Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

Holdings:
1. In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.


Of Note: 
- The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.

The Prosecutor Is Allowed To Argue That The Police Officer “Didn’t Do His Job”

Furr v. United States (decided April 13, 2017)

Players: Associate Judges Glickman & Beckwith, Senior Judge Pryor. Opinion by Judge Glickman. Judge Beckwith concurring in part and concurring in the judgment. PDS for Mr. Furr. Trial Judge: Russell F. Canan.

Facts: Mr. Furr, an off-duty police officer, propositioned a woman at CVS. The woman said no, and her friend, Wallace Patterson, intervened. Another off-duty police officer, Edward Stewart, was moonlighting as a private security guard at the CVS. He witnessed the dust up between Patterson and Mr. Furr, and asked Mr. Furr to leave.

Outside, Patterson and another friend walked past Mr. Furr’s car. Patterson testified that as they walked by, Mr. Furr rolled down his window and shouted at him. Patterson told Mr. Furr to get out of the car, at which point, Mr. Furr pulled a gun from his glove compartment and pointed it at Patterson.

Patterson went back to the CVS and told Officer Stewart that Mr. Furr had a gun. Stewart approached Mr. Furr’s car and called for back-up. Upon seeing Stewart approach, Mr. Furr got out of his car and told Stewart that he was a police officer too. Relieved, Stewart cancelled the request for back-up. Stewart testified at trial that Patterson never told him Mr. Furr pointed a gun at him.

The night ended with a car chase/crash and a one-way shoot-out. Mr. Furr faced a bunch of charges as a result, and he was acquitted of most of them. The only charge now at issue was the assault with a dangerous weapon count that Mr. Furr was convicted of for pointing a gun at Patterson.

The dispute on appeal revolves around MPD’s investigation into Officer Stewart’s conduct that night. The investigation concluded that Officer Stewart acted appropriately. Nevertheless, at trial, the prosecutor elicited from Stewart that MPD investigated whether he took “appropriate police action” that night. The prosecutor did not ask about the investigation’s outcome. On cross-examination, Stewart testified that the MPD investigation “exonerated him.” The defense wanted to inquire further about why he was exonerated so that the jury would understand that MPD found that Stewart properly exercised his judgment, but the government objected. The court sustained the objection, ruling that the reasons for the exoneration were inadmissible hearsay.

The prosecutor on redirect again brought up the MPD investigation. Stewart acknowledged that an adverse finding would have subjected him to serious consequences, and agreed that when the investigator interviewed him, he was trying to establish that “no crime had occurred.” The prosecutor then asked Stewart whether “it was based on what you told the investigator that you were exonerated,” to which the defense objected. The trial court sustained the objection before Stewart answered.

After a brief recess, defense counsel complained that the “prosecutor’s unanswered question inaccurately implied that Stewart was cleared in the MPD investigation only because of his own self-serving statements.” The trial court agreed that the question may have left that impression. The prosecutor suggested that the court strike the question, but defense counsel argued that would not cure the prejudice and proposed a stipulation listing what the investigation involved. The prosecutor did not like that idea, and proposed that Stewart be recalled to clarify what the investigation included beyond his statement. The court agreed with this solution, and allowed the government to recall Stewart to ask “whether there were other components to the MPD investigation besides his own interview.” Stewart confirmed that there were.

Later in the trial, the defense called MPD Lieutenant John Haines—the officer who investigated Stewart’s conduct. The government objected and the court asked the defense for a proffer of his testimony. Counsel responded that Haines would testify about what things he considered during the investigation without going into what anyone said, and would testify about the conclusion he reached. The government disputed the relevance and admissibility of the testimony, arguing that Stewart himself corrected any misimpression that the investigation considered only his account of events. The trial court agreed with the government and refused Haines’s testimony.

At the very end of the trial, the prosecutor asserted in her rebuttal closing argument that Officer Stewart “didn’t do his job” that night despite the fact that he was exonerated of any wrongdoing.

