A question about the Youth Rehabilitation Act produces four opinions, but no firm answers.

Briscoe v. United States (decided March 29, 2018)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ruiz. Opinion by Judge Thompson. Concurring Opinion by Judge McLeese. Separate Statement by Judge Thompson. Dissent by Judge Ruiz. Donna L. Biderman for Mr. Briscoe. Trial Judge: Milton C. Lee

Facts: Briscoe was convicted of robbery while armed, assault with a  dangerous weapon, and possession of a firearm during a crime of violence (PFCV). Because of Briscoe's young age, his attorney asked for a "lenient" sentence under the Youth Rehabilitation Act (YRA). The trial judge imposed a five-year sentence, the mandatory minimum under both the statute for a robbery (or other crime of violence) while armed (D.C. Code § 22-4502(a)) and the PFCV statute (D.C. Code § 22-4504(b)). The judge stated that five years might be "a little too harsh," but imposed that sentence anyway.

Issue: Did the trial court have discretion under the YRA to impose a sentence below the mandatory minimums ordinarily required by the while-armed and PFCV statutes?

Holding: No plain error. The Court reviewed this claim only for plain error because, although defense counsel asked the trial court to make expungement possible under the YRA, "he never argued that the court had discretion not to impose the mandatory-minimum sentences." The attorney's request for a "lenient" sentence did not apprise the court that he was asking for a  below-minimum sentence.

The majority rejected the argument that it was bound by Green v. United States, 974 A.2d 248 (D.C. 2009). In Green the government had conceded that the mandatory minimums in the while-armed and PFCV statutes do not apply in YRA-eligible case. The Court accepted the concession in Green, but, according to the majority, had not decided the issue. Therefore, Green was not binding precedent on that issue.

Analyzing the issue "afresh," the majority held that it was not plain error to apply the mandatory minimum provisions of the "while armed" and PFCV statutes. The YRA authorizes a suspended sentence or a sentence of "treatment and supervision" in place of imprisonment. D.C. Code § 24-903. Both the while-armed and PFCV statutes impose five-year minimums and prohibit (in gun cases) suspension of sentence before the five-year minimum has been served. Thus, the question is whether the YRA trumps the while-armed and PFCV statutes, or vice versa.

For the while-armed statute, the court recognized that Briscoe "possibly has ... the better of the argument." The court noted that § 22-4502(e)(1) expressly forbids a YRA sentence after a person's first while-armed offense — implying that a YRA sentence could be imposed for the first while-armed offense.

For PFCV, however, the Court found nothing in the statute or legislative history to suggest that the statute permits below-minimum sentences under the YRA.  The Court therefore could not find any error that was plain in the PFCV sentence.  For that reason, any assumed error in the armed robbery sentence could not affect Briscoe's "substantial rights" because the sentences were concurrent.

Of Note

• Although the majority opinion suggests that the YRA does not authorize a below-minimum sentence in a PFCV case, it does not so hold. It merely holds that any error was not obvious enough to qualify as plain error. Defense attorneys may continue to argue for below-minimum sentences in these cases.  Support for those arguments can be found in both the majority and dissenting opinions.

• Judge McLeese's concurrence emphasized why, in the majority's view, the Court was not bound by Green.

• Judge Thompson wrote a separate statement, responding to a point in the dissent, explaining why she did not think that the appellant in this case and in Green were "similarly situated."

• Judge Ruiz dissented, concluding that the trial court plainly erred in thinking it was bound by the mandatory minimums. Judge Ruiz reasoned that the Court was bound by Green because the opinion did not say it was merely accepting the government's concession or assuming the issue without deciding it. She also analyzed the statutes to conclude that the YRA trumps the mandatory minimums in the while-armed and PFCV statutes.

• The Court summarily rejected a claim that sanctions should have been imposed for the government's failure to preserve surveillance video of the robbery. Although an investigator testified that he saw a camera in the alley where the robbery occurred, he was never able to get the footage from the property owner.  Because the footage was never in the government's possession, it had no duty under Brady or Rule 16 to turn it over to the defense. DG

Read the full opinion here.

