Juries need to be properly instructed pursuant to Carrell to decide the difference between a true threat and a question.

Malloy v. United States (decided June 21, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ferren. Opinion by Judge Ferren. Dissent by Judge McLeese. Matthew B. Kaplan for Mr. Malloy. Trial Judge: Anita M. Josey-Herring

Facts: Anthony Johnson was inside his car making a phone call when Malloy approached him, allegedly calling him “hot” (meaning a snitch), and asked him whether he was on the phone with police. Malloy continued to call Johnson “hot” and then allegedly said, “What if I shot your car,” to which Johnson replied, “Well I guess that make you feel good.” Malloy then allegedly said, “What if I shoot you,” and Johnson said, “I guess I be dead.” Several witnesses claimed that Malloy then pulled out a black pistol and pointed it at Johnson, who left and reported the incident to a police officer.

At trial, the court admitted testimony that, a few weeks before the charged incident, Malloy yelled at Johnson, calling him “hot” and threatening that “he’d shoot [Johnson’s] car up.” The government also played a recording of a jail call in which Malloy told Johnson's son, Anthony Tate, to tell his father not to come to court “because Tate and Tate’s mother still live around there . . . You know how that shit go,” but then said, “That’s not a threat.”

The defense called two eyewitnesses who testified that it was Johnson who told Malloy to go get his gun, and that Malloy did not threaten to shoot Johnson's car.

Issue 1: Did evidence of the prior threat introduced at trial unfairly prejudice the appellant?

Holding: No. Under (William) Johnson v. U.S., 683 A.2d 1087 (D.C. 1996) (en banc), the Court found the prior threat was “necessary to place [the] incident in context” and “complete the story” of the alleged crime. Johnson alleged that Malloy had a history of accusing him of being a snitch and threatening to shoot up his car, and the government used the prior threat to explain complainant’s unfazed response to the threat.

Issue 2: Did the trial court err in precluding defense witnesses' testimony about Johnson's and Malloy's statements during the confrontation?

Holding: No. The testimony about the statements was admitted, albeit with a limiting instruction that it was relevant only to the witnesses' state of mind.  That limiting instruction may have been wrong, because it was the state of mind of Johnson and Malloy that mattered, not the state of mind of the witnesses recounting those statements at trial.  However, since the limiting instruction was given only once, the DCCA held that there was no prejudice.

Issue 3: Did the jury instructions unconstitutionally permit the jury to find appellant guilty without finding an essential element of the offense of threats, i.e., the mens rea?

Holding: Yes. The DCCA reviewed the issue for plain error because trial counsel failed to object to the jury instruction during trial. At the close of evidence, the trial court instructed the jury as follows: “As to the charge of threatening to kidnap or injure a person, the elements of threat, each of which the government must prove beyond a reasonable doubt, are [1] that the defendant spoke words heard by Anthony Johnson; [2] the words the defendant spoke would cause a person reasonable to believe that Anthony Johnson would be serious harmed; and [3] that the defendant intended to make the communications which constituted the threat. The government is not required to prove that the defendant intended to carry out the threat. It is not necessary that . . . the intended victim actually heard the words or learned about them.”

In Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), the DCCA held that the defendant’s intent to threaten (or at least knowledge that his words will be construed as a threat) is an essential element of a threat. Thus, there was error. "Rather than include Carrell’s language applicable to a defendant’s intent, this instruction permitted conviction merely if the words spoken would cause a person ‘reasonably to believe’ that the complainant would be seriously harmed, without regard to whether the defendant intended such a threat or knew that the words would be perceived as a threat.”

The Court found that the error was “plain” because  “plainness” is assessed at the “time of appellate review regardless of the state of the law at the time of trial.” Accordingly, with the law established by Carrell, the instructional error was plain. The government did not dispute that the error was plain.

In determining whether the error affected substantial rights of the defendant, the Court considered the fact that the alleged threats were posed as questions and that the complainant seemed unfazed by them. Given these facts, there was a “reasonable probability that the jury’s verdict could have been swayed” by the jury instructions. In addition, the Court focused on the lack of overwhelming evidence in the case, which was essentially a credibility contest; that the jury had difficulty in their deliberations, twice asking whether a different episode in the case was the basis for the threats; and the fact that the jury acquitted appellant on all other charges. The error also affected the fairness and integrity of the proceedings, as the failure to instruct on the intent element was a constitutional error on a point that was seriously contested at trial.

