That Seems Like a Strange Way to Commit a Robbery…

Gray v. United States (decided March 16, 2017)

The Players: Associate Judges Beckwith and McLeese, and Senior Judge Farrell.  Opinion by J. Beckwith, concurrence by J. Farrell, and dissent by J. McLeese. Sydney J. Hoffmann for Mr. Gray. Trial Judge: William M. Jackson.

Facts: Security-camera footage showed a man, identified by the complaining witnesses as Mr. Gray, enter a convenience store one evening and “engage in a series of bizarre acts.”

According to the footage and witness testimony, he approached two women and their children (two of whom were in strollers), first reaching into one of the strollers, and then gesturing towards the group, holding his hands in front of his body while forming a diamond shape with his thumbs and forefingers.  He next touched the two women and one of the children on the forehead with his palm. Then, he reached into the second stroller, pulled a bottle out of the mouth of the baby in the stroller, and told the mother not to give the baby the bottle because the baby would die.

After this strange sequence of events, he then picked up a wallet the one of the mothers had left on it. He then sat down, rummaged through the wallet and removed $7. He tossed the wallet back on the counter, stood up, and walked out of the store. As he left, he pointed to the owner, and said something like “you’re going to die.”

Mr. Gray was convicted at trial of one count of robbery, one count of threats to do bodily harm, and three counts of simple assault. The defense’s request that the jury be instructed on the lesser-included offense of second-degree theft was denied.

Issue 1: Did the trial court err in not giving an instruction on the lesser included offense of second-degree theft because the evidence would have supported a finding by the jury that the assaults and taking of the complainant’s money were distinct from one another.

Answer: Yes. On the “unusual facts of this case,” the DCCA held that the evidence supported a rational conclusion that Mr. Gray neither assaulted the complainants with the intent of effectuating a subsequent taking, nor consciously exploited the fear created by the assaults when taking the money.

The DCCA found that based on the evidence presented—particularly the camera footage—the jury could rationally have concluded that “the assaults and the theft were not connected but rather resulted from a series of separate, erratic impulses.”  In other words, Mr. Gray’s behavior was so strange that the jury could well have believed that the theft of the $7 dollars was spontaneous and unconnected to this touching the complainants with the palm of his hand.

Note: The majority opinion draws two important legal conclusions about the robbery statute in the course of its analysis on this point. First, while case law makes clear a defendant can commit a robbery when she takes advantage of the fear created by assaultive acts that were committed with no robbery in mind, the defendant must purposefully take advantage of that fear, not simply coincidentally benefit from it.  The second is that simply taking something from a victim’s “immediate actual possession” (as opposed to the victim’s person) does not constitute robbery because “such a principle would completely nullify the ‘by force or violence’ element of robbery.”

Judge Farrell’s concurrence also stresses the unique facts of this case, and the unlikelihood that a similar scenario would present itself.

Issue 2: Was the failure to give the lesser-included offense harmless?

Answer: No. The error was not harmless for two reasons. First, the instruction would have lent credence to the defense’s claim in closing that the assaults were not intended to effectuate a robbery. Second, by giving the jury a middle ground between robbery and acquittal, the instruction would have prevented the jury from making the decision to convict simply because it was all or nothing—either convict for robbery or allow obviously illegal behavior to go unpunished.

Other Issues: Mr. Gray also challenged the sufficiency of the evidence on the robbery charge, as well as the voluntariness of his waiver of his Fifth Amendment privilege not to testify. The DCCA denied both challenges.  CP

Read the full opinion here.

Critical defense witnesses should be granted immunity if expected testimony meets definition of exculpatory and material as defined in Brady, and limits on government’s ability to impeach such a witness who is forced to invoke the Fifth Amendment.

Kevin Young v. United States (decided July 28, 2016).

Players: Chief Judge Washington, Associate Judge Beckwith, and Senior Judge Reid. Opinion by Judge Beckwith.  Cecily Baskir for Mr. Young.  Trial Judge: Michael Ryan. Cecily Baskir for Mr. Young. 

Facts: In October, 2012, two Metro police officers responded to a disorderly conduct call and, upon arrival, observed two men arguing. They were later identified as Mr. Young and his nephew Maurice. The officers observed a white SUV nearby with the engine running. One police officer looked inside the car and saw a belt with an empty gun holster and handcuffs in the backseat as well as two vials in the driver-side door handle. The officer then asked Mr. Young if he was a police officer, and Mr. Young said he was not but had found the items. He also said he had “just drove up.”

Mr. Young walked back to the car and the officers saw him place his hands over the two vials. At that time, the officers noticed a smell they believed was PCP. When asked what he was covering up, Mr. Young said “oils.” He was then placed under arrest. At trial, it was stipulated the two vials contained 5.6 grams of liquid PCP. 