Time’s Up on Those Contempt Charges!

Brookens v. United States (decided April 5, 2018)

Players: Associate Judges Thompson and Easterly, and Senior Judge Ferren. Opinion by Judge Easterly. Johnny Barnes for Mr. Brookens. Trial Judge: José M. López

Facts: In 1986, appellant was charged and convicted of several counts of contempt based on his unauthorized practice of law in violation of then-existing Rule 49. At the time same that it convicted appellant of some of the charges brought against him, the Court acquitted appellant of those counts which alleged he had engaged in the unauthorized practice of law by representing others before a District agency. The Court read then-existing Rule 49 to prohibit only the unauthorized representation of others before courts, not agencies. The Court then issued an injunction prohibited appellant from (1) representing others before any court in the District, (2) holding himself out as a lawyer in the District, (3) engaging in the practice of law in the District, and (4) engaging in any other unauthorized practice of law prohibited by Rule 49.

In 1998, Rule 49 was revised to include a prohibition on the unauthorized practice of law before any District agency.

In 2011, appellant was charged with being in contempt of the 1986 injunction, stemming from his representation of others (namely, a tenant association to which he belonged) before District Agencies. Of the four charges that proceeded to trial, two charged conduct occurring in 2005. Two remaining charges alleged he had violated the 1986 injunction by violating Rule 49 and by representing others before a District agency—on at least one occasion between January 1996 and June 2008. The trial court found appellant guilty of all four counts. The Court of Appeals reversed.

Issue 1: Does D.C. Code §23-113(a)(5), which sets forth a three-year catchall statute of limitations for misdemeanor offenses apply to charges of criminal contempt?

Answer: Yes. The Court holds explicitly for the first time that criminal contempt is a crime just like any other and therefore criminal contempt charges prosecuted in Superior Court are crimes subject to the jurisdictional limitations for the District’s statute of limitations.

Furthermore, each individual contemptuous act is its own offense, and the government may not circumvent the statute of limitations by charging contempt as an on-going crime covering an extension period of time, as was done in this case. The statute of limitations begins to run from the time of the specific contemptuous conduct.

Issue 2: Was there sufficient evidence to support appellant’s convictions for conduct that was not time-barred by the statute of limitations where the 1986 injunction did not bar him from representing others in front of agencies (as opposed to courts).

Answer: No. At the time the Court issued the 1986 injunction, it explicitly held that the then-existing Rule 49 did not cover conduct before government agencies, and therefore acquitted appellant of all conduct occurring before such agencies, as opposed to in Superior Court. The Court holds now that—unless expressly worded to incorporate future changes in an existing law—an injunction must be read to reflect the law as it existed at the time of the injunction. Thus, that Rule 49 has since been amended to include a prohibition on the unauthorized proactive of law before agencies as well as courts, does not render appellant’s actions contemptuous of the 1986 injunction. CP

Read the full opinion here.

Dissent offers guidance on standard for entitlement to evidentiary hearing on IAC claim

Brown v. United States (decided March 29, 2018).

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Nebeker.  Opinion for the court by Judge Nebeker.  Dissent by Judge Glickman.  Cecily E. Baskir for Appellant.  Trial judge: Ann O’Regan Keary.