Dissent: Judge McLeese dissented as to the instructional issue, noting that although he agreed that the instructions were “not correct,” Malloy's words were “objectively threatening.” Thus, in his view, there was no basis for finding that the jury would have doubted appellant’s intent to threaten.

Caroline Howe, Guest-blogging.

Read full opinion here.

Court Allows Detailed Evidence of Numerous Uncharged Incidents of Sexual Abuse to Provide Context for a Single, Charged Incident

Menendez v. United States (decided March 2, 2017)

Players: Associate Judges Glickman and Thompson, Senior Judge Reid. Opinion by Judge Reid. PDS for appellant. Trial Judge: Russell Canaan. Motions Judge: Robert Morin.

Facts: The government charged appellant with one count of first-degree child sexual abuse with aggravating circumstances. To prove this charge—unsupported by any physical evidence—the government was permitted to introduce a mountain of evidence of uncharged conduct that occurred in Maryland.

The complainant was appellant’s nephew who at the time of the alleged incidents was between the ages of nine and ten. The complainant testified to a single incident when appellant drove him to the optical office in D.C. where he worked in order to make eyeglasses for one of his sons. While there, the complainant claimed appellant took him to a small room, had him remove his pants, and anally raped him. Complainant testified that he did not tell anyone at first because “he was scared [and] confused” and “didn’t know what to do.” Eventually, he did tell his mother but she did not believe him. It was not until later when appellant put the complainant, his mother, and his aunt out of his house that the complainant again told his mother and later spoke with police. There was no other evidence of an incident occurring in D.C.

The government was allowed to introduce evidence of numerous other incidents of uncharged conduct that all occurred in Maryland. This evidence included testimony from the complainant that 1) appellant began performing sexual acts on him when they lived at his home in Maryland, in the bedroom, bathroom, backyard, and kitchen; 2) that appellant pulled complainant’s pants down one time when they were in the living room and complainant then felt appellant’s “private part enter into ‘his butt.’”; 3) appellant showed complainant pornographic movies while he touched himself and told complainant to do the same, followed by appellant anally penetrating complainant; 4) appellant forced complainant to perform oral sex on him on two occasions, and then anally penetrated him after one of the occurrences; and, 5) appellant forced complainant to “block the door” while he touched himself. After many of these incidents, according to the complainant, appellant would ask if he liked it and instruct him not to tell anyone. Additionally, complainant testified that one time he was at a friend’s house when appellant called him and told him to “put Vaseline on his private part, and ‘put it in [his friend’s] butt.” Lastly, two poems the complainant wrote that never mentioned complainant specifically were permitted to be introduced at trial. The poems were titled “I Hurt,” and “Life Has No Meaning.”

The government relied on additional witnesses. An aunt testified that one night, when she entered the room where complainant was sleeping, she “kind of felt something” when she tried to place complainant’s sleeping brother on the mattress. She then heard someone she believed to be appellant say, “oops” and “just put [the brother] down.” She did not expect appellant to be there, and he then got up and went to the backyard.  Also, the government played a videotape of complainant being interviewed by Child Protective Services about his allegations against appellant, and a nurse at the Sexual Assault Center at Prince George’s County Hospital testified to complainant being “very withdrawn” and that he said appellant “put his private part in his butt.”

The government also introduced evidence seized from appellant’s home, including “electronic devices, pornographic flyers, a pillow, a mattress cover” and “a black rubber ring used by a male in the performance of sexual acts,” which was similar to an object complainant said appellant used with him.

Issue:  Did the trial court err by permitting the “prosecution [to] present[] far more evidence of the Maryland abuse than was necessary to provide a context to explain [complainant’s] behavior during and after the [District of Columbia] assault?”

Holding: Not on this record. In Koonce v. United States, 993 A.2d 544 (D.C. 2010), the Court set out factors to admit evidence under the “narrow sexual abuse exception to the admission of propensity evidence.” There, the Court stated, “prior abuse evidence may be admitted under this narrow exception if (1) the sexual abuse involves a defendant and the same victim; (2) the relationship between the alleged abuser and the victim constitutes or approximates a close familiar connection; (3) the pattern of sexual abuse started when the victim was very young and occurred at reasonably short and regular intervals without meaningful interruption; and (4) the evidence is pivotal to the prosecution’s case because proof of context is required.” Id. at 556. The Court upheld the ruling below that all of the Koonce factors in the instant case were met.

