Complainant’s failure to correct first responder’s inconsistent ID was admissible to impeach complainant; complainant’s later ID of the defendant to a detective was NOT admissible to rehabilitate complainant.

In re C.A. (decided June 14, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ruiz. Opinion by Judge Easterly. PDS for C.A. Trial Judge: Kimberley S. Knowles.

Facts: The trial court found C.A. responsible for two counts of attempted first degree murder as well as related lesser charges. Complainants A.H. and M.L. testified that C.A. and his companion, Mike, wearing white and black clothing, respectively, confronted and followed them, before C.A. shot at them with a gun he got from the older Mike. Shell casings, video surveillance, and gunshot audio corroborated the complainants’ account that someone in white shot at them. However, the surveillance footage was too pixelated to corroborate that C.A. was the person in white. 

The case against C.A. rested heavily upon A.H. and M.L.’s testimony. Counsel for C.A. sought to impeach A.H.’s testimony with police body camera footage showing A.H.’s failure to correct one of the first officers to respond to the scene when that officer told another that “the one in black,” i.e., Mike, was the shooter.  The trial court prevented counsel from confronting A.H. with the body camera footage based on A.H.’s denial that he heard the officer’s statement, reasoning that counsel “could not prove” that A.H. heard the officer. The court further allowed the government to introduce A.H.’s later statement to a detective, identifying C.A. as the shooter. 

Issue 1: Did the trial court err by barring extrinsic evidence of A.H.’s failure to correct the police’s statements identifying “the one in black” as the shooter?

Holding 1: Yes. The trial court overstated the foundation required to impeach with extrinsic evidence. Impeachment requires only relevance and a “good faith basis” for the impeaching fact. A party may use extrinsic evidence to impeach as long as the impeachment does not concern a collateral matter. A.H.’s failure to correct the officer when he was within earshot was directly relevant to A.H.’s credibility. Since the line of questioning challenged the central issue at trial, the identity of the shooter, the evidence was not collateral. 

Issue 2: Did the trial court err in admitting A.H.’s identification of C.A. to the detective as a prior consistent statement?

Holding 2: Yes. A.H.’s identification of C.A. did not constitute a prior consistent statement because it occurred after the prior inconsistent statement at issue—A.H.’s failure to identify C.A. to the uniformed officers on the scene—and was neither a part of, nor designed to rebut, the prior inconsistent statement. A.H.’s identification to the detective was not “directed only at the particular impeachment that occurred” in the narrow sense contemplated by Worthy v. United States, 100 A.3d 1095 (D.C. 2012), because it happened after, not before, A.H. failed to identify C.A. to first responders and did not help to explain that failure.

Issue 3: Were trial court’s errors harmless under the Kotteakos standard for nonconstitutional error set out in? 

Holding 3: No. The errors in precluding the impeachment evidence and admitting the prior consistent statements are not harmless because of its influence on the trial court’s assessment of witness credibility, and the case against C.A. was solely built upon such witness identification. WC and Christine Liu, guest blogging.

Read the full opinion here.

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.

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.

DCCA En Banc: Mens Rea for Threats Requires Purpose or Knowledge that Words Will Be Construed as a Threat, Maybe Recklessness

Carrell v. United States (decided August 3, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judge Washington. Opinion for the court by Judge Easterly. Partial concurrence/dissent by Judge Thompson. Fletcher P. Thompson for Mr. Carrell. PDS as amicus. Trial Judge: Heidi M. Pasichow

Facts: As we previously summarized in noting the Division opinion:

The complainant testified that Mr. Carrell said to her, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them. He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window. The trial court credited the complainant’s testimony and found Carrell guilty. To find Carrell guilty, the judge said the law required Carrell to have “an intent to utter the words which constituted a threat.” She found such intent and convicted him of attempted threats.

Issue: What mens rea must the government prove in order to obtain a conviction for misdemeanor or felony threats?

Holding: The government must prove the defendant’s mens rea to utter the words as a threat, and may do so by establishing the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

On granting rehearing, the Court asked the parties to brief Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires a finding of mens rea as to both the conduct and the result elements of the statute. Adopting the Court’s reasoning in Elonis, the DCCA “reach[ed] the same conclusion.” To sustain a threats conviction, the en banc court held, “more is required than a showing that a reasonable person would have understood the defendant’s words as a threat or that a defendant should have known that that would be the case.”

