Juries need to be properly instructed pursuant to Carrell to decide the difference between a true threat and a question.

Malloy v. United States (decided June 21, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ferren. Opinion by Judge Ferren. Dissent by Judge McLeese. Matthew B. Kaplan for Mr. Malloy. Trial Judge: Anita M. Josey-Herring

Facts: Anthony Johnson was inside his car making a phone call when Malloy approached him, allegedly calling him “hot” (meaning a snitch), and asked him whether he was on the phone with police. Malloy continued to call Johnson “hot” and then allegedly said, “What if I shot your car,” to which Johnson replied, “Well I guess that make you feel good.” Malloy then allegedly said, “What if I shoot you,” and Johnson said, “I guess I be dead.” Several witnesses claimed that Malloy then pulled out a black pistol and pointed it at Johnson, who left and reported the incident to a police officer.

At trial, the court admitted testimony that, a few weeks before the charged incident, Malloy yelled at Johnson, calling him “hot” and threatening that “he’d shoot [Johnson’s] car up.” The government also played a recording of a jail call in which Malloy told Johnson's son, Anthony Tate, to tell his father not to come to court “because Tate and Tate’s mother still live around there . . . You know how that shit go,” but then said, “That’s not a threat.”

The defense called two eyewitnesses who testified that it was Johnson who told Malloy to go get his gun, and that Malloy did not threaten to shoot Johnson's car.

Issue 1: Did evidence of the prior threat introduced at trial unfairly prejudice the appellant?

Holding: No. Under (William) Johnson v. U.S., 683 A.2d 1087 (D.C. 1996) (en banc), the Court found the prior threat was “necessary to place [the] incident in context” and “complete the story” of the alleged crime. Johnson alleged that Malloy had a history of accusing him of being a snitch and threatening to shoot up his car, and the government used the prior threat to explain complainant’s unfazed response to the threat.

Issue 2: Did the trial court err in precluding defense witnesses' testimony about Johnson's and Malloy's statements during the confrontation?

Holding: No. The testimony about the statements was admitted, albeit with a limiting instruction that it was relevant only to the witnesses' state of mind.  That limiting instruction may have been wrong, because it was the state of mind of Johnson and Malloy that mattered, not the state of mind of the witnesses recounting those statements at trial.  However, since the limiting instruction was given only once, the DCCA held that there was no prejudice.

Issue 3: Did the jury instructions unconstitutionally permit the jury to find appellant guilty without finding an essential element of the offense of threats, i.e., the mens rea?

Holding: Yes. The DCCA reviewed the issue for plain error because trial counsel failed to object to the jury instruction during trial. At the close of evidence, the trial court instructed the jury as follows: “As to the charge of threatening to kidnap or injure a person, the elements of threat, each of which the government must prove beyond a reasonable doubt, are [1] that the defendant spoke words heard by Anthony Johnson; [2] the words the defendant spoke would cause a person reasonable to believe that Anthony Johnson would be serious harmed; and [3] that the defendant intended to make the communications which constituted the threat. The government is not required to prove that the defendant intended to carry out the threat. It is not necessary that . . . the intended victim actually heard the words or learned about them.”

In Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), the DCCA held that the defendant’s intent to threaten (or at least knowledge that his words will be construed as a threat) is an essential element of a threat. Thus, there was error. "Rather than include Carrell’s language applicable to a defendant’s intent, this instruction permitted conviction merely if the words spoken would cause a person ‘reasonably to believe’ that the complainant would be seriously harmed, without regard to whether the defendant intended such a threat or knew that the words would be perceived as a threat.”

The Court found that the error was “plain” because  “plainness” is assessed at the “time of appellate review regardless of the state of the law at the time of trial.” Accordingly, with the law established by Carrell, the instructional error was plain. The government did not dispute that the error was plain.

In determining whether the error affected substantial rights of the defendant, the Court considered the fact that the alleged threats were posed as questions and that the complainant seemed unfazed by them. Given these facts, there was a “reasonable probability that the jury’s verdict could have been swayed” by the jury instructions. In addition, the Court focused on the lack of overwhelming evidence in the case, which was essentially a credibility contest; that the jury had difficulty in their deliberations, twice asking whether a different episode in the case was the basis for the threats; and the fact that the jury acquitted appellant on all other charges. The error also affected the fairness and integrity of the proceedings, as the failure to instruct on the intent element was a constitutional error on a point that was seriously contested at trial.

