Apartment dweller’s sworn statement that government witness could not have seen murder from dweller’s apartment window requires evidentiary hearing in IAC case, despite lack of further detail

Bethea v. United States (decided Sept. 28, 2017)

Players: Associate Judges Glickman, Thompson, and Easterly. Opinion by Judge Easterly. Dissenting Opinion by Judge Thompson. Richard S. Stolker for the appellant. Trial Judge Craig Iscoe.

Facts: In February 2002, a jury convicted appellant of several counts related to a September 21, 1998 murder. The government’s case relied on a single, drug-addicted eyewitness, who testified (after being arrested on a material witness warrant) that while looking out of a certain Mr. Norwood’s apartment window, she saw appellant fire a gun into the driver’s side window of a car.

After appellant’s conviction, but before sentencing, the trial court appointed new counsel, and appellant filed a § 23-110 motion, alleging, inter alia, that trial counsel was ineffective for failing to call Norwood as a witness. Norwood’s affidavit attested that he had been away from his apartment between 7 am and 7 pm on the day of the murder and that there was “no way physically possible for [the eyewitness] to have been in [his] residence during the hours specified.” The trial court denied appellant’s motion as unripe because sentencing had not occurred. Counsel did not attempt to resurrect the motion after sentencing, and a different attorney was appointed for appeal.

In 2009, while appeal was still pending, appellate counsel successfully moved Judge Iscoe, to whom the case had been transferred, to “adopt” the previously dismissed § 23-110 motion and to stay the proceedings “pending further investigation and the possible filing of a supplement to the ineffective assistance motion.” Appellate counsel filed no motion to supplement or lift the stay, before Judge Iscoe reinstated appellant’s original post-trial attorney.

In August 2015, appellant’s original post-trial attorney filed a second § 23-110 motion, again alleging trial counsel’s ineffectiveness in failing to call Norwood as a witness.  Judge Iscoe denied this motion without a hearing, finding, based on Norwood’s affidavit, that Norwood’s testimony would be too lacking in detail about Norwood’s basis of knowledge to warrant relief.

Issue: Did the reviewing court abuse its discretion by denying appellant’s IAC claim without a hearing, based on the finding that Norwood’s proposed testimony was too lacking in detail to warrant relief?

Holding: Yes. Appellant was entitled to an evidentiary hearing, unless there was “no circumstance under which [he] could establish facts that warrant relief.” Although this exception is triggered by claims that, “even if true, do not entitle the movant to relief,” that conclusion is not warranted here.

Norwood’s affidavit was not devoid of detail. Assuming it covered the time period when the murder occurred, his statement that it was impossible for the eyewitness to have been in his apartment fairly implied that he left his apartment and locked the door and that the witness had no way of getting in, as far as he knew.

Moreover, the reviewing court failed to consider that Norwood could have expanded on the affidavit at a hearing. By assessing appellant’s underlying IAC claim in light of mere assumptions about Norwood’s testimony, the reviewing court conflated the procedural question of whether there was some reason to deny a hearing with the distinct merits question of whether the claim warranted relief (after any questions of fact were properly resolved).

Under the appropriate standard, appellant was entitled to a hearing because the record does not show his inability to “establish facts warranting relief.” Rather, Norwood’s affidavit “alleged specific facts that indicate that counsel provided ineffective assistance by failing to call a witness who could have testified that the government’s sole eyewitness to the murder could not have seen what she said she saw.”

Judge Thompson dissents.

Of Note: 

• In a footnote, the Court clarified that while a § 23-110 motion may also be denied without a hearing when it raises claims that “are vague and conclusory,” the trial court neither relied upon that ground to deny appellant’s motion, nor could have relied upon it, given that the motion “clearly state[d] the basis of his claim—[IAC]—and the manner in which [appellant] believes trial counsel provided that ineffective assistance.”

• Although appellant’s attorneys failed to supplement his IAC claim after his appellate attorney sought leave to do so, the Court was unwilling to infer that they thought doing so was necessary to obtain a hearing or that they had been, or would be, unable to do so. WC

Read the full opinion here.

DCCA to the government: Don’t blame the defense when you fail to preserve material evidence

Smith v. United States (decided September 21, 2017).

Players: Associate Judge Easterly, Senior Judges Washington and Ferren.  Opinion and concurrence by Judge Ferren.  William C. Claiborne, III for Mr. Smith.  Trial judge: Neal E. Kravitz.

