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.

Multiple Shootings, Mutliple Defendants, Multiple Issues Leads to Affirmance in South Capitol Street Case

Bost et al. v. United States (decided February 15, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Kristina A. Crooks for Mr. Bost. E. Benton Keatley, Jeffrey T. Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald for Mr. Best. Thomas T. Heslep for Mr. Williams. PDS for Mr. S. Carter. R. Trent McCotter, Jessie K. Liu, and Michael W. Khoo for Mr. O. Carter. Trial Judge: Ronna Lee Beck.

Facts: The Carter brothers (Sanquan and Orlando), along with Best, shot and killed Jordan Howe on Alabama Avenue in retaliation for the suspected theft of Sanquan’s bracelet. Sanquan was arrested shortly after that shooting and played no role in subsequent events. The following day, a group of Howe’s associates shot and wounded Orlando. In retaliation for that, Bost, Orlando, Best, and Williams planned to attack Howe’s funeral. The group first planned to rob Tavon Nelson for his gun. Best and Bost carried out the robbery, which turned into a shootout that left Nelson dead. The group then did a drive-by shooting of a house on South Capitol Street where Howe’s friends had gathered after the funeral, leaving three dead and several wounded.

Issue 1: Should Sanquan’s case have been tried separately from the others on the ground that he was charged in connection with only the Alabama Avenue shooting? Same as to Bost, who was charged in only the South Capitol Street shooting?

Holding 1: No. Although the issue was not “an easy one,” the charges from the Alabama Avenue and South Capitol Street shootings were properly joined under Super. Ct. Crim. R. 8(b) as part of “the same series of acts or transactions.” Although there was an intervening event — the shooting of Orlando — between the Alabama Avenue and South Capitol Street shootings, there was still a causal connection between them, which is sufficient to make the latter a “sequel” to the first crime. The DCCA rejected the government’s alternative argument that the two shootings were part of a “common scheme or plan.”

Severance was not required to prevent prejudice from the presentation of evidence as to the shootings in which Sanquan and Bost were not involved. Because both were “active participants in conspiracies to commit first-degree murder,” their complicity in the overall venture is not “de minimis.” The evidence was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” And “the trial court made efforts to ensure that the jury was not confused about the charges,” by reminding the jury that Sanquan and Bost were not charged with certain offenses, instructing the jury that certain statements could not be used against one or the other, and giving a “strongly worded curative instruction,” in response to the prosecutor’s rebuttal argument, that Sanquan had no responsibility for the South Capitol Street shooting.

Issue 2: Was there a risk of a coerced verdict because a juror reported “pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree”?

Holding 2: No. The potential of coercion from the note was low, because the juror did not report pressure from the entire group, or that they disagreed on all counts. The identity of the juror was not revealed in open court, “making it less likely that the juror felt undue pressure from the rest of the jury.” The exact division of the jury was (theoretically) unknown. No verdict had been announced, and the court did not give an anti-deadlock instruction. The note did not report any improper behavior during deliberations, only that they were “spirited.” Because the coercive potential was low, the trial court appropriately gave a “neutral, even ‘bland,’ instruction” in response, asking them to resume deliberations and remain civil. An anti-deadlock instruction would have been premature “as there was no indication that the jury was deadlocked at the time of the note.”

Issue 3: Was Best’s trial counsel ineffective for failing to move to suppress Best’s videotaped interrogation on Miranda grounds?

Holding 3: No. Best’s attorney reasonably believed that the factual allegations supporting the motion suppress “were not true.” In addition, the motion to suppress would have been futile because the incriminating portions of the video came in response to questioning by Best’s mother, not police.

Issue 4: Was a mistrial required due to the prosecutor’s conduct during opening — referencing the “Equal Justice Under Law” inscription on the Supreme Court building; asserting that the government’s role was to “fairly enforc[e] the criminal laws”; and decrying “vigilante justice” — and closing — characterizing certain government witnesses as “heroes,” one of whom was doing “God’s work”; asserting that the jury should be “proud” of the police investigation; presenting a blown-up photo of a murder victim that elicited an emotional response in the courtroom; and pleading that the victims’ families were asking for “justice” rather than vengeance?

Holding 4: No. The prosecutor’s comments during opening statement “did not appear to cross the line of permissible opening statements, as the comments were not argumentative.” Even if they were improper, they were “not so grave as to warrant a mistrial.” The trial court’s curative instruction after the openings to base their verdicts on evidence rather than emotion was an appropriate response.

The prosecutor’s statements in closing that the jury should be proud of the police and characterizing certain witnesses as heroes were “not improper when considered in context.” These statements did not “urge the jurors to place themselves ‘in the position of the victim,’ nor did the statements rise to the level of an appeal ‘to the jury’s emotions.’” The prosecutor’s comment about the families asking for justice rather than vengeance “may have appealed to the sympathy of the jurors,” but did not rise to the level of improperly “asking the jurors to ‘send a message to the defendant[s]’ or to the community with their verdicts.” The use of the photograph was not improper because it was admitted into evidence.