The Court concluded the first factor was obviously met and that the second was met because appellant and complainant were described as being “really close,” complainant treated appellant “as his dad,” and complainant, his mom, and appellant occupied the same home in a family setting.  The third factor was satisfied by evidence of continuous abuse without a “multi-year gap between [appellant’s] acts of sexual abuse in Maryland, and his act of sexual abuse in the District of Columbia,” and that the abuse occurred over a “discrete period of time” between “early January 2009 and mid-May 2009[.]”

As to the fourth factor—the requirement for the evidence to be “pivotal” to providing “context”—the Court relied heavily on its determination that the trial court “carefully scrutinized the parties’ pleadings and arguments, and the [pertinent] proffer[s].” The Court agreed with the government’s position that “the evidence of [appellant’s] uncharged prior Maryland acts of sexual abuse against [complainant] was essential because it served as context for the charged act of sexual abuse in the District of Columbia, to explain [complainant’s] apparent lack of reaction or expressed concern, complaint or report of the abuse.” “On this record, where the trial court scrutinized and limited the evidence of the Maryland uncharged acts of sexual abuse and properly instructed the jury in response to its question about the limited purpose for which the Maryland evidence was introduced, we cannot say that the trial court erred or abused its discretion in ruling that the government’s proffer and proof satisfied the fourth Koonce factor.”

As to the prejudicial impact, appellant argued that even if the Koonce factors were met and some of the evidence admissible, there simply was no need to turn a trial about a single incident in D.C. into a lengthy trial that focused the overwhelming majority of the time on highly prejudicial testimony about the uncharged misconduct. The Court, however, concluded that the uncharged misconduct “no doubt . . . had probative value,” and that because the trial court “spent substantial time” on the issue with its “expertise in evidentiary matters,” “we cannot say that the trial court abused its discretion[.]”

Of Note:

• The Court declined to consider appellant’s Brady claim that the government failed to disclosed favorable evidence regarding its witness's bias because that claim was presented for the first time on appeal and the Court deemed the record insufficient for appellate review. The Court said it would decline to hear the issue until a §23-110 motion was filed in Superior Court. 
• The Court emphasized several times that the Koonce test represents a “narrow exception” to the rule against propensity evidence, applicable only when all four Koonce factors are met and when the prior abuse has been established by “clear and convincing” evidence.
• The Court reiterated Koonce’s finding that in order to satisfy the four “pivotal context”  prong for admissibility, the uncharged evidence must do more than provide a “starting point” for the charged conduct.  BM

Read the full opinion here.

Court Upholds Restricting Evidence of Decedent’s Violent Character to Bare Fact of Prior Conviction, Where Details Underlying Conviction Might Paint Decedent as a “Bad Guy”

David A. Shepherd v. United States (decided August 4, 2016)

Players: Associate Judges Fisher and Thompson, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Shepherd. Trial Judge: Russell F. Canan.

Facts: Mr. Shepherd was convicted for shooting to death a new acquaintance, Henry Charles Miller, after a heated exchange of words. Mr. Shepherd claimed self-defense, testifying that Mr. Miller pulled a gun on him after the argument, that he then grabbed the gun, and that it went off during the ensuing struggle. Several eyewitnesses testified to the contrary that Mr. Shepherd produced the gun and shot Mr. Miller in the face at close range. To support its contention that Mr. Miller was the first aggressor, the defense was permitted to introduce evidence that he recently had been convicted of attempted robbery and misdemeanor assault. It was not permitted to introduce evidence that the assault conviction was for breaking into his ex-girlfriend’s house while highly intoxicated, tearing off her clothes, repeatedly slamming her head against a wall, spitting in her face, and hitting her in the head with a towel rod in front of her children.

Issue: Did the trial court abuse its discretion when it excluded the details of the decedent’s prior, violent assault on his ex-girlfriend?

Holding: No. While defendants in homicide prosecutions may be permitted to put on evidence of the decedent’s violent character to support a claim of self-defense, they do “not have an absolute right to introduce such evidence.” The trial court has “broad discretion” to decide how much and what type of first aggressor evidence the jury will hear and may exclude such evidence if its probative value is outweighed by the danger of prejudice. Factors to be considered in balancing the value of first aggressor evidence are: “[1] the form of proof (accusations or convictions), [2] whether presenting it would waste trial time or confuse the issues, [3] remoteness in time, [4] the decedent’s character in the interim, and [5] the ‘type’ of violence evidenced by the act.” Here, the Court of Appeals acknowledged that Mr. Miller’s prior assault “certainly” indicated he had a violent nature, and that the circumstances were similar to the charged shooting in that Mr. Miller was intoxicated at both times. Nevertheless, it held that the probative value of the prior assault was limited because the circumstances were otherwise quite different: an incident of domestic violence versus allegedly pulling out a gun and shooting someone Mr. Miller had just met. Moreover, the Court opined, the violent details of the prior assault did nothing to illuminate the sole fact truly at issue in this case: whether it was Mr. Miller or Mr. Shepherd who brought a gun with him to the scene where they met and argued. The risk that the jury would illogically conclude Mr. Miller brought the gun simply because of this persuasive evidence that he was a “bad guy” was substantial enough to justify the trial court’s exclusion of the prior assault details.

