ms. Parker should have been acquitted.

JW

Read the full opinion here.

“It’s not evidence tampering. . . . I was hiding evidence of a crime that police didn’t know about yet!”

Offutt v. United States, (decided April 6, 2017)

Players: Associate Judges Thompson and McLeese, Senior Judge Ferren. Opinion by Judge McLeese. Thomas D. Engle and Sharon L. Burka for appellant. Trial Judge Todd E. Edelman.

Facts: Mr. Offutt was shot by a neighbor outside of his apartment following an altercation on August 12, 2013. Evidence showed that during the altercation, Offutt retrieved the gun from his apartment but was disarmed and shot with it. A witness flagged down two officers and reported the incident. When police arrived, Offutt reported that he had been shot. The officers called an ambulance that took Offutt to the hospital (but not before he punched his neighbor in the face, saying “that’s the [expletive] who shot me”).

At the hospital, a detective told Offutt that police were getting a warrant to search his apartment. Later, Offutt went to the police station and complained about being barred from his apartment. A detective told him he would not be allowed in until a search warrant could be executed.

Police executed their warrant on the afternoon of August 13. They discovered that a large glass door leading to the balcony had been shattered and a screwdriver lay next to an access panel on a wall in the back bedroom. There were also signs (debris and marks) that something had been dragged across the floor.  Offutt’s upstairs neighbor (not involved in the shooting) testified that late on the night of August 12, he heard glass shatter, went out on his balcony, looked down, and saw Offutt. He saw Offutt again later that morning.

Offutt testified that his neighbor pulled the gun during their altercation. Offutt also testified that he weighed over 300 pounds and had injured his neck and back just before August 12, and that he had a plate in his arm that prevented him from doing a pull-up or scaling his balcony. Offutt did not tell the physicians treating his gunshot wound about this injury. A jury found Offutt guilty of simple assault and tampering with evidence but acquitted him of numerous weapon offenses.

Issue 1: Whether the evidence was sufficient to support Mr. Offutt’s conviction for tampering with evidence, given the lack of evidence as to what he tampered with.

Holding 1: Yes. A person is guilty of tampering if, knowing or having reason to believe an official proceeding has begun or knowing that one will likely be instituted, that person conceals or removes an object with the intent to impair its availability for use in the proceeding. The jury could have reasonably found that Offutt broke into his apartment and removed something. It could have also inferred that Offutt acted with intent to prevent police from finding something that could be used in the investigation and prosecution of the shooting. Offutt was shot outside of his apartment and knew he was not allowed in until after police searched; still, he broke in to remove something in the middle of the night. Although Offutt could have wanted to take something unrelated to the incident, there is no indication that he did, given the risk required to get in. Evidence need not rule out every possible inference of innocence to be sufficient.

Issue 2: Whether the trial court reversibly erred by allowing the prosecution to cross-examine Mr. Offutt about his attorney’s failure to introduce medical records related to his physical therapy.

Holding 2: No. Assuming error, it was harmless under Kotteakos. The government permissibly cross-examined Offutt on his failure to inform the physicians who treated him for his gunshot wound of his alleged accident, injury, or physical therapy. The government was allowed to draw attention to the absence of records corroborating the injury.

Of Note: 
The rule announced here—that in order to prove tampering, the government need not “necessarily” prove what evidence was concealed or removed—is best understood in light of the unusual facts of this case. Offutt was arguing that the government had failed to rule out the possibility that he broke into his apartment to conceal or remove something illegal but unrelated to this case. In making its ruling, the Court relied on the absence of any suggestion that Offutt possessed an unrelated object that was incriminating enough to prompt the “extraordinary” steps taken.

WC

Read the full opinion here.