Dissent: Judge McLeese dissented as to the instructional issue, noting that although he agreed that the instructions were “not correct,” Malloy's words were “objectively threatening.” Thus, in his view, there was no basis for finding that the jury would have doubted appellant’s intent to threaten.

Caroline Howe, Guest-blogging.

Read full opinion here.

The en banc Court holds that defendants charged with deportable misdemeanors are entitled to jury trials.

Bado v. United States (en banc opinion) (decided June 21, 2018)

Players: En Banc Panel: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judges Washington and Ruiz. Opinion by Judge Ruiz. Concurrences by Judge Washington and Judge Thompson. Dissent by Judge Glickman, joined by Judge Fisher. Dissent by Judge Fisher, joined by Judge Glickman. Alfred Carry and Moses Cook, D.C. Law Students, for Mr. Bado. PDS and Capital Area Immigrants‘ Rights (CAIR) Coalition, as amici curiae, in support of Mr. Bado. Motions judge: Honorable Jennifer M. Anderson. Trial judge: Honorable Stuart G. Nash.

Facts: Bado fled Burkina Faso and applied for asylum in the U.S. His asylum proceedings were halted when, in 2011, he was charged with three counts of misdemeanor sexual abuse of a minor. If convicted, he would be barred from receiving asylum and removed from the United States. Appellant then pleaded not guilty and demanded a jury trial. However, because a conviction for misdemeanor sexual abuse of a minor did not expose appellant to a sentence of more than 180 days in jail or a fine over $1000, the court denied his demand. At a bench trial, appellant testified in his own defense and questioned the credibility of the complainant. He was then acquitted of two of the three charges, but sentenced to 180 days in jail and ordered to pay $50 to the Crime Victims Compensation Fund. The U.S. then commenced deportation proceedings against him because of the conviction.

In 2015, a divided panel of the Court of Appeals reversed the conviction after concluding that appellant’s right to a jury trial had been violated. The government then sought rehearing en banc that was granted, which resulted in the panel’s opinion being vacated. You can read about the panel's decision here and the grant of rehearing en banc here.

Issue: Was Mr. Bado entitled to a jury trial for a charge carrying a maximum penalty of six months or less, when a conviction for that charge also carried the threat of deportation?

Holding: Yes. “The Sixth Amendment entitles a defendant to a jury trial if he is charged with a deportable offense, even if the maximum period of incarceration does not exceed six months.”

Writing for the en banc majority, Senior Judge Ruiz explained that, in the United States, an individual is only entitled to a jury trial under the Sixth Amendment when charged with a “serious” offense. Because exposure to incarceration usually is the clearest indicator of the seriousness of an offense, a crime with the possibility of punishment of more then six months incarceration automatically qualifies as a serious offense and requires a jury trial. However, the Court established that the presumption that an offense with a penalty of less than six months incarceration is a petty offense—not requiring a jury trial—can be overcome “if [the accused] can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious one.’” Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989). In Blanton, the Supreme Court concluded that the possibility of suspension of a license and mandatory alcohol abuse courses for a driving under the influence conviction were not “significant” enough to render the offense a serious one for jury trial purposes.

Applying a Blanton analysis, the DCCA began with the presumption that misdemeanor sexual abuse of a minor was a petty offense for Sixth Amendment purposes since it had a 180-day maximum exposure to incarceration. But by noting there “is no comparison between the penalty of deportation and the statutory penalties considered in Blanton,” the Court concluded that Mr. Bado overcame the pettiness presumption by demonstrating that a 180-day jail sentence that also resulted in his placement in deportation proceedings was a serious offense. The “forced physical separation” of deportation is “considered by many immigrants to be worse than incarceration,” as deportation would result in the accused being separated from his family, exposed to poverty and violence in his home country, and barred from reentry for at least ten years per the U.S. immigration code. As the Court explained, “when a person faces deportation, serving the sentence is only the first step following conviction; once the sentence is completed, the person faces the burdens and anxiety that attend detention pending removal proceedings.” “[W]ith all the grave consequences that [removal] entails,” the “loss is so great as to be unquantifiable.”