The Court did not decide whether a lower-threshold mens rea of recklessness would suffice. The U.S. Attorney’s office had stated that it doesn’t intend to prosecute future threats cases on a recklessness theory.

The Court went on to find that, although there was legally sufficient evidence to support a finding that Mr. Carrell intended to threaten, the trial judge had failed to make a finding on that element, the error was not harmless beyond a reasonable doubt, and thus the case was remanded to the trial court to make the necessary mens rea finding in determining whether Carrell is guilty.

The partial concurrence/dissent: Judge Thompson said she agreed that a threats conviction “requires more than evidence that the defendant intended to utter the words that constitute the threat,” and that she agrees with the majority’s position on the mens rea required for the crime. But she said the opinion doesn’t go far enough, and — citing Justice Alito’s “eloquent[]” concurrence and dissent in Elonis — said the Court should have concluded that a finding of recklessness is enough to satisfy the mens rea element, at least for the misdemeanor threats statute, if not the felony threats statute.

Of Note:

• The Court endorses the Model Penal Code's gradations of intent (purpose, knowledge, recklessness, negligence) over the vague concepts of general and specific intent.
• The Court held that Carrell had preserved the intent issue raised on appeal, although he did expressly raise it at trial. "A 'full range of challenges' to the sufficiency of the evidence are automatically preserved at a bench trial by a defendant‘s plea of not guilty."

LT

Read the full opinion here.

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.

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.

EMAILGATE: Courtroom Clerk Emails Prosecutor Mid-Trial To Tell Him The Witness Is Lying About A Football Game.

Gordon Carpenter & Tyrone Jones v. United States (Decided August 11, 2016).

Players: Associate Judges Thompson and Easterly, and Senior Judge Farrell. Opinion by Judge Thompson. Marc Resnick for Mr. Jones and Abram Pafford for Mr. Carpenter. Trial Judge: Patricia Broderick

Facts: A jury convicted Mr. Jones and Mr. Carpenter of unlawful distribution of heroin after a buy/bust operation. Before trial, Mr. Carpenter moved to suppress physical evidence that police found during a search incident to arrest, a motion the court denied.

Then, during trial, an officer testified that as an arrest team member, he does not get too close to the undercover officers involved in buy/bust operations because that would put their lives in danger. Mr. Carpenter objected to this testimony and moved to strike. Judge Broderick refused to strike the testimony, even though she mused in open court that “there’s certainly no suggestion that life was endangered by these defendants.”

Finally, both defendants testified during trial that the money police saw them exchange during the buy/bust operation was actually them settling a sports debt. Mr. Jones had bet Mr. Carpenter $20 that the Washington Football Team would beat Mr. Carpenter’s favorite team (“probably” the Steelers, 49ers, or Dolphins). Mr. Jones lost that bet because the Washington Football Team lost that game. After the jury returned its verdict but before sentencing, the government notified the defense that the prosecutor had received an email from the courtroom clerk stating that the defendants were lying about the football game. The email exclaimed: “Washington WON that week, and they played the Oakland Raiders . . . so they are not telling the truth!!” Mr. Jones moved for a mistrial, which Judge Broderick denied because there was “no evidence that any of this information, which was public information that anyone could’ve gotten, ever got to the jury.”

Issue 1: Did the trial court err in denying the motion to suppress physical evidence police recovered from Mr. Carpenter?

Holding 1: No. As a threshold matter, the Court clarified that although Mr. Carpenter’s brief styled the issue as “whether there was probable cause for his arrest,” his argument focused on whether “the arrest team officers were justified in stopping him,” thus the Court treated the issue as whether there was reasonable articulable suspicion (RAS) for police to stop him. The Court held that there was RAS based on the lookout police received after the drug transaction: “two African American males, both had hats on, one had a gray hoody and white shirt and the other had a blue hood and a cane.” Police arrived at the scene within a minute and found appellants matching the description on the same block described in the lookout.