Facts: Mr. Smith was arrested when his girlfriend, Iesha Miller, called police to her apartment.  When the police arrived, Mr. Smith was wearing boxer shorts and no pants.  The arresting officer asked whether Mr. Smith had clothes he could put on.  Ms. Miller responded that there was some clothing in the bedroom.  The police officer retrieved a pair of white shorts, and Ms. Miller confirmed they were what she had in mind.  When the police officer told Mr. Smith to put the shorts on, he declined to do so, saying they were not his.  The police officer then searched the shorts and found a bag of white pills in the pocket.  Mr. Smith was directed to put the shorts on and was photographed wearing them.  The shorts were not preserved and at trial, the photograph of Mr. Smith was admitted over the defense’s objection.  One of the white pills was tested and found to be a controlled substance commonly known as Bath Salts.  

Issue #1: Whether the trial court erred in determining that the government committed only “ordinary negligence” in failing to preserve the shorts, when the arresting officer violated an MPD general order requiring police officers to preserve potentially discoverable material that comes into their possession, and evidentiary value of the shorts was clear from the government’s Gerstein proffer.  

Holding: Yes.  Contrary to the trial court’s finding, the government committed gross negligence by failing to preserve the shorts.  Given the obvious evidentiary significance of the shorts, the prosecutor had an independent responsibility to preserve them.  The trial court erroneously factored only the police officer’s negligence into its culpability analysis.  See Koonce v. District of Columbia, 111 A.3d 1009, 1013 (D.C. 2015) (listing “the degree of government negligence or bad faith involved” as the first of three criteria for evaluating trial court sanction decisions under Rule 16).  

Issue #2: Whether the trial court erred in determining that the defendant shared responsibility for preserving the shorts.

Holding: Yes.  “[W]e are unwilling to say that the government’s failure to preserve the shorts in its custody can be mitigated  by an opportunity the defense may have had to prevent their disappearance.”  Slip op at 16.  

Of note:

• Counsel for Mr. Smith made no request for the government to preserve the shorts, and the Department of Corrections provided Mr. Smith with notice that its policy is to destroy all property taken from inmates if it is not picked up within 15 days.  However, the Court found that Mr. Smith’s failure to take some steps to preserve the shorts had no bearing on whether the government was negligent, for purposes of the first element of the Koonce analysis.  NG

Read full opinion here.

Reversible error to remove a prospective juror based on the belief that the criminal justice system is biased against black men

Mason v. United States, No. 15-CF-305 (decided September 28, 2017)

Players: Associate Judges Glickman and McLeese, Senior Judge Ruiz. Opinion by Judge McLeese. Matthew Kaplan for the appellant. Trial Judge William M. Jackson.

Facts: At around 2:45 a.m. on October 3, 2013, several men, including appellant, forced their way into a home at gunpoint, removed several items, and drove away in the residents’ cars. After depositing some items at an abandoned house, the men drove the stolen cars to a different location and set them on fire. Police eventually tracked the men to the abandoned house and arrested them. Following a jury trial, appellant was convicted for tampering with evidence, destruction of property, obstruction of justice, and unlawful entry.

During jury selection, the trial court asked potential jurors if they, their immediate family, or close friends had been arrested for, charged with, or convicted of a crime within the past ten years. Juror 7575-B answered in the affirmative, and, during follow-up questioning, explained that her half-brother had been arrested and jailed for assault in Texas. Juror 7575-B stated that her family suspected that racial profiling had been involved and that her brother had been treated unfairly as “a black man in Texas.” Juror 7575-B nevertheless stated that she could be impartial. Asked whether she thought “black men in DC are treated . . . unfairly by the criminal justice system,” Juror 7575-B stated that she thought they were and that “things [were] tilted in the wrong direction.” The trial court removed the juror for cause on the government’s motion based on her view that black men were “systemic[ally]” treated unfairly -- “here in DC, not just in Texas.”

Issue 1: Did the trial court reversibly err in striking Juror 7575-B for cause, based on her belief that African American men were treated unfairly by the criminal justice system in Washington, D.C.?