Of Note:

• The Court acknowledged the difficulty of balancing probative value against prejudicial impact for specific instances of violent conduct by the decedent. Such evidence, it observed, is both the most convincing character evidence and the most likely to cause prejudice, confusion, surprise, or a waste of courtroom time.

• The Court also considered Mr. Shepherd’s claim that the trial court erred in issuing, after the government mischaracterized several points of evidence in its rebuttal argument, only a standard curative instruction that the jury’s recollection controls. While the Court agreed that the prosecutor misstated the evidence and warned that “it is vital for a prosecutor to choose her words carefully” lest she “needlessly jeopardize convictions,” it deferred to the trial court’s conclusion that the statements at issue here were not “such a mischaracterization of the record to warrant any further remedy.” FT

Read full opinion here.

I'm Sure the Jury Didn't Hear That!

Christopher T. Holmes v. United States (decided July 21, 2016)

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by Judge King; Judge McLeese dissenting in part. Peters H. Meyers for Mr. Holmes.  Trial Judge: Rhonda Reid Winston.

Facts: After David Tucker accused his friend, Mr. Holmes, of being up to no good and looking for someone to rob, the two men got into a heated verbal altercation. The altercation, which began in a barber shop, got physical and spilled out into the street, where, eventually, Mr. Holmes shot and killed Mr. Tucker. The incident occurred during the day, and was witnessed by two men, Akeem Young and Carlton Clemons, who identified Mr. Holmes as the shooter.

At trial, Nicholas Proctor was permitted to testify that he had been the victim of a robbery and that prior to the shooting he had told Mr. Tucker that Mr. Holmes might have been the perpetrator. Additionally, both Mr. Young and Mr. Clemons were permitted to explain their reluctance to testify and additions to their accounts with statements that they were scared of being involved in a homicide case. Finally, during the trial, a potential defense witness, who was never called, started “screaming” right outside the courtroom, “There are people in this room. My life is in danger.” The trial court denied the defense’s request for a mistrial as a result of this outburst, after finding that it was not clear if the jury had heard the outburst or realized it was connected to the trial. Further, the court gave the jury no curative instruction related to the outburst.

Issue 1: Did the trial court abuse its discretion in admitting Mr. Proctor’s testimony about a prior robbery as more probative than prejudicial?

Holding: No. The evidence was admitted to explain Mr. Tucker’s argument with Mr. Holmes (accusing his friend of looking to rob someone), see Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc), and not to show criminal propensity. Moreover, the trial court instructed that the evidence be carefully limited to no more than that Mr. Proctor had made an accusation to Mr. Tucker, excluding any testimony about the robbery or what led Mr. Proctor to believe Mr. Holmes was responsible. Under these circumstances, the testimony was not more prejudicial than probative.

Issue 2: Did the trial court abuse its discretion in admitting Mr. Young and Mr. Clemons fear testimony as more prejudicial than probative?

Holding: No. The DCCA finds that Clemons’s testimony was properly admitted because he testified very generically about being scared of testifying in a homicide case. Such “generic” testimony did not reasonably give rise to a concern that Clemons was specifically scarred of Mr. Holmes. Young’s testimony was a closer call for the DCCA because his testimony included fear based on his claim to have been twice told by Mr. Holmes himself not to testify. Ultimately, the DCCA relies on Young’s testimony on cross examination that he did not perceive his two encounters with Mr. Holmes as “threats” to find that Young’s fear testimony would not unfairly lead the jury to believe Mr. Holmes had engaged in witness intimidation.

Issue 3: Did the trial court abuse its discretion in denying Mr. Holmes’s motion for a mistrial, or for failing to conduct further inquiry into whether or not the jury might have been influenced by the outburst outside the courtroom?