Issue 2: Did the trial court err by failing to strike the officer’s testimony that “he didn’t want to be too close to the undercover officers because he would be putting their lives in danger?”

Holding 2: Maybe, but the error was harmless. The Court noted that Judge Broderick seemed to agree when the testimony was objected to that it was irrelevant, and thus the Court opined that it would have “preferable” for her to strike the testimony. But “in light of the facts Judge Broderick at least signaled to the jury that this testimony had no bearing on Carpenter’s trial; that the government did not highlight this testimony in closing; and that the evidence establishing Carpenter’s guilt was otherwise strong,” the error was harmless.

Issue 3: Did the trial court err by denying a mistrial after the courtroom clerk’s ex parte communication with the prosecution during trial came to light?

Holding 3: No. The Court of Appeals noted that the email was “clearly improper” given Code of Judicial Conduct Rule 2.9(A)’s prohibition against judges “permitting” ex parte communications, and Rule 2.9 (D)’s requirement that judges “make reasonable efforts, including providing appropriate supervision” to ensure the rule against ex parte communications is “not violated by court staff.” Nevertheless, the Court held that “the record does not establish that Judge Broderick failed to caution her staff or to make the requisite reasonable efforts,” nor does it “establish that Judge Broderick learned of the courtroom clerk’s email or its contents before the government’s [ ] disclosure.” While Judge Broderick learned about the email before she sentenced Mr. Jones, the sentence Judge Broderick imposed — twenty months’ incarceration and three years’ supervised release, suspended as to all but six months’ incarceration and eighteen months’ probation, which was at the “very low end” of Jones’ twenty to forty-months guidelines range — belied any claim of prejudice. Moreover, Mr. Jones did not claim that the prosecutor took any action based on the clerk’s email or that the email affected jury deliberations.

Of Note: In footnote 19, the court noted that the “timing of the government’s disclosure of the email” was “troubling,” because “had the government disclosed it earlier, Judge Broderick would have been alerted in a more timely fashion to the need to instruct and admonish her courtroom clerk.”  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.  

I'm NOT So Excited: Twelve-Minute 911 Call, During Which Caller Patiently and Rationally Answered Questions, Not Admissible as an "Excited Utterance"

Matthew Gabramadhin v. United States (decided April 28, 2016)

Players: Associate Judges Easterly and McLeese, Senior Judge Reid.  Opinion by Judge McLeese. PDS for Mr. Gabramadhin.  Trial Judge:  Russell F. Canan

Facts:  According to the complainant, M.H., Mr. Gabramadhin approached her as she was walking near Dupont Circle late one night.  He forced her into a nearby park where he assaulted her and stated that he wanted to have sex with her, but he eventually let her go.  M.H., a student at Georgetown, called the university's public safety department, spoke with an officer for several minutes, and was then transferred to a 911 operator, with whom she spoke for several more minutes.  M.H. stated during the call that she had been assaulted, answered numerous questions, and gave a description of her assailant.  M.H. testified that she was "very confused," "really afraid," and "could have been in shock" during this call.  A recording of the entire call was admitted at trial as an "excited utterance."

Mr. Gabramadhin gave a starkly different account of events.  He said that he and M.H. struck up a conversation, and went into a nearby park where they talked more and then began kissing.  M.H. eventually performed oral sex on him. Mr. Gabramadhin then told M.H. that he had a girlfriend, which made M.H. very angry and she followed him and shouted loudly that she hated him.

Issue:  Was the entirety of the 911 call admissible as an "excited utterance"?

Holding: No.  Several factors foreclosed a finding that M.H.'s statements during the call "were a 'spontaneous reaction to the exciting event' rather than 'the result of reflective thought.'"  First, the call lasted 12 minutes, and "lengthier statements are less likely to reflect spontaneity and lack of reflection."  Second, M.H. gave "detailed," "rational," and "patient" answers to questions during the call.  Third, M.H. initiated the call.  Fourth, upon a review of the recording, "the tone and contents of the call are consistent with a determination that M.H. was upset, but they are not consistent with a determination that M.H. was so upset that she was unable to reflect or was speaking reflexively."  Based on these combined factors, the call should not have been admitted as an excited utterance.

