New Evidence or Argument Not Necessary for Motion for Reconsideration

Bernal v. United States (decided June 29, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Trial Judge: Michael Ryan. PDS for Mr. Bernal.

Facts: Prior to trial, appellant moved to suppress a confession and buccal swab obtained while in police custody. Following officer testimony about the manner in which the confession and swab were obtained, the government requested a thirty-day continuance to obtain a second buccal swab and decide whether to call an expert to respond to the expert that appellant had disclosed three days prior. The trial court denied the government’s motion for continuance.

The government then filed a motion to reconsider the continuance ruling based on the same grounds as before. They also renewed their request for a second swab. The court granted a seven-day continuance and authorized the second swab, but stated the continuance was based solely on the government's need for time to evaluate the defendant's expert notice.

During the continuance, the government procured a second buccal swab and matched it to a sample of suspect DNA. Appellant was convicted and appealed the court’s grant of a motion for reconsideration.

Issue: Does the Superior Court have the authority to grant a reconsideration for a thirty-day continuance when the government did not offer any new information to justify reconsideration?

Holding: Yes. Trial courts have great deference over issues pertaining to case management, and can reconsider previously decided issues as long as the decision is “consonant with justice” and interlocutory. Trial courts may rely on their inherent powers to reconsider an interlocutory ruling, as long as there are no superseding procedural rules or constitutional restraints. Here, since there were no such constraints on reconsideration, the trial court was free to grant reconsideration that was “consonant with justice.” Reconsideration was “consonant with justice” because the decision to grant a seven-day continuance for late expert notice showed “a thoughtful balancing of competing considerations.”

Of Note:
The Court rejected appellant's argument that a motion for reconsideration can only be granted when the party seeking reconsideration presents: 1) newly discovered evidence, 2) an intervening change in the law, or 3) the original decision was based on a manifest error of law or was clearly unjust.

In footnote 11, the Court recognized that Super. Ct. Crim. R. 48(a)(2) requires the trial court’s approval before the government can dismiss charges without prejudice. And, that it would be erroneous for the trial court not to recognize it had the discretion to deny the government’s dismissal of an indictment.

Read the full opinion here.

Don’t Leave Your DNA on a Gun: Constructive Possession of Firearms and Other Issues

Dorsey v. United States (decided February 23, 2017)

The Players: Associate Judges Blackburne-Rigsby, Thompson, and McLeese. Opinion by Associate Judge Thompson. Cecily E. Baskir for Mr. Dorsey. Trial Judge: Anita Josey-Herring.

Facts: As officers, wearing their “POLICE” vests, approached an apartment building to execute a search warrant, they observed Dorsey and two women standing on the balcony. Dorsey “reacted” by entering the apartment. Officers ultimately entered the apartment by using a battering ram after knocking on the door and announcing their presence. Once inside, an officer saw Dorsey exiting the kitchen, the same room where a gun was recovered in a cabinet. The government swabbed the gun for DNA, which yielded a partial DNA profile from a single male contributor. Each of the 8 alleles detected was consistent with Dorsey’s DNA profile. Dorsey was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1: Did the government present sufficient evidence that Dorsey constructively possessed the gun and ammunition?

Holding 1: Yes. First, although there was no evidence that Dorsey lived in the apartment, he was present when the police entered and was the only person seen exiting and in close proximity to the kitchen where the gun was found. Second, Dorsey immediately left the balcony as police approached. Third, the kitchen had “only one way in and one way out,” so that Dorsey did not enter the kitchen just to get to another area of the apartment. Lastly and “[m]ost important[ly],” the partial DNA profile recovered from the gun matched with Dorsey’s DNA profile. This evidence was sufficient to establish Dorsey’s knowledge of the gun’s location and his ability and intent to exercise dominion and control of the gun.

Background 2: On the morning before jury selection, the prosecutor handed defense counsel a handwritten note reading, “Officer Campanale Wesby v. DC – Case No. 12-7127, Sept. 2, 2014.” The Wesby case related to a federal D.C. Circuit decision affirming a federal D.C. District Court summary judgment ruling and subsequent jury verdict in a §1983/false arrest case where Officer Campanale was found liable for unlawfully arresting twenty-one individuals for unlawful entry. After reading the opinion, defense counsel moved to dismiss the case due to the government’s late disclosure of the Wesby case.