Facts: The story of this appeal began in 1997, when Appellant was convicted of first-degree murder.  Fast forward to 2008.  That year, while serving his sentence at a federal penitentiary in California, Appellant attempted to stab a correctional officer.  Appellant’s federal public defender had him evaluated by a psychiatrist, who testified at his 2010 trial.  In the opinion of the psychiatrist, Appellant suffers from PTSD stemming from a 1991 shooting.  As a result of this condition, according to the psychiatrist, Appellant was unable to appreciate the wrongfulness of his actions at the time of the assault. After a mistrial, the 2008 charge was eventually dismissed.  Appellant then sought to attack his 1997 conviction, arguing that his trial counsel was ineffective for failing to investigate Appellant’s mental condition.  Appellant noted that he had told his lawyer about the 1991 incident that was the cause of his PTSD.  Appellant also pointed out that he had no history of violence before the 1991 incident and no motive to shoot the decedent in the 1997 incident.  The trial court denied Appellant’s ineffective-assistance-of -counsel motion without a hearing, reasoning that Appellant had failed to present any evidence to explain why he had failed to raise this claim during his direct appeal.  

Issue: Were trial counsel in the 1990s ineffective for failing to investigate a possible insanity defense, and was appellate counsel ineffective for failing to raise this issue in the direct appeal?   Holding:  No.  There were no observable symptoms or statements from Appellant that could reasonably have called attention to the possibility of an insanity defense at the time of Appellant’s trial.  Appellant therefore failed (1) to show that his trial counsel was ineffective for failing to investigate Appellant’s mental condition and (2) to show cause for the delay in bringing this claim.

Of Note: The DCCA focuses on whether Appellant established that his trial counsel was ineffective and whether the ineffectiveness was the cause of Appellant’s failure to raise this claim in a timely manner.  The basis for the Court’s reasoning is specific to the unique facts of this case.  Judge Glickman’s dissent, however, could be more broadly applicable.  Judge Glickman focuses on the narrower (and arguably more germane) question of whether Appellant was entitled to an evidentiary hearing and appointment of counsel on his claim.   

• As Judge Glickman notes, there is a “strong statutory presumption in favor of holding a hearing.”  All that Appellant was required to do was proffer sufficient facts to show that, with an attorney’s help, he may be able to overcome the procedural bar and demonstrate that his trial counsel was ineffective.   
• The extent of the trial court’s discretion on whether to hold an evidentiary hearing on a § 23-110 claim is “quite narrow.” Slip op. at 15 (quoting Bellinger v. United States, 127 A.3d 505, 514-15 (D.C. 2015)).  The court “shall” grant a hearing “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”  Id. (quoting D.C. Code § 23-110(c) (emphasis added by J. Glickman).   
• The Court has “declared repeatedly that ‘any question regarding the appropriateness of a hearing on a § 23-110(c) motion should be resolved in favor of holding a hearing[.].’” Slip op. at 15-16 (quoting Newman v. United States, 705 A.2d 246, 261 (D.C. 1997)).   
• In addition, “in reviewing a summary denial, we must be satisfied that under no circumstances could the petitioner establish facts warranting relief.”  Slip op. at 16 (quoting Bellinger, 127 A.3d at 515).  
•  In Judge Glickman’s view, Appellant’s proffer was sufficient to require an evidentiary hearing and appointment of counsel.  Appellant claimed that a mental health examination would have revealed that he suffered from mental illness and could have mounted a meritorious insanity defense, and that the basis for this claim (the expert opinion from his 2010 federal trial) was not available until long after the conclusion of his direct appeal.  On the present record, there was not sufficient evidence to determine that Appellant knew or should have known that he had a mental disorder before his 2008 evaluation.  In Judge Glickman’s view, it was therefore premature of the trial court to deny this pro se motion without an evidentiary hearing.  NG

Read the full opinion here.

D.C. Council: The presumption is in favor of release of juveniles. DCCA: No, seriously, it is.

In re K.G. (decided February 15, 2018)

Players: Associate Judges Beckwith and Easterly, Senior Judge Ruiz. Opinion by Judge Easterly.  PDS for K.G. Trial Judge: Jennifer M. Anderson.