The error was not harmless in "a closely contested case that turned almost entirely on the respective credibility of M.H. and Mr. Gabramadhin."  The call went to the central issue at trial (consent), and the physical evidence and other testimony gave some support to both sides.  Although nothing in the call added information that was not in M.H.'s trial testimony, "the statements in the call might well have been more persuasive to the jury because of their temporal proximity to the incident and the level of detail they contained."  Finally, the call was a major feature of the prosecution case, and was both played for the jury and discussed during the government's closing argument.

Although the trial court had ruled that portions of the call were admissible as a present sense impression or statements of prior identification, the Court would not affirm on that basis.  Neither the trial court nor the government had identified the specific portions of the call that would have been admissible under either exception.  The government also mentioned these alternative hearsay exceptions only in a footnote in its brief, without providing specific legal or factual argument.  "In the absence of specific findings from the trial court and adequate briefing from the United States, we are unable to rely on these alternative hearsay exceptions as bases upon which to conclude that the erroneous admission of the call as an excited utterance was harmless."

Of Note:

• For appellate practitioners, the Court's harmless-error analysis holds a lot of promise.  The government's case was not weak, and the 911 call did not contain any information that was not already before the jury.  But the Court properly explains why, in a close case where credibility was key, the 911 call was prejudicial.

• The Court's refusal to address whether portions of the call were admissible under alternate theories is also notable.  Both the government and the trial judges often reference multiple hearsay exceptions without much elaboration.  The Court emphasizes that the proponent of hearsay bears the burden of establishing an applicable exception and specific findings are required.  DG

Read full opinion here.

Ballistics Unchained: Make the government prove chain of custody before admitting physical evidence.

Michael Wonson v. United States (Decided April 14, 2016)

Players: Judges Blackburne-Rigsby and Easterly, and Senior Judge Reid. Per curiam opinion. Concurrence by Judge Easterly. Deborah Persico for Mr. Wonson. Trial Judge: Thomas J. Motley

Facts: At a murder trial, the government admitted ballistics evidence without proving chain of custody. A crime-scene technician testified to collecting the ballistics evidence and a firearms and toolmark examiner testified about his examination of the evidence, but there was no testimony explaining how the evidence got from the technician to the examiner.

Issue: Was it reversible error for the trial court to admit the ballistics evidence?

Holding: No. There is no need to decide whether it was error at all because if it was error, it was harmless. The Court reasoned that the ballistics evidence was only a “peripheral part” of the government’s case against Mr. Wonson, which included a co-defendant’s inculpatory testimony and two witnesses who corroborated the co-defendant’s story.

Concurrence: Judge Easterly opined that the trial court’s admission of the ballistics evidence was erroneous. Judge Easterly recapped what the government must prove before admitting physical evidence. First, the government must show that “the objects are genuine—i.e., that the proffered evidence is what the government says it is.” Second, the government “must establish the integrity of the evidence—i.e., that the evidence has not changed in material ways.” The government must also establish an unbroken chain of custody by a reasonable probability to gain an “evidentiary presumption that it handled and suitably preserved the evidence.” Absent this showing, the trial court must generally exclude the physical evidence. Judge Easterly rejected the government’s argument that a break in the chain of custody affects only the weight of the evidence and not its admissibility.  DH

Read full opinion here.

Trust, but Verify

Jesus A. Hernandez v. United States (decided January 14, 2016).

Players:  Associate Judges Fisher and McLeese, Senior Judge Ruiz.  Opinion by Judge McLeese.  Trial judge Fern Flanagan Saddler.  Geneva G. Vanderhorst for Mr. Hernandez.

Facts:  Mr. Hernandez was convicted of simple assault; his girlfriend, Ms. Argueta-Avila, was the complainant.  The government’s evidence consisted of Ms. Argueta-Avila’s testimony that an intoxicated Mr. Hernandez grabbed her and pushed her, the testimony of a bystander who said that he saw Mr. Hernandez choke her, and testimony of a police officer regarding out-of-court statements by Ms. Argueta-Avila (that she had not been assaulted) as well as his observation of her torn shirt and scratches on her chin and arm.

Issue:  After affirming on sufficiency grounds, the Court was presented with the question whether the trial court conducted an adequate Jencks inquiry after the defense established that the prosecutor took notes during an interview with the complainant. 