The following day, defense counsel moved for a continuance in order to investigate the facts of the Wesby case. The trial court denied the motion, citing an existing ability to cross-examine the officer, including on corruption bias grounds, without needing additional investigation, and a perceived “delay tactic” by Dorsey, who had previously fired two other lawyers.

The government did not call Officer Campanalle until five days after the original disclosure. While the officer acknowledged that he arrested individuals involved in the Wesby case, he denied that he was found liable or that he “lost on appeal.” The parties eventually agreed upon the trial court taking judicial notice of the Officer Campanalle’s unlawful arrests.

Issue 2: Did the trial court’s refusal to grant a continuance violate Dorsey’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), when on the day before jury selection began, the government dropped a “cryptic” disclosure—the name and number of a case involving one of the testifying police officers—that revealed the unlawful arrests of twenty-one individuals for unlawful entry?

Holding 2: The Court did not find a Brady violation or that Dorsey was precluded from effectively using the disclosures in preparation of his defense. In support of its holding, the Court noted (1) Dorsey’s willingness to go forward with trial after having fully reviewed the Wesby opinion, (2) the five days between the disclosure and the officer’s testimony, and (3) defense counsel’s ability to impeach the officer during the trial. Interestingly, the Court also took into account defense counsel’s post-trial failure to “contact[] the attorneys in Wesby to learn of any additional impeaching material” and the failure to present other new information about the Wesby matter that would have “made a difference to the outcome of [Dorsey’s] case.”

Background 3: After the government closed its case, defense counsel notified the trial court that Dorsey needed to secure his own defense DNA expert to testify about “the preservation and collection” of DNA and not to “actual tests.” This came on the heels of an officer’s testimony that he placed the gun on the kitchen counter before putting it into an evidence bag. Since the government’s DNA expert had already testified, Dorsey would need to procure his own expert to “clear up some DNA matters.”

The trial court admonished defense counsel for not providing Rule 16 expert notice, but nonetheless, said that she would sign a voucher if Dorsey could not afford the expert. Calling the expert, however, would be conditioned on Dorsey’s ability to have the expert prepared to testify by the following morning. The next day, defense counsel told the trial court that the expert was unavailable for the day and could only testify the following day. The trial court denied the request to delay the trial.

Issue 3: Did the trial court abuse its discretion by denying Dorsey a mid-trial continuance to secure the presence of a defense DNA expert to rebut the government’s DNA evidence?

Holding 3: No. The trial court made sure that the reason for not having previously secured the expert was not financial; the court was legitimately concerned about defense “delay tactics”; the defense had no other witnesses and would have wasted an entire day; the government would have had to consult with its own expert again; and, defense counsel did not give the trial court a reason that Dorsey would be prejudiced. Assuming arguendo that the trial court erred, the error was harmless.

Background 4: The trial court gave Dorsey a three-year mandatory minimum sentence for being convicted of unlawful possession of a firearm after a prior conviction for a crime of violence. Dorsey argued that the trial court’s determination that his 1999 Maryland conviction for first-degree assault was a “crime of violence” was a matter for the jury. Alternatively, Dorsey argued that the trial court committed plain error by concluding that a Maryland first-degree assault was equivalent to a D.C. aggravated assault conviction to qualify for the three-year sentence.

Issue 4: Did the trial court commit constitutional error in not submitting Dorsey’s prior Maryland conviction to the jury to determine whether he was subject to the three-year mandatory minimum, and if no constitutional violation occurred, did the trial court commit plain error by determining that the Maryland first-degree assault was the equivalent of the D.C. aggravated assault?

Holding 4: No and no. The Court found that under Apprendi v. United States, 530 U.S. 466 (2000), the fact of a prior conviction does not need to be submitted to the jury to be proved beyond a reasonable doubt. In this case, because the increase in Dorsey’s penalty resulted from a “legal analysis concluding that the elements of a prior predicate crime match[ed] those of the type of offense that the penalty statute establishe[d] as the trigger for the enhanced penalty, the court’s determination [was] not the type of factual finding” that would have necessitated submission to the jury. The Court determined that “as a matter of law,” the elements of first-degree assault in Maryland are subsumed within the scope of serious bodily injury in D.C.’s aggravated assault.  JW

Read full opinion here.