Issue 1: Did the trial court abuse its discretion by excluding Lieutenant Haines’s testimony?

Holding 1: No. The DCCA reasoned that Lieutenant Haines’s investigation of Officer Stewart was relevant and admissible for one purpose: “to show the existence of a motive for Stewart to deny that Patterson told him appellant had a gun.” Because of this, only the fact that an investigation was pursued was probative of Stewart’s motive; not what evidence was considered during the investigation, how thoroughly it was conducted, or the conclusions that were reached.

The DCCA went on to state that Haines’ testimony would not have been appropriate under the curative admissibility doctrine “to allay prejudice to appellant’s defense from the prosecutor’s implication that Stewart’s exoneration was based solely on his own statement.” The Court concluded that the “posited implication of the prosecutor’s question was not unfairly prejudicial, and in any event, Haines’ testimony was not required to correct it.”

The DCCA noted that the trial court “after careful and thoughtful consideration of proposed alternatives,” “settled on a suitable evidentiary cure: having the government recall Stewart to the witness stand” to testify that there were “other components” to the MPD investigation. According to the DCCA, it “was entirely reasonable for the court to conclude that any possible relevance of Haines’ proffered testimony was substantially outweighed by the potential for prejudice and misleading the jury . . . because it would have exacerbated the risk that the jury would treat Haines’ exoneration of Stewart as a reason to credit Stewart and find that Patterson did not tell him appellant brandished a gun.”

In sum, the DCCA concluded that the trial court correctly exercised its discretion by excluding the proffered testimony of Lieutenant Haines.

Issue 2: Did the trial court plainly err by permitting the prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his job?”

Holding 2: No. The DCCA considered this argument “unobjectionable because it was a fair comment on Stewart’s failure to investigate appellant’s encounter with Patterson and his possible testimonial bias resulting from the MPD’s investigation of that failure.”

Of Note: Judge Beckwith wrote a separate opinion concurring in part and concurring in the judgment. Judge Beckwith agreed that the trial court did not abuse its discretion by excluding Lieutenant Haines’s proffered testimony. Judge Beckwith took issue with, however, the panel’s discussion of the curative admissibility doctrine and the notion that the trial court would have abused its discretion by admitting the testimony under that doctrine. As Judge Beckwith put it, “The essential problem with the court’s analysis on this point is that it fails to fully account for the prejudice to Mr. Furr resulting from the prosecutor’s questions about the investigation into Officer Stewart’s misconduct.” Judge Beckwith explained that the jury may have concluded from the line of questioning that Officer Stewart “acquired evidenced that Mr. Furr had pointed a gun at Mr. Patterson yet had failed to act.” Given this possibility, Judge Beckwith opined that “the trial court could have admitted the testimony under the curative-admissibility doctrine to remedy the misimpression created by the government’s question . . . and to mitigate whatever remaining unfair prejudice had resulted from the government’s initial questioning about the investigation.”

Judge Beckwith also disagreed with the majority’s conclusion that the prosecutor’s rebuttal comment that Officer Stewart “didn’t do his job” was “unobjectionable” given that MPD exonerated Officer Stewart. Understanding this fact, Judge Beckwith opined that the trial court would have been within its discretion to sustain an objection to the argument. DH

Read full opinion here

Firearms Examiner May Not Testify That Bullet Was Fired From a Particular Gun With Absolute Certainty, Plus Some Other Errors, But No Harm

Eric Gardner v. United States (decided June 23, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Reid. Opinion by Judge Reid. Benjamin Brooks for Mr. Gardner. Trial judge: Robert I. Richter

Facts: A taxi driver was shot and killed.  Police canvassing the area went to a nearby motel, and received a report that a man, who turned out to be Mr. Gardner, had just recently returned to room 114.  Officers standing outside the room heard a male voice saying he "need[ed] to get this stuff off of me, I'm very amped up right now," a shower running, and what one officer claimed was the distinctive sound of a gun being racked. Another officer outside the motel saw Mr. Gardner climb out of a window.  When the officer approached, Mr. Gardner dropped his jacket and a black gun, and he ran. The jacket had a blood stain, and DNA analysis could not exclude the taxi driver as one of two different contributors of the DNA.   Police later found, in an alley where a witness had seen a man running from the taxi driver's cab, a silver and black gun.  A witness claimed Mr. Gardner had shown her a silver and black gun shortly before the shooting.  A firearms examiner testified that the silver and black gun found in the alley was the gun that fired the fatal shot. A jailhouse informant testified that Mr. Gardner had admitted that he tried to rob the taxi driver and shot him when he refused to give up his money.  

