Friday, January 5, 2018

ICYMI: the OAG may not prosecute voyeurism.


In re Perrow (decided Nov. 9, 2017)

Players: Chief Judge Blackburne-Rigsby. Associate Judges Glickman and Thompson. Opinion by Chief Judge Blackburne-Rigsby. Leonard L. Long for Mr. Perrow. Trial Judge Wendell P. Gardner, Jr.

Facts: In 2006, the D.C. Council enacted the Omnibus Public Safety Amendment Act, outlawing voyeurism and delegating exclusive authority to prosecute the offense to the Office of the Attorney General (“OAG”). Thereafter, the U.S. Attorney’s Office (“USAO”) charged Mr. Perrow with voyeurism. Mr. Perrow moved to dismiss the charge, arguing that the OAG had sole authority to prosecute under the Council’s 2006 legislation. The USAO opposed, arguing that under D.C. Code § 23-101, as enacted by Congress in 1970, the Council could not allocate power to prosecute voyeurism to the OAG. Judge Gardner certified to the Court of Appeals the question of whether the Council’s 2006 delegation of prosecutorial authority was valid.

Issue: Was the D.C. Council’s attempt to delegate authority to prosecute voyeurism to the OAG valid?

Holding: No. While the Home Rule Act allows the Council to enact new criminal statutes, the Council may not designate the OAG prosecutor of those new offenses, unless they fall into one of two categories that Congress authorized the OAG to prosecute in 1970: D.C. Code § 23-101(a) violations of police or municipal ordinances or regulations or penal statutes in the nature of such an ordinance and regulation with a maximum punishment of a fine or one year or less of imprisonment; and (b) violations of the statutes prohibiting “disorderly conduct” and “lewd, indecent, or obscene acts.” The Court reaches this conclusion because D.C. Code § 23-101(c) reserves authority to prosecute all other crimes to the USAO, “except as otherwise provided by law,” and, under the Home Rule Act, the Council may not enact laws that affect the “duties or powers” of the USAO. Thus, if a crime falls without the scope of § 23-101(a) and (b), the Council may not delegate any authority to prosecute it to the OAG, as doing so would affect the duty and power of the USAO to prosecute the same offense.

Mr. Perrow was charged with recording a woman’s private area without her knowledge or permission, in violation of D.C. Code § 22-3431(d). The Council may authorize the OAG to prosecute under this statute, only if it (a) constitutes a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation or (b) proscribes “essentially” the same behavior as either the “disorderly conduct” statute or the “lewd, indecent, or obscene acts” statute. Voyeurism does not meet either test.

Voyeurism is not a “lewd, indecent, or obscene act[]” because it does not involve exposing one’s own genitalia or making obscene or indecent sexual proposals to a minor. Although voyeurism is similar to the “Peeping Tom” variety of “disorderly conduct,” a “Peeping Tom” offense requires only that a person look stealthily into a dwelling, occupied or not, under circumstances in which the occupant would have a reasonable expectation of privacy. Voyeurism, by contrast, requires that the defendant intend to view, record, or capture the image of a person’s body, regardless of whether that body occupies a dwelling. Other “disorderly conduct” offenses are not even remotely similar. The OAG and Mr. Perrow do not even contend that the voyeurism law is a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation. WC

Read the full opinion here.

Wednesday, January 3, 2018

Convictions reversed based on erroneous introduction of physical evidence without proper foundation


Smith v. United States (decided December 28, 2017)

Players: Associate Judges Thompson and Beckwith. Senior Judge Farrell. Opinion for the Court by Judge Thompson. Opinion concurring in part and dissenting in part by Judge Farrell. Ian A. Herbert, Nathaniel Edmonds, Jamie Gardner, Matthew Crossman, and Danielle R.A. Susanj for Mr. Smith. Trial Judge Rhonda Reid-Winston.

Facts: A man “with dreadlocks, or cornrows” knocked on complainant’s apartment door one evening and asked for a cigarette. Complainant recognized the man as someone he had given cigarettes before but told the man that he did not have any and closed the door. About a half-hour later, the same man knocked on complainant’s door and asked the same question. When complainant again said no, someone pushed the door open, and the cornrowed-or-dreadlocked man entered the apartment with two others who, unlike their companion, were wearing ski masks.