Holding: No. Although both the majority and the dissent agree that where the jury’s impartiality has been “plausibly called into question, it is the responsibility of the trial judge to hold a hearing to determine whether the allegation of bias had merit,” Tann v. United States, 127 A.3d 400, 470 (D.C. 2015), and that the government has the burden “to demonstrate that the [jury’s] contact with extraneous information was harmless or non-prejudicial,” id., the majority concludes that the trial court’s colloquy with counsel was sufficient for the court to determine that no further questioning of the jury or instruction was required, and to deny the request for a mistrial. The majority relies on the fact that the trial court found that it was not clear that members of the jury had heard the outburst, or that they would have any reason to connect the outburst with the trial proceedings.

Dissent: Judge McLeese parts ways with the majority as to Issue 3. He would find that the trial court abused its discretion for failing to make any inquiry of the members of the jury as to whether and to what extent any of them might have been influenced by the outburst. Judge McLeese would hold that such an inquiry was required before the court could properly decide what, if any, corrective action was required. This dissent is important because it carefully applies the ruling of Tann, and can therefore be used as a template in future arguments about this heavily fact specific question.  CP

Read full opinion here.

Reminder: You can keep out prejudicial evidence of your client’s release status and prior conviction, so object when the government seeks to introduce stipulations on these issues

Richard Walker Williams v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Thompson, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  Debra Soltis for Mr. Williams.  Robert E. Morin, Trial Judge.

Facts: This case arises from a fatal stabbing.  Mr. Williams was appointed standby counsel at trial after his two previous attorneys’ motions to withdraw were granted.  At the suppression hearing, Mr. Williams alleged multiple instances of prosecutorial misconduct, including that the government had knowingly allowed a witness to give false testimony at a preliminary hearing and had altered police records.  Mr. Williams’ standby counsel requested a mental evaluation, and the staff psychologist at St. Elizabeth’s stated after a screening interview that she could not discern whether Mr. Williams was “unwilling” or “unable” to participate in court proceedings.  Mr. Williams was then committed to St. Elizabeths Hospital for a competency evaluation.  At a competency hearing, a staff psychologist at St. Elizabeths who had diagnosed Mr. Williams with malingering opined that Mr. Williams was competent to represent himself without counsel.  The psychologist’s opinion was based on her daily interactions with Mr. Williams over the two-month evaluation period, as well as her consultation and review of his records.  Mr. Williams’ standby counsel also informed the court that he believed Mr. Williams would be able to work with him on technical legal questions.  The court found Mr. Williams competent, crediting the psychologist’s opinion that Mr. Williams seemed able to turn his paranoia “off and on . . . like a light switch.”  Mr. Williams then represented himself at trial with his appointed attorney serving as standby counsel.  

At trial, the government introduced, without objection, stipulations as to Mr. Williams’ prior felony conviction (an element of the charge of carrying a dangerous weapon having been previously convicted of a felony (CDW)) and Mr. Williams’ release status at the time of the offense (an element of the charge of committing an offense during release (OCDR)).  Mr. Williams was convicted of second-degree murder while armed, CDW, and two counts of OCDR.  

Competency Issues: Whether the court erred in finding Mr. Williams competent for self-representation and whether the trial court abused its discretion by failing to re-examine sua sponte the issue of competency during trial and sentencing.

Holding:  No.  The DCCA found that the trial court’s determinations were supported by “ample evidence,” including the court’s interactions with Mr. Williams throughout pre-trial proceedings; evidence at the competency hearing; the court’s lengthy formal inquiry with Mr. Williams on the issue of whether Mr. Williams was competent to represent himself at trial; and Mr. Williams’ ability to file and argue pro se motions and form defense theories.  And according to the DCCA, the trial court did not err by failing to re-examine the issue sua sponte, given that during trial, Mr. Williams was able to cross-examine witnesses effectively, highlight inconsistencies and gaps in the government’s evidence, and present his own version of the incident.

Other Crimes Issue: Whether the trial court committed plain error by allowing the government to introduce evidentiary stipulations at trial regarding Mr. Williams’ felony conviction and release status.

Holding:  Yes.  The DCCA found that (1) OCDR does not create a separate offense, but is a sentencing enhancement, and (2) evidence of a prior felony conviction is unnecessary and prejudicial if the defendant is willing to stipulate to this fact.  Slip Op. at 22-24 (citing Eady v. United States, 44 A.3d 257 (D.C. 2012)).  Therefore, it was plain error for the trial court to admit evidence of the appellant’s release status and prior conviction, in light of Mr. Williams’ stipulations on these issues.  However, this error did not warrant reversal, given that two “credible” eyewitnesses and video evidence supported the government’s case and that the prejudicial effect of the stipulations was limited by the trial court’s limiting instructions.  NG

Read full opinion here.