Facts:  K.G., a child, plead involvement to a count of possession of cocaine, and returned to his grandmother's custody pending disposition.  K.G. was later arrested for new drug offenses that were allegedly committed after he turned 18, and thus were charged in adult court.  Although K.G. had been released in his adult case five weeks earlier, the Office of the Attorney General asked him to be placed in secured detention.  The court granted this request, finding that K.G. was a "significant danger to others."  First, the court noted that distribution of cocaine is defined as a "dangerous crime" under the adult detentions statute.  The court also relied on "technical violations" of K.G.'s supervision, such as curfew violations, failure to enroll in drug treatment, and failure to complete computer training.

K.G. filed an interlocutory appeal pursuant to D.C. Code § 16-2328(a).

Issue: Was detention of K.G. authorized by the juvenile detention statute?

Holding:  No. The DCCA provided guidance on amendments to the juvenile detention statute, D.C. Code § 16-2310, that went into effect in April 2017.  Section 16-2310 now further restricts a judge’s authority to order detention.  Under the amended statute, a child can only be detained if that child represents a “significant harm” to the person or property of others, or is a flight risk. Until this case, there was no answer to the question about what exactly “significant harm” means.

The DCCA explained that a child can be detained only if “their particular behavior could cause direct, significant harm to the person or property of a particular individual (or individuals).”  Further, a “generalized harm to the District community at large” is insufficient for detention.  This language brings many changes to the way children were previously detained in juvenile court.

First, technical violations such as not attending school or class, positive drug tests, failing to enroll in drug treatment, or curfew violations are the types of behaviors that are insufficient for detention under § 16-2310, and therefore they are not to be considered in a detention analysis. Second, the standard means that the presumption against detention is much stronger and has teeth. Third, in cases that do not involve a firearm, the court must look to “case specific information” to make the significant harm finding.  Fourth, although the DCCA does not prescribe a particular formula for what behavior would amount to a significant harm, we know that at least a kid on release pending disposition after pleading guilty to possession of cocaine, who was rearrested on adult distribution of cocaine charges, and had technical violations (school, curfew, and drug testing) is not a significant harm to the person or property of others.

Of Note:

• Any attorney practicing in juvenile court needs to read K.G. in full to understand its impact on juvenile detention.

• A quick word on procedure regarding D.C. Code § 16-2328: The DCCA made it clear that a detained child, whose case is pre-trial or pre-disposition, is entitled to an emergency interlocutory appeal under § 16-2328. However, § 16-2328 only applies to the original order detaining the child order by a family court judge and not to later orders denying motions for reconsideration of detention. Because § 16-2328(a) requires the notice of appeal to be filed within two days of the detention order, defense counsel must make a quick decision as to whether to appeal.  The filing of an appeal does not bar defense counsel from also moving to reconsider the detention ruling in the trial court.—Terrence Austin, guest blogging.

Read the full opinion here.

Case Note: APOWA is not unconstitutionally vague

Fadero v. United States (decided March 22, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson.  Opinion by Judge Fisher.  Trial judge: Ronna Lee Beck.

The main issue in this pro se § 23-110 motion was whether the phrase “grave risk of causing significant bodily injury,” incorporated in the crime of felony assault on a police officer while armed (APOWA), is unconstitutionally vague.  Appellant relied on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015).  In Johnson, the Supreme Court considered a provision in the Armed Career Criminal Act (ACCA) that includes conduct “that presents a serious potential risk of physical injury to another” in the definition of “violent felony.”  The Supreme Court found that provision to be unconstitutionally vague.  The DCCA rejected Appellant’s argument that if the “serious potential risk of physical injury” clause in the ACCA offends due process, the “grave risk” language incorporated in APOWA must as well. The problem with the ACCA was that it required judges to determine whether the “ordinary” way a crime unfolded created a serious risk of potential injury – a “highly subjective exercise.”  In contrast, determining whether a defendant committed a violent act that created a “grave risk of causing significant bodily injury” is a question of fact that involves an inquiry into the defendant’s actual conduct.  The provision does not require judges to imagine the risk posed by the “ordinary” APOWA.  NG

Read the full opinion here.