A masked man subdued complainant and bound his hands, while the mask-less man started removing complainant’s televisions. A masked man told complainant not to say anything to the police, adding “[w]e know where you live.” Later, when there was a knock at the door, the mask-less man opened it, closed it very quickly, announced that the police were at the door, and ran out of the back bedroom. The masked men also ran.

Officer Simic testified that when he knocked on complainant’s door (in response to a call for an assault in progress), a man in a dark outfit with long dreadlocks wearing black gloves opened the door and slammed it seconds later. At trial, Simic identified appellant as the man who answered the door and testified that he saw appellant jump out of a window after Officer Ellis yelled “Police[.] [D]on’t jump.” Ellis, who chased the jumper on foot, gave inconsistent testimony about his identity.

Officer Hernandez followed in his vehicle to a wooded area where he eventually found appellant lying on the ground and arrested him. Appellant told Hernandez he had “the man’s” wallet in his back pocket. In addition, police found several items that belonged to complainant on appellant’s person. Appellant told police that someone passed the property to him when either “we” or “they” were jumping out of the window.

Hernandez did not find the gloves that Simic included in his description of the door-answerer on or near appellant at the time of his arrest. Nevertheless, the government introduced a pair of gloves at trial that Simic testified he received from another officer who did not testify. Simic testified that these gloves were the ones worn by the door-answerer.

Complainant testified that he had “never seen [appellant] before,” and that the man who entered his apartment without a mask was much taller. Appellant testified that as he was walking by complainant’s apartment window on the date in question, a man asked him to help with a TV and then disappeared inside. Appellant then saw a man in a black coat leap from the window and run away. Appellant testified that he picked up a wallet, phone, and MP3 player from the grass where the man landed and ran after the police started chasing him. Appellant denied wearing gloves that evening.

Although the government argued that appellant was one of the burglars inside complainant’s apartment, the trial court instructed the jury on aiding and abetting, stating that it was not necessary for appellant to have been present while the crime was committed. Appellant requested a three paragraph theory of the case instruction which stated not only that he had not been present during the burglary but also that the property he picked up had been dropped by an unknown person. The trial court refused to give the final paragraph of the instruction regarding how appellant came to possess the property. The jury found appellant guilty of first-degree burglary, kidnapping, robbery, and threatening to kidnap or injure a person.

Issue 1: Was there sufficient evidence to support appellant’s convictions?

Holding: Yes. The jury was free to credit Officer Simic notwithstanding the discrepancies in his description of appellant. The jury could also credit that appellant stated “we” jumped out of a window, when he was being arrested. The jury was entitled to discredit appellant’s innocent explanation for how he came to possess complainant’s property.

Issue 2: Did the trial court reversibly err in admitting the gloves without proper evidence of where they were found?

Holding: Yes. Although a missing link in the chain of custody generally goes to weight rather than admissibility, the DCCA has applied this principle only to items found in the defendant’s possession. Here, appellant was not wearing the gloves when he was arrested; nor were they found where he was arrested. Even assuming, as Simic testified, that the man who answered the door was wearing the gloves, they did not tend to prove that appellant was the door-answerer absent proof that police recovered them from appellant. The gloves were thus irrelevant.

Similarly, the gloves were prejudicial because they suggested—without actually proving—that appellant was the man who answered the door, which was the central dispute of fact at trial. The government emphasized the gloves in closing as key corroboration for Simic’s identification of appellant. Without improper corroboration from the gloves, it is reasonably likely that the jury would not have discounted appellant’s misidentification defense. The government's case was not overwhelming. The officers other than Simic were inconsistent or equivocal in their identifications of appellant as the jumper. The complainant testified that appellant was not the person who entered his home.

Issue 3: Did the trial court err by removing the third paragraph of appellant’s proposed theory-of-the-case instruction regarding how he came to possess complainant’s property?