Issue 5: Should the trial court have instructed the jury on withdrawal from a conspiracy because Williams left the vehicle before the South Capitol Street shooting, saying, “Y’all about to go commence. Y’all can let me out right here”?

Holding 5: No. To withdraw from a conspiracy, one must act to “disavow” or “defeat the purpose” of the conspiracy. Simply leaving the scene is insufficient to establish withdrawal.

Of Note:

• The DCCA rejected an argument based on a malfunctioning courtroom “husher,” reasoning that there was no evidence any of the jurors actually overheard any of the bench conferences.

• The DCCA also rejected an argument for a change of venue due to adverse pretrial publicity because a change of venue is generally unavailable in Superior Court, and the jurors empanelled had not been influenced by media reports on the case. 

• The DCCA held that Best’s non-verbal “confession” to his mother, and a verbal confession to a friend, were properly admitted as statements against penal interest. 

• The DCCA rejected a number of other issues summarily. Although the court “question[ed] whether the government needed to present testimony from four mothers of the victims,” it ruled that this did not show that the jury decided the case based on emotion. The court held the trial judge did not improperly curtail cross-examination of a cooperating witness. And the court held that the trial court did not err in precluding evidence that the cooperator fired a gun in 2007. DG

Read the full opinion here.

The DCCA’s Latest Conspiracy Theory: Liability Imposed Based on Unsolicited, Unheeded Advice about How to Commit the Crime

In re T.M. (decided March 16, 2017)

Players: Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Chief Judge Washington.  Partial dissent by Judge Beckwith.  PDS for T.M.  Trial Judge: Florence Pan.

Facts: T.M. was charged and tried on a 22-count indictment in relation to the August 2013 shooting of seventeen-year-old J.W.  The evidence showed that T.M. and a group of more than ten approached J.W. and four others, who were smoking marijuana in an alley behind a high school after a football game.  Three from J.W.’s group identified T.M. as a fellow student who had been in a physical altercation with J.W. the year before.  When J.W.’s group started walking out of the alley toward a nearby Safeway, T.M.’s group followed.  One person from J.W.’s group testified that T.M. was pointing a gun in their direction but slightly downward, toward the ground.  This witness and one other testified that they heard an unidentified male state, “don’t do it in the light” or “if you’re going to shoot it, get out of the light.”  As J.W.’s group crossed an intersection, they heard a single gunshot and saw J.W. fall.  A bullet penetrated both of her legs.  An ambulance transported J.W. to a hospital where she was treated for a broken right leg.  Following a bench trial, the trial court adjudicated T.M. delinquent for several offenses, including carrying a pistol in violation of now-repealed D.C. Code § 22-4504(a) (2013) and conspiracy to commit murder or assault with a dangerous weapon.

Issue 1: Did the evidence presented prove beyond a reasonable doubt that T.M. conspired to commit murder or assault with a dangerous weapon?

Holding 1: Yes.  The evidence showed that T.M. arrived in an alley with a large group, waited for J.W. and her friends, and promptly followed them.  The evidence also showed that T.M. was openly carrying a weapon when she was seen among the group of teenagers and at least one – the unidentified male – followed and advised her on how to carry out the shooting.  His statement (“don't do it in the light”) could reasonably indicate that he had knowledge of T.M.’s “plan to shoot” and intended to help T.M. avoid detection.

Judge Beckwith writes in dissent that, contrary to the trial court’s reasoning, it is impossible to conclude beyond reasonable doubt, based on the fact that an unidentified male told T.M. to not “do it in the light,” that T.M. engaged in “some prior discussion” during which they formed an agreement to commit the shooting.  “The evidence established at most that another person who was expecting T.M. to shoot a gun gave her advice about how to avoid detection.”

Issue 2: Did the trial court plainly err in adjudicating T.M. delinquent for carrying a pistol under D.C. Code § 22-4504(a), given that statute’s purported facial unconstitutionality under District of Columbia v. Heller, 554 U.S. 570 (2008)?

Holding 2: No.  As of the appeal in this matter, this Court had not interpreted Heller to extend Second Amendment protection to carrying a pistol outside the home or place of business.  While Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014) did interpret Heller that way, that decision is at best persuasive and its weight has been significantly undermined by the subsequent en banc reversal of Peruta v. County of San Diego, on which it chiefly relied.  742 F.3d 1144 (9th Cir. 2014), rev'd en banc, 824 F.3d 919 (9th Cir. 2016).  Unlike the statute at issue in Conley v. United States, 79 A.3d 270 (D.C. 2013), former § 22-4504(a) does not offend any basic principle of due process or comparably well-settled Second Amendment principle.

Read full opinion here.