Mr. Gardner testified in his defense that he had been a passenger in the taxi and was about to pay his fare when a third person with a gun attempted a robbery of the taxi.  Mr. Gardner struggled with the robber, and the driver accelerated the car, and then a shot rang out.  The robber ran off, and the taxi continued driving some distance before it crashed.  Mr. Gardner then ran to the motel, admitting that he had gone through the alley in which the silver and black gun was found.

Issue 1:  May a ballistics expert testify that a bullet was fired from a specific gun with 100% certainty?

Holding 1: No.  The Court adopted Judge Easterly's position in her concurring opinion in Williams v. United States, 130 A.3d 343 (D.C. 2016), which we blogged about here, and held that "a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, that based on ballistics pattern comparison matching a fatal shot was fired from one firearm, to the exclusion of all other firearms."  The Court did not preclude firearms examiners from offering an opinion that a bullet or casing came from a gun, but they cannot opine that it did with absolute certainty.  The Court also expressed "doubts as to whether trial judges in this jurisdiction should permit toolmark experts to state their opinions 'with a reasonable degree of certainty.'"

However, the Court held the error was harmless, calling the remaining evidence "strong and compelling."

Issue 2:  Did the court err in allowing a government DNA expert to testify that DNA from the silver gun matched Mr. Gardner's DNA at only two of the thirteen loci that are typically analyzed?

Holding 2:  No.  Given the low bar for evidence to be relevant, the match at only two loci was relevant even if it was not uncommon for different people to match at those locations.  The evidence was also not more prejudicial than probative, given the analyst's testimony that there was insufficient DNA to obtain a profile, and it was common for different people to match at a single locus.

Issue 3:  Did the court err in preventing Mr. Gardner from testifying about his knowledge that the jailhouse informant had a reputation as a "snitch," allowing the defense to argue that Mr. Gardner would not have confessed to a known snitch?

Holding 3:  Assuming this was error, it was harmless.  The informant had admitted during cross-examination that he was a known snitch, and his credibility was otherwise substantially impeached.  Mr. Gardner's testimony that he know of the informant's reputation "would have been, at most, a small addition to the impeachment of [the witness], and not a significant contribution to enhancing Mr. Gardner’s own credibility."

Issue 4:  Did the court err in refusing to give a "plea agreement" instruction, cautioning the jury that testimony of a witness who has entered into a plea agreement should be considered with caution?

Holding 4:  No, because the informant did not have a plea agreement with the government.

Issue 5:  Did the court err in restricting the defense's cross-examination of a police officer about two investigations targeting the officer, one for harassment and the other for excessive force?

Holding 5:  Assuming this was error, it was harmless.  The officer was effectively cross-examined, and his testimony was a small piece of the government's evidence.

Issue 6:  Were Mr. Gardner's post-arrest statements to police voluntary?

Holding 6:  Yes.  Although he had been held for some time, he was sleeping for the first ten hours.  Although he was not immediately given food when he asked for it, he was not told that food be withheld unless he gave a statement.  Mr. Gardner initiated his conversation with police, and he signed a waiver form.  At one point during his statement when Mr. Gardner was shivering, officers "turned the vent off."  Mr. Gardner's will was not overborne in such a way as to render his statements the product of coercion.

Issue 7:  Did trial counsel provide ineffective assistance by failing to cross-examine the firearms examiner using a specific report; failing to object to post-arrest police statements to Mr. Gardner about multiple witnesses to the shooting, and failing proffer a basis for the admissibility of Mr. Gardner's testimony about his knowledge of the jailhouse informant's reputation as a snitch?