No residue (or other additional evidence), no crime for possession of drug paraphernalia.

DeAndre Brooks v. United States (decided January 28, 2016).

Players: Associate Judges Blackburne-Rigsby and McLeese, Senior Judge Farrell. Opinion by Judge McLeese.  Trial Judge: Truman A. Morrison, III. Jamison Koehler for Mr. Brooks.

Facts: United States Park Police were searching for robbery suspects and encountered Mr. Brooks and three other men. When police asked them to stop, Mr. Brooks began to walk away, and after an officer touched Mr. Brooks’s shoulder, Mr. Brooks “swatted” away the officer’s hand and struck the officer’s forearm. Officers attempted to arrest Mr. Brooks, but he “flailed about, kicking and trying to break free.” Eventually, police placed him under arrest. During the search incident to arrest, an officer with twelve years experience investigating drug offenses found in Mr. Brooks’s pants pocket “a metal grinder with a picture of Bob Marley on the front that is commonly used for grinding up marijuana.” At trial, another officer who had been involved in over 500 drug operations, testified that he had recovered grinders numerous times, that grinders are commonly used to grind up marijuana by people who smoke marijuana, and that there typically is green plant material in the grinders police find on people. Police also seized a black ski mask and four cell phones from Mr. Brooks.

Following a bench trial, the trial court found Mr. Brooks guilty of both possession of drug paraphernalia and assault on a police officer. The trial court explained: “I find that although there is not a rich amount of detail about Bob Marley grinders, the last witness has told us that he has seized them on many occasions, that they are commonly used to grind marijuana and I think that is enough to infer an intent to use in the absence of any other explanation emerging from the evidence that would cast a doubt on that[.]”

Issue 1: Was the evidence sufficient to convict Mr. Brooks of possession of drug paraphernalia?

Holding: No. D.C. Code § 48-1103(a)(1) makes it “unlawful for any person to use, or to possess with intent to use, drug paraphernalia” to “process,” “prepare,” “contain,” “or otherwise introduce into the human body a controlled dangerous substance.” Despite viewing the evidence in the light most favorable to the government and that a trial court’s factual findings after a bench trial will not be reversed unless “plainly wrong or without evidence to support [them],” D.C. Code §17-305(a), the Court of Appeals determined that there was insufficient evidence to show that Mr. Brooks intended to use the grinder in a manner prohibited by D.C. Code §48-1103(a)(1). The Court concluded that “there was no evidence that anyone saw Mr. Brooks use the grinder in any way,” “that Mr. Brooks made any statements suggesting an intent to use the grinder for drug-related purposes,” or “that Mr. Brooks possessed or used drugs, either at the time of the offense or at any previous time.” 

The government argued that his intent to use the grinder could be inferred from three pieces of evidence: “(1) the grinder bore the likeness of Bob Marley; (2) an experienced narcotics officer testified that people who smoke marijuana commonly use grinders to grind up marijuana, and (3) another experienced narcotics officer testified that he had recovered grinders numerous times.” The Court disagreed with all three arguments. First, the Court reasoned that even if it is commonly known that Bob Marley is “virtually synonymous” with marijuana, at trial the United States did not introduce any such evidence and did not ask the trial court to take judicial notice of such an association. Ultimately, the Court stated that the picture of Bob Marley on the grinder served “only as an unexplained identifying characteristic, similar to color or physical description, with no independent significance.” Second, the Court stated that the evidence did support a conclusion that there is an association between grinders and marijuana, but that alone is not sufficient, as drug use can be associated with a wide array of items and there needs to be additional evidence. And third, as to the officer testifying that he had recovered grinders numerous times, the Court noted that his testimony also was that those grinders contained green plant material in them, whereas there was no suggestion in the present case that the grinder recovered from Mr. Brooks had such material in it. Lastly, the Court said that it was unaware of “any case upholding a conviction for possession of drug paraphernalia based solely on evidence that a single item possessed by the defendant is commonly used for drug-related purposes.”