The majority disagreed with the government’s contentions that deportation is not a penalty for a criminal offense; that removal should not be considered because it is a penalty imposed by Congress, not the D.C. Council, which created the offense; that deportation is irrelevant because it is not punishment; and that D.C. courts are not competent to determine the deportation consequence of a criminal conviction. The DCCA believed that all of the government’s arguments diverged from a “straightforward application of a Blanton analysis that includes the penalty of deportation.” As the Court spelled out, a Blanton analysis focuses on the “possible” statutory penalties that attach to a conviction, and did not distinguish between penal and civil penalties, while also disagreeing with the government’s argument that deportation is not a penal penalty. The Court also stated that the Blanton analysis looks at the possible penalties to the accused, from the accused’s point of view—meaning it was irrelevant here that a noncitizen in appellant’s situation would have the right to a jury trial where a citizen would not.

The DCCA also disagreed with the government’s contention that, because deportation is a product of federal law and not local law enacted by the D.C. Council, it does not factor into the jury-trial analysis. The DCCA instead held that the key is penalties enacted by “state action,” and in these circumstances, Congress “is the only legislative body that can prescribe the penalty of removal for a criminal conviction.” Lastly, the majority found the government’s reliance on application of the impact of deportation in non-Sixth Amendment situations, such as when it had been considered for double jeopardy or ex post facto purposes, to be unpersuasive. The Court stated that in this situation, the focus is not on a threshold question whether the proceeding is criminal—which would not apply to deportation proceedings—but what penalties flow from a conviction in a criminal case, which includes "collateral" consequences such as deportations.

And, to the extent that future courts may have difficult applying the holding of this case, the majority explained, “the difficulties that the government fears may come to pass in some other case are too remote and of insufficient import to outweigh the loss of the constitutional right to a jury trial.”

Judge Washington’s concurrence: Judge Washington noted the disparity between jury-trial rights for citizens and noncitizens. But instead of finding that a reason to limit the right to a jury trial, Judge Washington implored the D.C. Council to expand the right. Noting that D.C. is in the minority of jurisdictions that do not afford jury trials whenever a penalty of incarceration is at stake, Judge Washington urged the Council to “reconsider its decision to value judicial economy above the right to a jury trial. Restoring the right to a jury trial in misdemeanor cases could have the salutary effect of elevating the public’s trust and confidence that the government is more concerned with courts protecting individual rights and freedoms than in ensuring that courts are as efficient as possible in bringing defendants to trial.”

Judge Thompson’s concurrence: Judge Thompson, concurring in the judgment, stated that there is “no basis” for the majority’s conclusion that the penalty of deportation necessarily reflects a legislative determination that those offenses are serious. This is especially true because Congress has authorized “cancellation of removal” for noncitizens convicted of certain deportable offenses, indicating that at least some deportable offenses may not be that serious. However, in this case, because Mr. Bado was convicted of an "aggravated felony" under immigration law (a conviction for which no relief is possible in the immigration courts), Judge Thompson believed that Mr. Bado was entitled to a jury trial.

Judge Fisher’s dissent, joined by Judge Glickman: Judge Fisher considered it a “startling result” that a citizen charged with misdemeanor sexual abuse of a child is not entitled to a jury trial, while a noncitizen charged with the same crime is. Judge Fisher suggested that the “seriousness” of the offense cannot depend on the identity and individual circumstances of the defendant. Judge Fisher also thought that “we must keep firmly in mind that we are dealing here with two different legislatures”:  criminal statutes enacted by the D.C. Council, and immigration laws enacted by the U.S. Congress.

Judge Glickman’s dissent, joined by Judge Fisher: Judge Glickman added an additional point: the pettiness presumption of Blanton can only be overcome if the defendant shows that the legislature that actually enacted the criminal offense determined that additional civil penalties should be attached to the offense. Here, the U.S. Congress’s determination that an offense is deportable has no bearing on the D.C. Council’s view about the seriousness of misdemeanor sexual abuse of a minor.

Of note:

• In any case against a noncitizen charged with a 180-day misdemeanor, be certain to check if it is a deportable offense, and if so, advise your client that she may demand a jury trial.