Holding: Yes. Given that the jury was instructed on aiding and abetting, appellant was entitled to have the jury instructed on his contention that he did not know—and thus could not have been aiding—the burglar who jumped out of the window and dropped complainant’s property. This contention was a necessary component of appellant’s defense to aiding and abetting. Without it, appellant “may” have been deprived of his constitutional right to present a defense to aiding and abetting.

Of Note:

  • Judge Farrell concurs in the Court’s assignments of error but would not reverse.
  • While noting that appellant “arguably” failed to preserve his objection to admitting the gloves, the Court declined to apply the plain error standard because the government did not urge its application. 
  • In light of its ruling that the gloves were irrelevant and prejudicial, the Court declined to resolve appellant’s argument that admitting the gloves without proper foundation amounted to implied hearsay in violation of the Confrontation Clause. The Court noted, however, that it was “fair to say” that the gloves either were irrelevant and prejudicial, as it concluded, or relied on implied hearsay in violation of the Confrontation Clause. WC


Read the full opinion here.

Friday, December 22, 2017

Convictions set-aside under the Youth Rehabilitation Act may still trigger repeat-offender sentencing enhancement.

(Singer/Songwriter Richard Marx of “Repeat Offender” Fame)

Wade v. United States (decided November 16, 2017)

Players: Associate Judges Fisher, Thompson, McLeese. Opinion by Judge McLeese. Trial Judge: Lynn Leibovitz. April E. Fearnley for Appellant.

Facts: On October 8, 2015, police received an anonymous 911 call. The caller reported seeing a man with a gun in his waist in the 1200 block of 7th Street NW. This man was walking with another man. Police responded and saw two men matching the descriptions about a block away from where the caller had said. The defendant, Mr. Wade, matched the description of the man who was reported to have had a gun. The officers pulled their police car alongside the two men, who both began running. Officer Brown gave chase and briefly lost site of Mr. Wade as he ran around a shed. Shortly after, he regained sight of Mr. Wade and apprehended him. The officer conducted a pat down but did not find a gun.

However, a civilian eyewitness reported seeing a man matching Mr. Wade’s description toss a gun near the same shed behind a dumpster. (At trial, the civilian said he did not actually see the gun tossed, which he had testified to at the suppression hearing, but only that he saw the man run past with someone else and then saw a gun in the air). An officer looked in the area and saw a gun in plain view. Police then conducted a showup and the witness identified Mr. Wade as the person who threw the gun. Police placed Mr. Wade under arrest and a search incident to arrest recovered six .357 caliber bullets. Mr. Wade was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1:  Did police have sufficient reasonable suspicion to support the initial stop?

Holding: Yes. The Court cited the fact Mr. Wade was observed near the location the 911 caller had said and matched the description from the caller (black male, navy blue shirt, tan hat, blue jeans, walking with another black male wearing a light green shirt). Plus, when the officers arrived, Mr. Wade fled and was observed placing his hand near his waist, which was where the 911 caller said he saw the gun. The Court concluded such facts were sufficient for reasonable suspicion.

Issue 2: Was the showup identification procedure unduly suggestive?

Holding: No. The Court noted that all showup identifications involve some suggestivity but that “something more egregious than mere custodial status is required to establish” impermissible suggestivity. Here, Mr. Wade was in handcuffs, with an officer on either side of him and standing between two police cars. The Court concluded that did not rise to the level of impermissible suggestivity. The Court stated that the fact one of the officers on the scene had a “passing familiarity” with the eyewitness did not render the identification procedure unduly suggestive.

Issue 3: Was the evidence sufficient to establish that Mr. Wade possessed the gun?

Holding: Yes. Mr. Wade cited to the eyewitness’s testimony at trial where he said he did not actually see Mr. Wade throw the gun and saw two people run behind the shed to support his argument that the evidence was insufficient to show he ever had the recovered gun. The Court disagreed. The Court cited the 911 call and that Mr. Wade matched the description of the person observed with a gun, that he fled when police arrived and was observed with his hand in his waistband area, the witness said he saw a gun tossed behind a dumpster at the same time Mr. Wade ran behind the dumpster, and Mr. Wade possessed bullets that matched the caliber of the gun recovered.