Parental Discretion Advised: The DCCA Grapples with the Admissibility of Rap Lyrics and Other Issues in 9-Month, 6-Person Conspiracy Trial

 Note: This is our second installment on the 232-page decision that the DCCA issued in this case last November.  The first installment was posted on March 1.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015). 

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2004 murder of Terrence Jones and assault of Richard Queen, the 2006 murder of James Taylor and assault of Bernard Mackey, and obstructions of justice related to the Jones/Queen and Taylor/Mackey incidents. 

The issues analyzed in this post are numbered according to the section numbers used in the opinion.

Issues VII(A): Whether the evidence was sufficient to make out a single conspiracy involving all six appellants.  Whether the object of the conspiracy was lawfully constrained and defined in the indictment. 

Holding VII(A): Yes and yes. Because of the way the indictment was worded, the Court considers whether it established each appellant’s knowing participation in an agreement either to obstruct justice or assault or kill those whose interests were contrary to the defendants and their conspirators.  Testimony established that membership in the Crew was “a way of life” that implied certain reciprocal rights and responsibilities, including the need to retaliate against “snitches” and rival drug dealers.  (pp. 22-25).  Appellants’ participation in drug dealing and the violent overt acts in the indictment established their knowing participation in the conspiracy.  (pp. 25-34).  A conspiracy’s purpose should not be defined in too narrow terms.  The conspiracy count adequately apprised appellants of the scope and timing of the alleged conspiracy and allowed them to prepare a defense.  (pp. 34-35).

Issue VIII(E): Whether the trial court erred in admitting violent rap lyrics that referenced murder and drug-dealing, apparently authored by Mr. Rushing, Mr. Tann, and a third, unindicted person (Michael Smith), along with a social media profile authored by Mr. Beaver. 

Holding VIII(E):  No.  First, the rap lyrics bore sufficient indicia of authenticity in that they were primarily in the first person and purportedly autobiographical.  (pp. 127-29).

Second, testimony showed that Michael Smith was a member of the predicate conspiracy at all times relevant to the hearsay exception for co-conspirator statements.  (pp. 129-30).

Third, the statements at issue furthered the conspiracy by promoting the stature of the Crew within the community and spreading its messages of violence and intolerance toward would-be rivals and informants.  (pp. 130-32).

Fourth, as a matter of first impression in the DCCA, the trial court did not abuse its discretion in determining that the prejudicial effect of this content did not substantially outweigh its probative value, given the “specificity with which the lyrics describe the facts surrounding the offense(s) charged,” how hotly contested the conspiracy charge was, and the fact the trial court culled the government’s evidence for unfairly prejudicial content.  (pp. 133-35).

Issue VIII(F):  Where the jury had already found Mr. Harris and Mr. Arnette guilty of conspiring with Mr. Tann to, among other things, murder, but had not yet found Mr. Harris and Mr. Arnette guilty on separate aiding-and-abetting charges in the Taylor/Mackey and Jones/Queen incidents—

Whether the trial court erred in denying Mr. Harris and Mr. Arnette’s motion for mistrial or Mr. Harris’s motion to voir dire the jury, when Mr. Tann stood up and stated,

I don’t see how I can get found guilty and what type of court is this?  I wasn’t even there. . . . [N]owhere near . . . I get found guilty and I’m innocent.  God going to challenge y’all for this.  I’ll see y’all in heaven. . . .  I’m innocent.  How the fuck I get found guilty? . . .  That’s fucking—that’s crazy[,]

(pp. 135-39).

Holding VIII(F):  No.  Even taking as true the alleged juror statements that Mr. Tann had made a “death threat” to them and had similarly threatened witnesses throughout the trial, Mr. Tann’s statements did not expressly implicate his codefendants, the court issued a sua sponte curative instruction after his outburst, and no juror contacted the court with any concern following the outburst.  The trial court properly considered the risk that further inquiry would magnify a non-issue.  The cases cited by Mr. Harris, where the court has called for voir dire on juror bias, have all turned on facts outside the court’s direct knowledge, as opposed to Mr. Tann’s outburst (and the jury’s reaction), which happened in open court.  (pp. 141-42).

Of Note:
The outcomes of the issues summarized above turn on the particular facts of this case and therefore, practitioners grappling with similar issues in their own cases will want to study the opinion carefully.  
 

Such caution in interpreting and applying the Court’s opinion applies with great force to the issue of whether the trial court abused its discretion in determining that the prejudicial effect of admitting the evidence of violent rap lyrics did not substantially outweigh their probative value.  

In the Court’s own words—

While there is no abuse of discretion on this record, we could easily envision a case where lyrics, poetry, or other statements in a form traditionally understood to be artistic expression were not sufficiently specific to the charged crime so as to have such important probative value.  Evidence that doubles as a type of art will often be a confusing mixture of truth and fabrication.  Therefore, trial courts must very carefully scrutinize such materials and statements for unfair prejudice.  (p. 135 n.6).  WC

Read full opinion here.