JURY ISSUES
Right to a Jury Trial
Miller v. U.S., 13-CM-628 (decided June 6, 2019) –
- Holding: Failure to provide a jury trial for a deportable offense was plain error in light of Bado v. U.S., 186 A.3d 1243 (D.C. 2018) (en banc), even if appellant was subject to deportation on other grounds at the time of trial and had no pre-existing right to remain in the U.S.
Jury Selection
**Beasley v. U.S., 17-CF-1398 (decided November 21, 2019) –- Holding 1: Following defense counsel’s Batson challenge, the trial court erred in finding no prima facie case of discrimination, where the government “used 80% of its peremptory strikes against black jurors, a group that comprised approximately 33% of the venire.” Slip. Op. at 8. A statistical disparity of this magnitude was sufficient to create prima facie case, notwithstanding the lack of evidence regarding the racial makeup of the seated jury and the fact that the defense also struck some of the black jurors included in its prima facie case. Although the court has “taken note in some cases when certain classes of people have been totally excluded from a jury through the government’s use of strikes,” it has “never signaled that this factor was” either necessary or sufficient. Id. at 9. Given that the reasons underlying the parties’ overlapping strikes are “not readily apparent, the overlap [is] not a valid basis for subtracting . . . jurors from the step-one analysis of the government’s strikes.” Id. at 10-11.
- Holding 2: As in Haney v. United States, 206 A.3d 854 (D.C. 2019), the trial court’s erroneous finding that the defense had failed to establish a prima facie case requires reversal because resuming the Batson inquiry on remand, after more than two years have passed, is not feasible. The government made “no contemporaneous proffers regarding its strikes of any jurors,” and as the government has conceded, the record provides no “obvious justification” for at least three of the relevant strikes. Id. at 13-14.
- Holding 1: The defense established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), where “the prosecutor used seven out of nine (or 78%) of her peremptory challenges,” including every one of her first six challenges, to strike black jurors, who comprised 39% of the qualified venire, and “used four (or 44%) of her peremptory challenges to strike black males, who constituted only 18% of the venire,” with the result that “no black males served on the jury in a case where the defendant is a black male.” Slip Op. at 12.
- Holding 2: The trial court’s erroneous refusal to proceed to step three of the Batson inquiry (based on its erroneous determination that the defense had not made a prima facie showing), required reversal, as opposed to remand, because the prosecutor proffered demeanor-based reasons for her strikes, the trial court made no contemporaneous findings regarding those reasons, the record provided no basis to test their accuracy, and, after more than two years, a remand hearing could not be expected to “replicate the probing inquiry to which appellant was entitled.” Id. at 15-19.
- Holding: “[U]se of [a noise-cancelling] husher during individual-juror voir dire d[oes] not constitute closure or partial closure of the courtroom," burdening the right to a public trial, "but instead was a reasonable alternative [] to closing the proceeding, that protected appellant’s public-trial right.” Slip Op. at 19-20 (internal quotation marks and citation omitted).
Jury Deliberations
Roberts v. U.S., 15-CF-307 (decided August 8, 2019) –
- Holding 1: Where a juror’s note indicated a possible deadlock and a numerical split in the jury’s voting, the trial court erred and violated appellant’s constitutional right to be present and represented by counsel at trial when, in an effort to prevent itself from learning the numerical split, the court refused to allow defense counsel to read the note. Slip Op. at 8-11.
- Holding 2: The trial court’s error was not harmless beyond a reasonable doubt because, had defense counsel been able to read the note, he could have relayed its contents (minus the numerical split) and argued—“with authority” and a “reasonable possibility” of success—for a mistrial or an instruction that no juror should “surrender [her] honest conviction as to the weight or effect of evidence solely because of the opinion of [her] fellow jurors, or only for the purpose of returning a verdict.” Id. at 12-13. Although defense counsel sought these remedies unsuccessfully below, the trial court’s reason for refusing to grant them was its self-imposed ignorance regarding the note’s content. Id. at 13-14.
EVIDENTIARY ISSUES
Expert Testimony
**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) –
- Holding: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Slip Op. at 20.