Holding 1: Yes. Belief that the criminal justice system is systemically unfair to black men is not, without more, a basis to disqualify a juror. This belief is neither uncommon nor irrational based on available polling data, Batson cases involving jurors who express such views, and official bodies that have expressed concern about the fairness of the criminal justice system. There is no basis to infer that a juror holding such a belief is necessarily unable to remain impartial, and courts have found error to disqualify a potential juror based on a belief, absent a determination that it would interfere with the juror’s ability to remain impartial. Here, the trial court made no such determination. Rather, it treated the belief alone as disqualifying, despite Juror 7575-B’s indication that she could serve impartially.

The trial court’s ruling cannot be affirmed based on the assertedly equivocal nature of Juror 7575-B’s statement that she “th[ought] [she] could be impartial.” The government did not argue that the juror was equivocal below, and the trial court did not rely on equivocation to disqualify the juror. On the other hand, both the trial court and government accepted that other jurors could remain impartial, even when they only said they “thought” they could do so.

Appellant does not have the burden to show that erroneous disqualification of Juror 7575-B was prejudicial because it was based on a (1) common, rational viewpoint in a (2) legitimate public debate that (3) made the juror appropriately more desirable to the defense, (4) might have affected the juror’s performance positively, and (5) was more likely to be held by prospective black jurors. The Court need not consider whether the error was structural because reversal would be required even assuming harmless error review applied, given the government’s failure to attempt to show harmlessness.

Issue 2: Was the evidence of evidence tampering sufficient where (a) the “proceeding” that appellant was accused of tampered with was a police investigation and (b) appellant had no reason to believe that he would be a suspect when he burned the car?

Holding 2: Yes. (a) By its plain meaning, “official proceeding” includes investigations by D.C. government agencies, of which MPD is one. This interpretation does not yield an absurd result, as the legislature could rationally intend to punish tampering with evidence where an MPD investigation is reasonably imminent. Wynn v. United States, 48 A.3d 181 (D.C. 2012) does not suggest otherwise, as it concerned distinct language in the obstruction-of-justice statute. (b) A jury could reasonably infer that when appellant and the others burned the stolen cars, he knew that MPD’s investigation into the home invasion and robbery had been, or was likely to be, instituted due to the serious nature of the underlying crimes. Appellant need not have had reason to believe he would be the focus of that investigation.

Of Note:
The Court’s reversible/harmless error analysis on Issue 1—the erroneous disqualification of Juror 7575-B—is noteworthy because, as the Court notes, prior cases diverge on whether the defendant must show prejudice in order to obtain reversal for an error in jury selection. Here, the Court extends the logic of Hinton v. United States, 979 A.2d 663 (D.C. 2009) (en banc) (reversing disqualification of a juror based on pro-defense views), and looks to Supreme Court capital cases regarding disqualification based on views on the death penalty to hold that appellant need not show prejudice. The Court has reserved the question of whether, as in the death penalty context, exclusion of a juror based upon his or her views about the fairness of the criminal justice system constitutes structural error, not subject to harmless error review. See Gray v. Mississippi, 481 U.S. 648 (1986). WC

Read the full opinion here.

Attention traffic court lawyers: The DCCA offers a primer on the notice requirements for suspending a license

Osborne v. District of Columbia (decided September 21, 2017).

Players: Associate Judges Fisher and Thompson, Senior Judge Steadman.  Nigel A. Barrella for Mr. Osborne.  Trial judge: Magistrate Judge Frederick Sullivan.  Reviewing judge: Associate Judge John Ramsey Johnson.

Facts: Mr. Osborne was convicted of driving while intoxicated in Virginia.  When he was subsequently stopped by a police officer in the District for a traffic violation, a records check revealed that Mr. Osborne's license had been revoked.  At his bench trial for "operating after suspension,” Mr. Osborne argued that he had not received notice that his license had been revoked in the District and therefore could not be held criminally liable for this offense.

Issue #1: Whether the District is required to send notice when a driver’s license is revoked.

Holding: Yes.  Even when the revocation is mandatory, such as when the driver has been convicted of driving under the influence in another state (as was the case here), the driver is entitled to written notice.

Issue #2: Whether a hearing is required before revocation of a driving license.

Holding: No.  District regulations specify that no hearing is required when revocation is mandatory.  In addition, the District is entitled to “adopt for purposes of its own compliance with due process, the judgment of a court from another state, rather than hold a new hearing.”  Slip op. at 21-22 (quoting Wall v. Babers, 82 A.3d 802 (D.C. 2014)) (ellipses omitted).  

Issue #3: What proof is required that the District provided the driver with sufficient notice of the revocation?