DCCA: The floor of a public restroom may be a "hidden observation post" for purposes of attempted voyeurism.

Valenzuela-Castillo v. United States (decided March 8, 2018)

Players: Associate Judges Thompson and Easterly and Senior Judge Farrell. Opinion for the Court by Judge Farrell. Dissenting Opinion by Judge Easterly. Karl R. Tetzlaff for Appellant. Trial Judge Patricia Broderick.

Facts: Following a bench trial, appellant was found guilty of attempted voyeurism. Viewed in a light most favorable to the conviction, the evidence showed that the complainant encountered appellant on the way to the women’s restroom in a restaurant sometime after midnight. Appellant was leaving the men’s restroom with a broom and dustpan. The complainant had just finished eating, and the restaurant had few other customers. Surveillance footage showed appellant looking at the complainant as she went in the women’s restroom.

The restroom was unoccupied. It contained multiple stalls separated by floor-to-ceiling partitions. The stall doors were approximately one foot off of the ground. The complainant occupied the last stall. After she had been in there for some time, she got an uneasy feeling, looked down, and saw appellant’s face under the door. She had not heard him knock or enter. Upon seeing him, she screamed and cursed and told him to leave. He got up and ran out, saying nothing. The trial court found appellant guilty of attempted voyeurism by apparent reference to statutory provision making it illegal “to occupy a hidden observation post . . . for the purpose of secretly or surreptitiously observing an individual who is . . . [u]sing a bathroom or rest room.”

Issue: Did appellant attempt to “occupy a hidden observation post” within the meaning of the voyeurism statute?

Holding: Yes. Although the statute does not define “hidden observation post,” appellant occupied such a post “by any common-sense understanding” because he “staged his behavior” to avoid detection: he “checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated not to draw attention.” Black’s Law Dictionary defines “observation post,” for military purposes, as any “position” from which a target can be watched. This broad definition is consistent with the intent expressed by the Mayor to the City Council before the statute was passed. Contrary to appellant’s argument, this definition would not include nearly all public areas because it is based on the steps appellant took, albeit ineffectively, to ensure that his vantage point was “private.” The dissent’s argument that appellant was engaged in simple invasive viewing likewise ignores these steps.

Dissent: No. The bathroom floor was not a “hidden observation post” because it allowed appellant to be seen by the complainant and anyone who came in the bathroom. The majority’s attempt to read “hidden observation post” to cover this circumstance ignores that simple invasive viewing was already prohibited by the disorderly conduct statute when the Council passed the voyeurism statute. The Council’s intent in creating a separate voyeurism offense was to punish conduct that went beyond simple invasive viewing, such as the use of surveillance devices or specialized “hidden observation posts.” Although the Council later redefined disorderly conduct to exclude simple invasive viewing, the Court cannot use voyeurism to fill the resulting gap. The majority’s interpretation of “observation post” to mean body positioning is inconsistent with the common definition of “post” as a fixed location and risks punishing innocent activity, such as looking under a stall to ensure it is unoccupied.

Of Note:
The Court has held that “conduct[] designed to enable appellant to observe the victim while himself unseen [may meet] the statutory requirement that [the defendant] occupy a hidden observation post,” or, in any case, that the requirement he attempt to do so. Whether such conduct exists in a given case is a fact-specific inquiry. WC.

Read the full opinion here.

There are innocent reasons to flee the police

Miles v. United States (decided March 29, 2018)

The Players: Associate Judges Glickman, Beckwith, and McLeese. Opinion by Judge Beckwith. Dissent by Judge McLeese. William T. Morrison for Mr. Miles.  Trial Judge: Stuart G. Nash.

Facts: An anonymous 911 caller claimed there was a black man in a blue army coat with a gun on a particular block. The police stopped appellant—a black man wearing an arguably blue camouflage jacket—a few blocks away. After seeing appellant, one officer drove his car up onto the sidewalk to prevent appellant from continuing in his direction of travel (which was inconsistent with what the tipster had provided). Appellant immediately tried to run away from the police cruiser, and was swiftly caught by the officer, who felt a hard object at appellant’s waist. Appellant was searched and found to be carrying a gun.