• Although Bado focuses on deportation, its rationale applies to all “severe” collateral consequences of conviction, which can include sex offender registration. The majority states that the consequence does not have to be “punitive” to count toward the jury trial right, and Senior Judge Washington’s concurrence states that many collateral consequences are severe enough to trigger the right to a jury trial. 

KC Bridges, guest blogging.

Read the full opinion here.

Complainant’s failure to correct first responder’s inconsistent ID was admissible to impeach complainant; complainant’s later ID of the defendant to a detective was NOT admissible to rehabilitate complainant.

In re C.A. (decided June 14, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ruiz. Opinion by Judge Easterly. PDS for C.A. Trial Judge: Kimberley S. Knowles.

Facts: The trial court found C.A. responsible for two counts of attempted first degree murder as well as related lesser charges. Complainants A.H. and M.L. testified that C.A. and his companion, Mike, wearing white and black clothing, respectively, confronted and followed them, before C.A. shot at them with a gun he got from the older Mike. Shell casings, video surveillance, and gunshot audio corroborated the complainants’ account that someone in white shot at them. However, the surveillance footage was too pixelated to corroborate that C.A. was the person in white. 

The case against C.A. rested heavily upon A.H. and M.L.’s testimony. Counsel for C.A. sought to impeach A.H.’s testimony with police body camera footage showing A.H.’s failure to correct one of the first officers to respond to the scene when that officer told another that “the one in black,” i.e., Mike, was the shooter.  The trial court prevented counsel from confronting A.H. with the body camera footage based on A.H.’s denial that he heard the officer’s statement, reasoning that counsel “could not prove” that A.H. heard the officer. The court further allowed the government to introduce A.H.’s later statement to a detective, identifying C.A. as the shooter. 

Issue 1: Did the trial court err by barring extrinsic evidence of A.H.’s failure to correct the police’s statements identifying “the one in black” as the shooter?

Holding 1: Yes. The trial court overstated the foundation required to impeach with extrinsic evidence. Impeachment requires only relevance and a “good faith basis” for the impeaching fact. A party may use extrinsic evidence to impeach as long as the impeachment does not concern a collateral matter. A.H.’s failure to correct the officer when he was within earshot was directly relevant to A.H.’s credibility. Since the line of questioning challenged the central issue at trial, the identity of the shooter, the evidence was not collateral. 

Issue 2: Did the trial court err in admitting A.H.’s identification of C.A. to the detective as a prior consistent statement?

Holding 2: Yes. A.H.’s identification of C.A. did not constitute a prior consistent statement because it occurred after the prior inconsistent statement at issue—A.H.’s failure to identify C.A. to the uniformed officers on the scene—and was neither a part of, nor designed to rebut, the prior inconsistent statement. A.H.’s identification to the detective was not “directed only at the particular impeachment that occurred” in the narrow sense contemplated by Worthy v. United States, 100 A.3d 1095 (D.C. 2012), because it happened after, not before, A.H. failed to identify C.A. to first responders and did not help to explain that failure.

Issue 3: Were trial court’s errors harmless under the Kotteakos standard for nonconstitutional error set out in? 

Holding 3: No. The errors in precluding the impeachment evidence and admitting the prior consistent statements are not harmless because of its influence on the trial court’s assessment of witness credibility, and the case against C.A. was solely built upon such witness identification. WC and Christine Liu, guest blogging.

Read the full opinion here.

Hearing loud noises inside an apartment combined with occupant fully opening the door not being fully dressed deemed sufficient to meet exigent circumstances standard to justify warrantless entry into a home.

Ball v. United States (decided May 24, 2018)

Players: Associate Judges Glickman and Easterly, Superior Court Judge Okun, sitting by designation. Opinion by Judge Okun. Dissent by Judge Easterly. Sicilia C. Englert for Mr. Ball. Trial Judge: Patricia Broderick.