Held:  The trial court erred in failing to conduct an adequate inquiry into whether the United States was required to disclose the notes of the prosecutor’s interview with the complainant.  After defense counsel established that the complainant had met with the prosecutor and the prosecutor was taking notes, counsel had no further obligation to establish that the notes were “verbatim,” as the trial judge erroneously believed.  Rather, the trial judge had to make an adequate inquiry or review the notes to see if they were Jencks material.  While the trial judge here inquired of the prosecutor whether she was in possession of any Jencks material, the judge erred in relying on the “assurance from the prosecutor, who is an officer of the [c]ourt” that she had no notes that would constitute Jencks.  The Court of Appeals held that because there is “no clear line” between what is substantially verbatim and what is not, a trial court cannot deny a Jencks request solely by accepting a prosecutor’s “bare conclusion,” but rather has “an affirmative duty to make its own determination whether requested notes come within the purview of Jencks.”  

Of Note:

• The Court distinguished the situation in which a prosecutor represents that she did not take any notes – which is essentially the representation of a prosecutor as to a “pure question of fact as to which the prosecutor had personal knowledge” – something a judge is entitled to credit.  The Court noted that the question whether notes are “substantially verbatim,” by contrast, is “to a degree a legal question” (although the Supreme Court has characterized it as predominantly factual in nature) and therefore “a trial court cannot simply accept, without further inquiry, a prosecutor’s conclusory assertion.”

• After concluding the Jencks inquiry was inadequate, the Court engaged in a harmless error analysis, noting that when the Court does not have access to the Jencks material in question, it must assess harmlessness by assuming that the undisclosed material contained a Jencks statement and that the trial court therefore would have struck the witness’s direct testimony.  Concluding the error was not harmless under that test, the Court remanded the case for an appropriate Jencks inquiry, noting that if the trial court concluded that there was Jencks material that should have been disclosed, the parties should brief the question whether the nondisclosure was harmless given the content of the notes.  If the trial judge concluded the notes do not contain Jencks material, or that any nondisclosure was harmless, Mr. Hernandez would have the right to seek further appellate review.  Presumably, review of the harmlessness determination by the trial court would have to be de novo, under Davis v. United States, 564 A.2d 31, 42 (D.C. 1989 ) (en banc) (appellate court owes no deference to trial court determination of harmlessness).  JF

Read full opinion here.

Stalking Gets You Nowhere

Ronald L. Atkinson v. United States (decided July 30, 2015).

Players: Associate Judges Beckwith and McLeese, Senior Judge Nebeker.  Opinion by Judge Nebeker.  Judith L. Wheat and Marlon C. Griffith for Mr. Atkinson.  Trial Judge:  Robert I. Richter

Facts: This is a case of love gone wrong.  Ronald Atkinson and the complaining witness, Ms. Roebuck, had an intimate relationship that subsequently soured.  Ms. Roebuck moved on, Mr. Atkinson did not.  Mr. Atkinson repeatedly attempted to contact Ms. Roebuck even though she wanted nothing to do with him; she eventually obtained a civil protection order against him.  Contrary to the order, Mr. Atkinson did not stay away.  As a result, he was charged with and convicted of one count of stalking and six counts of violating the terms of the CPO.  

Issue:  Did the trial court err when it merged alternative theories of liability with respect to the stalking charge?  

Holding: Yes, but the error was harmless.  At the government’s urging, the trial court instructed the jury that to be guilty of stalking, it needs to find that Mr. Atkinson “knew or should have known that his conduct would cause Halima Roebuck or a reasonable person in Halima Roebuck’s circumstances” to fear for her safety.  This was error because the inquiry for stalking is objective, considering how a reasonable person in the complainant’s shoes would feel.  The instruction here “impermissibly reduced the government’s burden to convict by allowing the jury to find appellant guilty if he caused Ms. Roebuck to subjectively but unreasonably experience the enumerated emotional harm.”  However, applying the Chapman standard of harmless error, the court found that because the jury was presented with “overwhelming evidence” of Mr. Atkinson’s “objectively frightening behavior,” his conviction must be affirmed.  DH

Read full opinion here.