- Background: Appellant was convicted of multiple offenses related to an attack on his former landlord, Kelly, and the murder of Nichols, the man who replaced him as Kelly’s tenant. Kelly testified that appellant had entered his home after moving out and shot him in back of the head, before stabbing him, hitting him with a cinder block, and trying to put him in the trunk of a car. Witnesses corroborated that appellant fled Kelly’s house after the two struggled with each other. After Kelly called 911, police discovered Nichols’s body inside the house. At trial, the government’s theory was that appellant attacked Kelly to cover up the fact that he (appellant) shot Nichols earlier in the day. Appellant’s defense was that Kelly shot Nichols and then attacked appellant for refusing to help dispose of Nichols’s body. The government elicited false expert testimony purporting to match hair found on Nichols’s body to appellant, hair found on appellant’s coat to Nichols, and hair found on a cinder block in Kelly’s house to Kelly.
- Holding: The government’s false hair comparison testimony was material to appellant’s convictions related to the attack on Kelly because it tied appellant to Nichols’s murder, helping the government prove appellant’s alleged motive for assaulting Kelly. The prosecutor linked the two crimes in opening and closing and argued that hair analysis would prove that appellant was guilty of both. Moreover, by linking appellant to Nichols’s murder, the hair analysis contradicted appellant’s defense that Kelly had attacked him for refusing to help dispose of Nichols’s body.
- Holding: After Gardner v. U.S., 140 A.3d 1172 (D.C. 2016) and Motorola, Inc. v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), “it is plainly error to allow a firearms and toolmark examiner to unqualifiedly opine, based on pattern matching, that a specific bullet was fired by a specific gun.” Slip Op. at 22.
- Holding: In an assault case, the trial court reversibly erred in admitting evidence that appellant used PCP eighteen hours before he struck his longtime roommate in the eye with a knife, where the government presented no expert testimony to enable the jury to decide whether appellant was still under the influence at the time of the attack. Absent such expert testimony, appellant’s PCP use was substantially more prejudicial than probative and was not admissible to explain why appellant would attack the complainant or to impeach appellant’s ability to perceive and recall the incident.
- Holding: False testimony regarding microscopic hair comparison was material to the outcome of appellant’s armed robbery trial, given the high degree of certainty that the expert expressed regarding the comparison and the prosecutor’s forceful reliance on that certainty in closing. The remaining evidence, consisting of eyewitness identifications by long-time acquaintances, was not so overwhelming as to render the hair comparison immaterial. Slip Op. at 25-36.
Hearsay
- Holding 1: Where a government witness claimed that while talking to 911 outside of a crowded party, he overheard an unknown declarant accuse appellant of a shooting, the trial court erred by admitting the accusation as a present sense impression without sufficient evidence that it was based on personal knowledge. To satisfy the present sense impression exception, the proponent of a hearsay statement must show by a preponderance of the evidence, inter alia, that the statement was based on personal knowledge. Slip Op. at 10-13. The evidence presented did not meet this standard. No witness placed the unknown declarant at the shooting. Id. at 14-15. Although the declarant was inferentially near the government witness when the witness later found decedent’s body and called 911, the record does not show that this call happened close enough in time and place to the shooting to infer the declarant’s presence there. Id. at 15-18.
- Holding 2: The trial court plainly erred in admitting evidence that when accused, appellant did not deny having dropped the clip from his gun while fleeing the scene of the shooting, under the adoptive admission exception to the hearsay rule, because government put forward no evidence from which a reasonable factfinder could infer that appellant heard and understood the accusation. Id. at 23-25.
- Holding 3: The trial court’s errors were not harmless because the government used the erroneously admitted hearsay statements to bolster the credibility of its only eyewitness, whose account and credibility were impeached on multiple fronts. Id. at 25-32.
- Holding: A police officer’s notes regarding the phone number that called complainant (in alleged violation of a civil protective order), were admissible, insofar as the officer transcribed the number from the call log on complainant’s phone, which contained machine-generated output, rather than the out-of-court statements of a human declarant. Appellant’s hearsay objection did not preserve a separate challenge to the reliability of the call log, and the trial court did not plainly err in admitting evidence of it despite reliability concerns expressed on appeal.
Physical Evidence
**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)
- Holding: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Slip Op. at 24-25.
Blades v. U.S., 15-CF-663 (decided January 23, 2019) –
- Holding: Any error in admitting photo arrays that contained appellant’s mugshot was harmless beyond a reasonable doubt where, “[d]espite learning that appellant had broken the law” by possessing an unregistered gun and ammunition, the jury found him not guilty on some charges. Slip Op. at 24.
- Of Note: In assessing whether admission of the photo arrays was harmless, the court reasoned, contrary to the trial court below, that “the unsmiling expressions on the men’s faces do suggest that the photos may be mugshots.” Id. at 23.
**Added November 22/25, 2019
-WCC
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