Issue: Did appellant’s flight when confronted by the police, coupled with the anonymous phone tip, give the police reasonable articulable suspicion (RAS) to stop appellant?

Answer: No. Even deferring to the trial court’s conclusion that the description given by the anonymous caller matched appellant, the only corroboration of the illegality alleged in the tip was appellant’s flight. Without more, there was no RAS.

First, the Court noted that the anonymous tip in this case was not enough on its own to justify the stop because, while it identified a specific person, there was nothing to corroborate its bald assertion of illegality. Thus, the police needed an on-the-scene reason to stop appellant, and here, the only indication of illegality was appellant’s flight. The Court held that his flight alone, under the circumstances of this case, was not enough to justify a stop.

The Court distinguished this case from Illinois v. Wardlow, 528 U.S. 119 (2000), in several ways. First, in Wardlow, there were additional factors other than flight that supported RAS (area known for drug trafficking, and Wardlow’s possession of an opaque bag were consistent with suspecting him of dealing drugs). Here, appellant’s flight was the ONLY indication of illegality. Second, in Wardlow, the flight was unprovoked (Wardlow ran as soon as he saw police officers in the area, before any had approached him). Here, appellant’s flight was in response to a sudden and aggressive attempt to stop him; the police pulled up onto the sidewalk to prevent his travel along the sidewalk. Flight in face of such aggressive police behavior is a reasonable response from an innocent person, particularly a black man.

Most significantly, the Court cites many sources documenting the disproportionate use of deadly force against black men, as well as the new prevalence of videos capturing the use of such force. Furthermore, the Court holds, “an investigatory stop and frisk is not a ‘petty indignity’—‘it is a serious intrusion upon the sanctity of the person’—and though we lack adequate empirical grounds for fathoming the extent to which innocent people might flee to avoid being subjected to one, it seems safe to say that the number is not insignificant.” Slip. Op. at 19. Without any additional indicia of illegality, the police did not have RAS to stop appellant. CP

Read the full opinion here.

Evidence of gun crimes in a DC neighborhood not relevant to whether a gun could be found in that neighborhood.

Grady v. United States (decided March 15, 2018).

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, Senior Judge Nebeker. Opinion by Chief Judge Blackburne-Rigsby. PDS for Mr. Grady. Trial Judge: Zoe Bush.

Facts: MPD Officer Armando De los Santos was responding to a reported domestic incident when he saw a man walking on the street he believed matched the description he had been provided, though the government admitted on appeal that the man did not match exactly. While remaining in his car, De los Santos made two or three attempts to speak to this man—later identified as Mr. Grady—and asked him if he had argued with anyone that night. Mr. Grady responded, “No, what do you want to talk to me about,” before stopping between two parked cars about ten to fifteen feet from the officer. Mr. Grady then backed up towards either a “large station wagon or small SUV.” The officer claimed that at that point he could see Mr. Grady through the car’s windows and saw him “put one of his hands inside a middle zippered pocket of his coat and ‘fumble’ with something inside for about three to five seconds” before he suddenly heard “the sound of a hard or heavy object hitting the ground where” Mr. Grady was standing. De los Santos then got out of his car and went to that spot where he saw a gun lying on the ground. A second officer placed Mr. Grady under arrest.

The morning before jury selection, the defense served a subpoena duces tecum on MPD for “All data pertaining to reports or arrests of individuals unlawfully possessing a firearm, including but not limited to arrests for carrying a pistol without a license (CPWL), possession of an unregistered firearm, unlawful possession of a firearm and/or ammunition and felon in possession of a firearm in the MPD Third District Police Service Area (PSA 304),” which is where the crime occurred, “from 10/27/00 to 10/27/2014.” The government moved to quash the subpoena arguing that it was untimely, overbroad, and sought irrelevant information. The trial court agreed, ruling that the evidence sought was inadmissible and the subpoena too broad for MPD to comply with. The following day, the defense served a second subpoena, that was not part of the trial or the appellate record. The government having not seen the contents of the subpoena still sought to quash it and the trial court decided that it was standing by its previous ruling on the subpoena.