At a pre-trial suppression hearing, both Mr. Young and Maurice testified that Mr. Young had driven the car and his nephew Maurice was the only passenger. But at trial, counsel for Mr. Young raised a Carter issue by telling the court Maurice should be granted immunity because he would testify he was the last person to drive the car and the drugs belonged to him, making him a “critical defense witness.” Counsel for Maurice proffered to the court that Maurice would testify he had driven the car but that he had no knowledge of the drugs. Maurice had also testified at a suppression hearing that he was intoxicated at the time. The court concluded Maurice had a Fifth Amendment privilege and, because his testimony would be exculpatory, asked the government to decide whether to grant Maurice immunity. Ultimately the government told the court it would for DUI but not for the charges related to the drugs and underage drinking. The government’s reason was that his testimony he was driving would be “a clear instance of perjury” that the government could not “support.”

The court then reconsidered its ruling and concluded Carter was not implicated because Maurice’s testimony would not have been “clearly” or “wholly” exculpatory. The court said Carter would only be implicated, which would require the government to grant Maurice immunity or reach some other resolution to preserve Mr. Young’s right to a fair trial, if Maurice would have testified “the drugs were mine” or “I can tell you that the drugs weren’t mine.”

Maurice testified at trial without immunity and asserted his Fifth Amendment rights when asked if he was the driver or the passenger of the car and if he put the drugs inside the car. However, he then said he did not place the drugs in the car. On cross-examination, the government introduced Maurice’s suppression hearing testimony where he said Mr. Young had driven the car. 

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

Issue 1:  Did the trial court err in determining that Carter was not implicated because Maurice’s testimony would not be “clearly exculpatory”? 

Holding: Yes. The Court acknowledged that its cases have used both the term “exculpatory” and “clearly exculpatory” when laying out the test for trial courts to use under Carter. The test states that defense witness immunity is required upon a showing that: 1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and 2) the witness’s testimony will be material, exculpatory and not cumulative and is not obtainable from any other source. Carter v. United States, 684 A.2d 331, 340 (D.C. 1996). Because Carter emphasized that its rule “emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant,” citing cases that involve application of the Brady doctrine, the Court concluded that “exculpatory” in the Carter standard means the same thing as in the Brady context. Exculpatory evidence under Brady is evidence that “tends substantively to negate guilt.” As a result, the proffered testimony here was favorable to Mr. Young, and thus exculpatory because “it established that another person was the most recent occupant of the driver’s seat where the drugs were found and thus increased the likelihood that the drugs did not belong to Mr. Young.” Nothing more was required.

Next, the Court decided whether the government was “reasonable” in refusing to grant Maurice immunity because it believed he intended to clearly perjure himself at Mr. Young’s trial. In Carter, the Court stated that “a threat of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the trial judge [that] the government could not reasonably be expected to cloak in advance such testimony with immunity.” But in this case, the Court did not agree with the government that Maurice’s proffered trial testimony would constitute perjury. Even though Maurice’s proffered trial testimony would have been contrary to his testimony at the suppression hearing, he could have offered a “plausible explanation for the discrepancy, and it is not at all obvious that Maurice’s proposed trial testimony was the untrue account.” 

Further, consistent with Carter’s purpose of balancing the defendant’s Sixth Amendment right and the witness’s Fifth Amendment right, the question whether denial of immunity is reasonable relies in part on “whether there will be a distortion of the fact-finding process” should the government deny immunity.” Here, because the government introduced Maurice’s suppression hearing testimony after he had invoked his Fifth Amendment in response to questions asking if he was driving the car, there may have been such a distortion. The introduction of his suppression hearing testimony “distorted” the case because it allowed the jury to hear one version, his suppression hearing testimony, while never hearing the other version. The Court stated that while “[t]he Carter process was designed to alleviate this tension between Maurice’s and Mr. Young’s constitutional rights,” the government’s refusal to grant Maurice immunity and then presenting the jury with his previous statements after he had invoked his privilege actually “exacerbated this tension.” 

However, the Court affirmed Mr. Young’s conviction, finding Maurice’s testimony would not have been “material.” Carter, applying the Brady doctrine, requires that the proffered testimony be both exculpatory and material. Evidence is material if “there is a reasonable probability that  . . . the result of the trial would have been different” had the evidence been presented. Even had Maurice testified he was the driver of the car, the government presented “considerable evidence” of Mr. Young’s ability and intent to exercise dominion and control over the drugs: 1) he was riding in a car that smelled of PCP; 2) he attempted to cover up the PCP when the door was opened in front of the police officers; and 3) he asserted, incorrectly, that the vials contained “oils.” 