Facts: Around five am, police received a radio run for an “assault in progress” at an apartment building. When two officers arrived, they were met by a resident who identified himself as the person who had called because he had heard “yelling and screaming” coming from Apartment 3. As the officers began to approach the apartment, they both testified to hearing yelling and screaming coming from apartment 4, but said the resident was also pointing at that same apartment as the one he meant. One officer said he heard a “distressed female . . . yelling as if she was in pain or struggling” and the other officer said he heard a lot of “commotion.” The officers knocked several times on the door and identified themselves as police. After “one to three minutes,” a woman opened the door halfway and appeared to the officers to be “somewhat panicked and concerned.” One officer described her as being in “a daze.” The officers asked her what was happening inside the apartment but she did not answer, instead she looked back into the apartment and opened the door fully. The officers then saw a second woman inside the apartment who appeared in the process of getting dressed.

After observing these two women and not receiving any responses to their questions, the officers entered the apartment. There, they observed the appellant with his body “partially obscured by a wall.” The police asked appellant to show his hands but according to the officers he did not and instead kept looking back towards the couch in the living room and reaching towards it. One officer then “wrestled” appellant to the ground and both officers handcuffed him after a struggle that lasted one to two minutes. An officer claimed that the couch moved away from the wall during the struggle and that allowed him to see a black handgun lying behind the couch when they eventually stood up. Once they recovered the gun, the police searched the rest of the apartment “for their safety and the safety of the occupants,” and found “one bag of marijuana from the top of a refrigerator, one bag of marijuana from a television stand in the living room, and a grinder with traces of marijuana on the couch.”

Prior to trial, appellant filed a motion to suppress evidence seized from his apartment because the police entered without a warrant and without consent. The government countered that exigent circumstances permitted the police to enter and that the woman who answered provided the needed consent by fully opening the door. The trial court agreed with the government that there were exigent circumstances to justify the entry, but did not rule on the government’s claim of consent.

Issue: Did exigent circumstances justify the warrantless entry into defendant’s apartment?

Holding: Yes. The court concluded that the officers had an “objectively reasonable basis for believing that they needed to enter appellant’s apartment in order to provide emergency assistance to the occupants of that apartment,” despite neither woman that they observed asking for assistance or making any statements to them to indicate they need assistance, and without seeing any injuries on either woman. While the court said such factors often appear in other cases that justify warrantless entry into a home on an exigent circumstances theory, they are not requirements. To meet the standard, the court relied on the following factors: 1) the officers were responding to a call for an “assault in progress;” 2) the police corroborated the information in the call by first speaking with the resident who made the 911 call and then by claiming to also hear screams and loud noises coming from the apartment; 3) the one to three minute delay in opening the door after the police knocked and announced their presence; 4) the woman answering the door failing to respond to the officer’s questions but appearing to be “somewhat panicked and concerned;” and 5) and that after the door was fully opened, the officers saw a second woman who appeared to be partially dressed. The court did admit that it was a “close” case, but believed in the totality the circumstances meet the necessary standard.

Judge Easterly dissented, notinjg that appellant was in “the privacy of his own home,” he was “naked and the women were in some state of undress. The trio was loud. A downstairs neighbor called the police. The police responded and then entered his apartment, without permission and without a warrant. In protest, [appellant] cried out, ‘This is my house. I live here. This is my house.’ He seemed to think the police had no authority to barge into his house. I would have thought that such an entry was precisely what the Fourth Amendment prohibits.” Judge Easterly wrote that while police were authorized to approach the door and knock on it, they never obtained any additional information from that point on that would have warranted crossing the threshold into the apartment. The dissent found it of no consequence that the woman who answered appeared “panicked and concerned,” because that could have been due to police knocking on the door at five in the morning. The dissent stressed that the court should have also factored into its decision what the police did not see once the door was opened: neither woman appeared to be in “pain or struggling, bleeding or bruised, crying or upset, or in any apparent physical danger. There was no sign of broken objects, upended furniture, or any evidence of a struggle or physical altercation.” The dissent concluded that the majority decision is an endorsement of “surmise and speculation,” which the court’s precedent in cases such as Evans v. United States, 122 A.3d 876 (D.C. 2015) and Washington v. United States, 585 A.2d 167 (D.C. 1991), provide as insufficient to equate exigent circumstances.

Of Note:

• Judge Easterly’s dissent, combined with the majority admitting it was a “close case,” provides a roadmap of how to limit the impact of this decision to its facts in any future case where exigent circumstances is at issue. BM