During trial, the defense tried to elicit testimony from Officer De los Santos about the neighborhood gun-crime statistics, asking whether “during the last few years, there ha[d] . . . been a number of gun-related crimes” in the area. The government objected on relevance grounds and the defense contended the testimony was relevant as to “how a gun could possibly end up there” without it having come from Mr. Grady. The trial court ruled the evidence was not sufficiently relevant to show how a gun could have been at that location at that time. But during redirect examination, the court permitted the government to ask the officer “how frequently” in his twenty-two years of experience he had “seen guns just lying on the ground in the first place or on the street.” The officer said never. The defense then sought to recross-examine the officer about the prevalence of gun crimes in the neighborhood, but the trial court would not allow it. Later at trial, Officer Fosso, the arresting officer, testified on cross-examination that it was “commonplace” to arrive at a scene to find a gun without there being a person to arrest because the gun had just been found there but he did not personally remember a time when he had found a gun while walking on a street.

Issue 1: Did the trial court abuse its discretion when it quashed the defense’s two subpoenas duces tecum because they were overbroad?

Holding: No. The Court concluded it was not an abuse of discretion to quash the first subpoena and refuse to enforce the second for seeking the same information as the first. The Court found no error in the trial court’s reasoning that the subpoena was “confusing and likely too broad for the department to comply with,” since it potentially encompassed an extremely large number of civilian calls and unsubstantiated claims. Also, the Court stated that the defense when given the chance failed to explain how the subpoena could be narrowly tailored. The Court also said any gun-crime statistics evidence would have been cumulative to Officer Fosso’s testimony that he knew of instances where guns were found without there also being a person to arrest.

Issue 2: Was it a violation of the Confrontation Clause for the trial court to preclude the defense from cross-examining and recross-examining Officer De los Santos on his knowledge of gun-crime rates in the neighborhood where the defendant was arrested?

Holding: No. The Court agreed with the trial court that any testimony regarding gun-crime rates that the defense sought would have been irrelevant because “[n]othing in the record” suggested that someone other than the defendant had the motive or the opportunity to have dropped the gun. The Court cited De los Santos’s testimony that he saw the defendant move to conceal himself behind a vehicle, saw his hands go into his pockets, and heard a heavy object hit the ground, which is exactly where police found a gun moments later.

The Court also did not think such evidence was needed to minimize the incriminating effect of De los Santos’s testimony on redirect because introducing “isolated testimony on gun-crime statistics would [have] provide[d] the jury with an incomplete account of the actual likelihood that someone other than [the defendant] had left the gun at the spot where he was stopped and arrested.” The Court reasoned that statistics alone do not prove a systematic pattern. “If Officer De los Santos had been permitted to testify regarding the prevalence of gun-crime rates in PSA 304, the jury, without hearing statistics of other neighborhoods as a comparison could have idly speculated that another person left the gun, even if the rate was low, relative to other neighborhoods. . . . [The defense] tried to show that the rate of gun crimes is tied to the frequency with which people discards gun, but he failed to introduce any evidence to support his claim.”

Of note:

• To any extent the government tries to use evidence of frequency of gun crimes against a defendant, either at a suppression hearing, preliminary hearing, or trial, this opinion may be able to be used against them.

• If a defendant in the future wants to seek similar statistics as part of the defense, the key to negating this opinion’s impact will likely be limiting the request to some degree and having an argument to respond to the Court’s statement in the opinion that the defense did not present evidence connecting the rate of gun crimes to the frequency with which people discard guns. BM

Read the full opinion here.