Issue 2: Was the evidence sufficient to convict Mr. Young of PWID?

Holding 2: Yes. The Court concluded there was sufficient evidence to support the element of PWID requiring proof beyond a reasonable doubt of Mr. Young’s intent to distribute. Though he possessed a very small amount of PCP, it was contained in two half-ounce glass vials that were each a quarter full. The government presented expert testimony that half-ounce vials are “usually” purchased by street dealers who “take the vials and stand ‘in an open air market,’ where they can . . . distribut[e] the liquid to customers who dip cigarettes in the PCP solution and smoke them.” The expert opined that the vials in this case were “identical” to the half-ounce vials which a street dealer purchases. As a result, even though the relatively small amount could have been consistent with personal use, the evidence was sufficient to prove the drugs were for sale “when their packaging is suited for distribution.” 

Of Note:

• The opinion has several important holdings for future cases involving Carter and requests for the government to grant immunity to a “critical defense witness.”

• First, the opinion makes clear that the government cannot refuse to grant a “critical defense witness” immunity simply because they expect the witness to contradict previous testimony. The Court said it must be “obvious that [the witness’s] proposed trial testimony was the untrue account.”

• Second, Carter does not require a heightened standard for showing the expected testimony would be “exculpatory.” It does not have to be testimony, as the trial court here believed, that would “wholly” exonerate the defendant. Instead, the Court states that the standard in the Carter context is the same as in Brady: the proffered testimony need only tend substantively to negate guilt.

• And third, in the event the government refuses to grant immunity, it cannot be allowed to then introduce prior statements to impeach the witness if it is only to impeach the witness invoking his privilege against self incrimination. Such a scenario will result in a “distortion of the fact-finding process,” which is what Carter was designed to prevent. If such a situation is to occur, the argument to the trial court should be that the government must either 1) grant the witness immunity or 2) not present the jury with the prior statements for the purpose to impeach the witness who has invoked the privilege. BM

Read full opinion here.

DCCA to MPD: If you’re going to handcuff a suspect, you’d better issue Miranda warnings before you start asking questions.

Fredrick E. Morton v. United States (decided October 29, 2015).

Players: Chief Judge Washington, Associate Judge Blackburne-Rigsby, Senior Judge Ferren.  Opinion for Chief Judge Washington.  Concurrence by Senior Judge Ferren.  PDS for Mr. Morton.  Trial Judge: Lynn Leibovitz.

Facts: Fredrick Morton was chased, detained, and handcuffed on suspicion of engaging in a drug transaction.  He tossed a wallet along the way, which police picked up.  The investigating officers told him that he was not under arrest but stated, “We need to know why you ran.  Why would you run if you didn’t do anything?”  The officers later asked, “What was up with the wallet?” “I saw you throw a wallet.  What’s up with the wallet?”    Client said he found it on the Metro.  He was then formally arrested.

Issue: Whether Mr. Morton was in custody for Fifth Amendment purposes, when (1) he was restrained with handcuffs after being chased by police, and (2) police confronted him with evidence that was sufficient to establish at least probable cause that he had committed a crime, but (3) police told him that he was not under arrest before he was questioned, and (4) the questioning was brief and (5) took place on a public street where (6) the investigating officers did not brandish weapons.

Holding: Yes.  “Mr. Morton’s detention by use of handcuffs, although not strictly dispositive on this issue, strongly militates toward a finding of Miranda custody.”  Slip op. at 13.

Of Note: 

• The Court offers a handy review of the factors that are relevant to determining whether an individual is in custody for Fifth Amendment purposes: the degree to which the police physically restrain the suspect (including whether the police use handcuffs); what the police say to the suspect (especially whether police tell the suspect that he is not under arrest and may decline to answer questions); whether interrogation occurs in public or in a “secluded area;” the length of the detention and questioning; whether the police questioning is “inquisitorial” or “accusatory;” the show of force or brandishing of weapons by the police; whether the suspect is confronted with obvious evidence of his guilt; and whether the police already have sufficient cause to arrest, and the suspect knows this.  Slip op. at 11-12.

• The government argued that Mr. Morton was not in custody because police told him that he was not under arrest.  The Court found this argument unconvincing, reasoning that this statement by police is not worth much if police do not also inform the suspect that he is free to leave or that he may decline to answer questions. 

• The Court declined to rule on whether, in the Fifth Amendment context, the “reasonable person” test presupposes a “reasonable innocent person,” as opposed to simply a “reasonable person” in the defendant’s position.  Read Senior Judge Ferren’s concurrence for a thorough discussion of why, for Fifth Amendment purposes, the detainee’s state of mind is that of a reasonable person in the detainee’s position.  NG

Read full opinion here.