Issue 4: Did the trial court err in imposing a three-year mandatory minimum sentence on the count of unlawful possession of a firearm?

Holding: No. UPF prohibits possession of a firearm by persons with a prior conviction punishable by more than one year and provides for a mandatory minimum sentence for anyone who violates the statute and has previously been convicted of a crime of violence other than conspiracy. Mr. Wade had a prior conviction for attempted robbery, which is punishable by more than one year and which meets the definition of crime of violence. However, he contended that his conviction could not be used to impose the mandatory minimum because it had been set aside under the Youth Rehabilitation Act (YRA). The Court disagreed. The Court first cited the YRA itself, which explicitly authorizes a set-aside conviction of attempted robbery to be used to support a conviction. Mr. Wade tried to draw a distinction between using a set-aside conviction to provided a needed element for a conviction as opposed to using it to impose a mandatory sentence. Though the Court agreed that the YRA was silent as to that question, it did not agree that the YRA supported such a distinction. The Court believed that the legislative history of the YRA supported its conclusion that no such distinction exists. Accordingly, the trial court correctly determined that Mr. Wade was subject to a three-year mandatory minimum for his UPF conviction.

Of Note: 

  • The Court did not address Mr. Wade’s argument that police exceeded the scope of a lawful investigative detention by detaining him for between forty-nine and fifty-three minutes before conducting the showup identification because the Court concluded that police had probable cause to arrest when they recovered the gun in the area where the witness had said it had been thrown.
  • The Court noted that this case had a “procedural wrinkle” of whether it can rely on evidence that was developed at trial that contradicted evidence at the suppression hearing to reverse a decision of the trial court when the losing party failed to renew the motion to suppress based on the new evidence at trial. The Court concluded that in this situation the trial evidence would not have changed the outcome of its decision on the suppression hearing, but attorneys should remember to renew any suppression if additional evidence is developed at trial that could alter a trial court’s pre-trial decision. BM

Wednesday, December 6, 2017

Using flame to repel a trespasser is not necessarily unreasonable.

Jones v. United States (decided November 9, 2017)



Players: Associate Judges Glickman and Easterly. Senior Judge Pryor. Opinion by Judge Glickman. Rupa Ranga Puttangunta for the appellant. Trial Judge Ann O’Regan Keary.

Facts: Appellant, a homeless woman, regularly slept on a cardboard box on the floor of the McPherson Square metro station. One night, she set her box close to homeless man, who told her that he “didn’t want her there” and proceeded to kick appellant and put his feet on appellant’s box after appellant lay down. Appellant asked several times for the man to remove his feet and when he would not, appellant lit the corner of the box closest to appellant’s feet on fire. The box did not burst into flame, but rather burned slowly like a cigarette. When the man did not move his feet, appellant extinguished the fire so that the man’s feet would not burn. Following a bench trial, a judge found appellant guilty of simple assault and attempted possession of prohibited weapon. The judge rejected appellant’s defense of property justification, reasoning that the force applied—fire—was not reasonable.

Issue: Was there sufficient evidence to support appellant’s convictions and overcome appellant’s defense of property justification? Was appellant’s use of force in lighting her cardboard box on fire unreasonable?

Holding: No. Appellant repeatedly requested that the man move his feet before igniting the box, which was for legal purposes her bed. No officers were around to help. Appellant neither harmed nor attempted to harm anyone in the process. The fire was too small and slow progressing to pose a risk to the trespasser.

Of note: Jones marks the second time in 2017 that the Court of Appeals rejected the notion that a certain kind of force (fire) was so unreasonable as to negate a justification defense. In the first case, Parker v. United States, 155 A.3d 835 (D.C. 2017), the Court found that spitting was not an unreasonable response to being threatened and spat upon. These cases reaffirm the government’s burden to prove that the force applied in a given case was not reasonably necessary under the circumstances as they appeared to the defendant. WC

Read the full opinion here.

Wednesday, October 25, 2017

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

Monday, October 23, 2017

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

Tuesday, October 17, 2017

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.