Holding: When the defendant claims she did not receive notice of revocation, and the evidence at trial “fairly raises the issue,” the District bears the burden of proving beyond a reasonable doubt that sufficient notice was given.

Of note:

• The decision includes a thorough explanation of the District’s process for revoking a license based on a driver’s out-of-state conviction.  Slip op. at 13-17.

• Here, Mr. Osborne “fairly raised the issue” of whether he received notice by testifying that (1) he did not know about the revocation until he was arrested;  (2) when he called the D.C. DMV in May 2013, an employee told him there was nothing wrong with his license; (3) a police officer pulled him over in June 2013 and told him there was “nothing wrong” with his license; and (4) he received nothing in the mail about his license being revoked.  Mr. Osborne’s mother also testified that she called the DMV repeatedly on Mr. Osborne’s behalf and was told that there was no problem with the license.  NG

Read full opinion here.

Newsflash! MPD’s warrantless use of a cell-site simulator constitutes an unlawful search

Jones v. United States (decided September 21, 2017).

Players: Associate Judges Thompson and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Partial concurrence/dissent by Judge Farrell.  Dissent by Judge Thompson.  PDS for Mr. Jones.  ACLU and Electronic Frontier Foundation as amicus.  Trial judge: Jennifer M. Anderson.

Facts: Evidence at the suppression hearing established that in October of 2013, officers of the Metropolitan Police Department were investigating two reports of sexual assault.  The complainants in both cases reported that the perpetrator had contacted them by phone to arrange to pay for sexual services in response to advertisements the complainants had posted.  At the arranged meetings, the perpetrator sexually assaulted the women at knifepoint and stole their cell phones.  MPD investigation revealed that each complainant had received a call from the same number during the relevant time periods.  

Police then obtained information about the location of the suspect’s and complainants’ phones from the relevant cell phone companies.  The data they received indicated that one complainant’s phone and the suspect’s phone appeared to be together in the vicinity of the Minnesota Avenue Metro station.  MPD officers took a cell-site simulator to the area and used the device to track the Mr. Jones’s phone.  The signal led them to a parked car.  Inside the car were Mr. Jones and his girlfriend, Nora Williams.  The police arrested Mr. Jones and recovered evidence from his person and his car, and from Ms. Williams.  

Cell-site simulators work as follows: The police first obtain subscriber information and real-time location information from a target’s cell phone service provider to narrow down a search area.  Then police proceed to that area with a cell-site simulator.  When the simulator detects the target phone, it “grabs” the target phone.  The simulator then begins reporting location and signal strength information that can be used to locate the target phone.  Because cell phones are “dumb devices,” as the defense expert put it, and are unable to differentiate between a legitimate cell tower and a cell-site simulator, the simulator induces the phone to divulge its indentifying information.  Slip. op at 16-17.  (The “StingRay” is a popular cell-site simulator produced by the Harris Corporation.  The record in this case does not include the name of the device used against Mr. Jones.  Slip op. at 2 n.2.)  

The trial court denied the suppression motion, ruling that the inevitable-discovery doctrine rendered the exclusionary rule inapplicable.  This appeal follows Mr. Jones’s conviction at trial.

Issue: Whether the government’s use of a cell-site simulator to locate Mr. Jones’s cell phone constituted a search for purposes of the Fourth Amendment.  

Holding: Yes.  The Court distinguished this case from Supreme Court precedent in which location data transmitted by trackers was found not to constitute a search.  See, e.g., United States v. Jones, 565 U.S. 400, 402-03 (2012) (GPS tracker placed on the defendant’s wife’s car); United States v. Karo, 468 U.S. 705, 708 (1984) (tracker placed in container of chemicals the defendants purchased).  Unlike a tracking device, the Court reasoned, a cell-site simulator enables police to locate a person whose whereabouts were previously “completely unknown.”  Slip op. at 15.  “A cell-site simulator allows police officer’s who possess a person’s telephone number to discover that person’s precise location remotely and at will.”  Id. at 17.  Furthermore, unlike a person’s location that can be observed through visual surveillance, the information obtained by a cell-site simulator is not “readily available and in the public view,” Slip op. at 19 (quoting Andrews, 134 A.3d at 348).  Therefore, “under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cell phone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.”  Slip op at 20-21.  As the government’s use of the cell-site simulator to locate Mr. Jones was a search for which the police did not obtain a warrant, their conduct violated the Fourth Amendment.  