Holding 8:  Assuming trial counsel's performance was deficient, there was no prejudice.

Of Note:

• Although the opinion's holding bars only testimony that an expert is absolutely certain a bullet or casing came from a particular gun,the opinion leaves the door open to further limitations on the testimony of firearms examiners.  Defense attorneys should continue to fight for limits on this testimony, using the reports and articles cited in the opinion as ammunition.

• The court's harm analysis leaves much to be desired.  The defense presented a plausible account of the shooting that the jury might have credited, particularly given the government's apparent inability to explain why Mr. Gardner's jacket had blood from two different (and unknown) individuals, and the failure of police to preserve a bloodstain on the right rear passenger window -- evidence which could have corroborated Mr. Gardner's account of a third person's presence.  The fact that the apparent murder weapon was found on Mr. Gardner's flight path and the purported confession he made to the jailhouse informant were thus critical pieces of evidence.  Given that the errors went to those aspects of the government's evidence, the finding of harmlessness from the cumulative prejudice is dubious.  DG

Read full opinion here.  

Silky Gates Did It! Defendant should have been allowed to point the finger at someone else.

Terry Johnson v. United States (Decided April 14, 2016)

Players: Judges Glickman and Thompson, and Senior Judge Farrell. Opinion by Judge Glickman. PDS for Mr. Johnson. Trial Judge: Herbert B. Dixon, Jr..

Facts: A masked man shot and killed Andre Wiggins in broad daylight. Nobody could identify the shooter. The government’s case against Terry Johnson turned on the “pre-existing enmity” between him and Wiggins. Indeed, the government argued Mr. Johnson was the “only” person who had a motive to kill Wiggins. As it turns out, that was not true. The defense proffered two other people’s beef with Wiggins—Silky Gates and Quannine Payne. Wiggins had pistol-whipped and robbed Mr. Gates days before the murder—a fact the government knew about but failed to disclose to the defense until five weeks before trial. And Wiggins robbed Mr. Payne of his motorbike shortly before the murder. The trial court precluded the defense from introducing the third-party perpetrator (aka Winfield) evidence, deeming the proffers “too speculative.”

The defense thereafter asked the trial court to admit the Silky Gates Winfield evidence as a Brady sanction for the government’s belated disclosure of the evidence. The court refused to impose sanctions finding it would be “incongruous” to allow Mr. Johnson to present a Winfield defense for this Brady violation after it had already decided the defense’s proffer was insufficient to present that defense. The court also denied sanctions because Mr. Johnson already knew about Gates’ motive to kill Wiggins independent of the government and thus it was not prejudiced by the belated disclosure.

Issue 1: Was it error for the trial court to exclude the Winfield evidence?

Holding 1: Yes. A defendant has a constitutional right to present Winfield evidence. For it to be admissible, the evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” When a Winfield defense is based on a third party’s motive, the defense must also proffer the person had the “practical opportunity” to commit the crime, meaning the third party had at least “inferential knowledge” of the complainant’s whereabouts. Mr. Johnson’s proffers satisfied the test for admissibility; moreover, the trial court was required to “resolve close questions of admissibility in this setting in favor of inclusion, not exclusion.”

Issue 2: Were the trial court’s reasons for not imposing Brady sanctions erroneous?

Holding 2: Yes. The Court found that the Silky Gates evidence was admissible and material and thus the government was required to disclose the evidence under Brady. That Mr. Johnson learned of Gates from another source “does not get the government off the hook for its tardiness.”

Notes: The trial court also precluded the defense from cross-examining a jailhouse snitch, who was attempting to curry favor from the government based on his testimony in this case, about the lies he had told police during the investigation of his own murder case. The DCCA held that preclusion of this line of cross was error because these past falsifications were relevant and admissible to show testimonial bias because they demonstrated the snitch’s willingness to lie to avoid punishment.  DH

Read full opinion here.