Issue 2: Did the trial court err in refusing Mr. Brooks’s request for a continuance?

Holding: No. The government charged Mr. Brooks in the present case on January 16, 2014. After a status hearing in March, 2014, Mr. Brooks rejected a plea offer in this case and trial was set for June 6, 2014. In the meantime, the government charged Mr. Brooks in a number of other cases. On June 4, 2014, Mr. Brooks filed a motion to continue trial because he had “not yet received a global plea offer to resolve all matters,” that he was represented by a different attorney in one of the cases, and that it was “likely that these matters can be resolved short of trial.” That same day, the government communicated via email a global plea offer, and the trial court denied the continuance. On the day of trial, Mr. Brooks’s trial attorney orally renewed the motion to continue, and explained that the most recent plea offer was not valid, as it required Mr. Brooks to plead guilty to being a felon in possession of a firearm, but that he had not actually been charged with that offense and did not have a prior felony conviction. The trial court informed counsel that it had scheduling concerns and asked how likely it was that an agreement could be reached. Defense counsel said she would have to discuss that with Mr. Brooks. The trial court agreed to briefly pass the case, but indicated it would not grant a continuance in the absence of an assurance that a plea agreement was likely. When the parties returned after the break, defense counsel made no further representations about a plea agreement and trial began.

The Court of Appeals held that the trial court did not abuse its discretion in denying the request for a continuance. The Court explained that denial of a request based on a desire to continue plea negotiations is “different in character from the kinds of prejudice reflected in cases in which this court has reversed,” such as a request to obtain a witness whose testimony could exonerate the defendant, or a request because new counsel needed the opportunity to be prepared to rebut the government’s evidence.

In the present case, the Court determined there was no abuse of discretion in the trial court’s decision for three reasons. First, despite acknowledging the importance of plea bargaining, the Court reasoned that defense counsel “was unable to provide any concrete assurance” about “the likelihood that a global plea agreement would be reached.” Second, the Court noted that the written motion for a continuance was not filed until two days before trial, which was the last day on which such a motion can typically be filed pursuant to Super. Ct. Crim. R. 111(c). The Court stated “that defense counsel could have been more diligent in trying to work out a plea agreement before the trial date, as well as on the trial date.” And third, despite the fact the government did not oppose the request and there was no suggestion that Mr. Brooks was acting in bad faith, the Court concluded that the trial court “reasonably pointed out that trial in this case would only take a few hours and that routinely continuing such minor matters in the hope of obtaining a global plea agreement involving more serious charges could cause delay and congestion on the court’s calendar.” Ultimately, the Court believed that the trial court “reasonably balanced the relevant considerations and acted within its discretion to deny the request for a continuance.”

Of Note:

• The Court, citing a number of cases from other jurisdictions, made it clear that to convict someone of possession of drug paraphernalia, a single item by itself likely will never be sufficient. It contrasted cases where evidence was found to be insufficient when police found a single pipe, or a syringe, but nothing else, with cases where the evidence was sufficient where police found a needle and syringe and the defendant had track marks on his arm, or a syringe and aluminum bags with traces of heroin, or a scale and glass pipe near a large quantity of crack cocaine. 

• When asking for a continuance based on a desire to continue plea negotiations, the Court “assume[d], without deciding, that a defendant in some circumstances might be able to establish that a continuance to permit further plea bargaining was ‘reasonably necessary for a just determination of the cause.’” (quoting Kyles v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). The Court also cited Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012), where the Supreme Court reiterated the “‘central role plea bargaining plays in securing convictions and determining sentences.’” If you are seeking a continuance based on a desire to continue plea negotiations, try to do so as soon as practicable, and be sure to make a clear record as to exactly what the prejudice will be to your client if the court denies the request and the chances of an agreement being reached. See Daley v. United States, 739 A.2d 814, 817 (D.C. 1999) (discussing relevant factors in determining if a trial court abused its discretion in denying a request for a continuance, including “the reasons for the request,” “the prejudice resulting from its denial, the party’s diligence in seeking relief, any lack of good faith, and prejudice to the opposing party”). BM

Read full opinion here.