Of Note:

The question of whether the government is required to obtain a warrant before using a cell-site simulator to locate a cell phone was an issue of first impression not only here in the District, but virtually everywhere in the country.

The Court considered and rejected the government’s arguments that a warrant was not required:

• Exigent circumstances: The trial court rejected the government’s argument that exigent circumstances justified noncompliance with any otherwise applicable warrant requirement, given the ten hours that elapsed between the sexual assault and Mr. Jones’s arrest.  Slip op. at 11. 

• Inevitable-discovery doctrine: This exception to the exclusionary rule applies if the government can show that the evidence would have been discovered by lawful means.  The lawful process by which the evidence would have been discovered must have commenced before the constitutionally invalid seizure of evidence.  Here, it was undisputed that MPD had only one functioning cell-site simulator, that it could locate only a single phone at a time, and that police were using it to search for Mr. Jones’s cell phone.  Since the lawful search of the complainant’s phone never occurred, it could not have commenced before the illegal search.  Therefore, the inevitable-discovery doctrine did not apply.  Slip op. at 26-30.

• Good-faith exception: Evidence obtained when the police act with an objectively reasonable good-faith belief that their conduct is legal is not subject to the exclusionary rule.  The Court reasoned that it was not reasonable for police to believe that their warrantless use of the cell-site simulator was lawful, given the secrecy surrounding the device and the lack of law on the issue.  Slip op. at 31-34. 

• Change in DOJ policy:  The government argued that a change in Department of Justice policy has made it unlikely that exclusion in this case would deter future police misconduct.  In September of 2015, the DOJ issued guidance requiring law enforcement to obtain a search warrant supported by probable cause before using a cell-site simulator.  According to the government, MPD is bound by this policy.  The Court was not persuaded by this argument, reasoning that there is no precedent for not applying the exclusionary rule based on the government’s representation that it will avoid in future unlawful conduct.  The Court also noted that there is no enforcement mechanism described in the DOJ policy to ensure compliance, and that the policy could be changed by the present administration or a future one. 

The Court determined whether the following evidence should be excluded as “fruits of the poisonous tree:” 

• Mr. Jones’s statement: At the scene of his arrest, police asked Mr. Jones for his address.  He gave the address of one of the sexual-assault complainants.  The government argued that this statement was obtained merely as part of a routine booking procedure, so the rationale for using exclusion to deter police misconduct did not apply.  The Court rejected this argument, reasoning that “very little time and no substantial intervening circumstances” separated the illegal search from Mr. Jones’s statement.  Slip op. at 37-38. 

• Cell phones in Ms. Williams’s handbag: When the police searched Ms. Williams’s handbag, they found two of the complainants’ phones and Mr. Jones’s phone.  The government argued that Mr. Jones had no standing to contest the search of Ms. Williams’s bag, and that Ms. Williams consented to the search.  Applying the factors described in Brown v. Illinois, 422 U.S. 590, 603-4 (1975), the Court determined that the contents of Ms. Williams’s purse constituted tainted fruits: (1) Little time passed between the unlawful search and recovery of the evidence; (2) Ms. Williams’s consent was not a significant intervening circumstance (given that she was faced with the options of consenting to the search or surrendering the purse to the police while they obtained a warrant); and (3) the recovered phones were closely related to the underlying illegality, since the police were using the cell-site simulator to locate the phones.  Slip op. at 39-41.

• Ms. Williams’s testimony: Judge Beckwith applied the four factors articulated in United States v. Ceccolini, 435 U.S. 268 (1978) to determine whether Ms. Williams’s testimony against Mr. Jones at trial was tainted by the illegal search.  Judge Beckwith noted that (1) Ms. Williams was not a willing witness and testified only pursuant to a court order granting her immunity from prosecution; (2) in questioning Ms. Williams, police confronted her with the unlawfully seized cell phones; (3) little time passed between the illegal search and Ms. Williams’s first contact with the police; and (4) the evidence at the suppression hearing did not establish that police would have learned of Ms. Williams without the illegal search.  While the fifth Ceccolini factor – whether the police intended their illegal search to find a witness to testify against the defendant – favored the government, Judge Beckwith found that it was outweighed by the other four factors, and that the testimony therefore constituted a fruit of the unlawful search.  Slip op. at 41-45.  However, as Judge Farrell did not join this portion of the opinion and Judge Thompson dissented, this ruling was not the opinion of the Court.  NG

Read full opinion here.