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.

A question about the Youth Rehabilitation Act produces four opinions, but no firm answers.

Briscoe v. United States (decided March 29, 2018)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ruiz. Opinion by Judge Thompson. Concurring Opinion by Judge McLeese. Separate Statement by Judge Thompson. Dissent by Judge Ruiz. Donna L. Biderman for Mr. Briscoe. Trial Judge: Milton C. Lee

Facts: Briscoe was convicted of robbery while armed, assault with a  dangerous weapon, and possession of a firearm during a crime of violence (PFCV). Because of Briscoe's young age, his attorney asked for a "lenient" sentence under the Youth Rehabilitation Act (YRA). The trial judge imposed a five-year sentence, the mandatory minimum under both the statute for a robbery (or other crime of violence) while armed (D.C. Code § 22-4502(a)) and the PFCV statute (D.C. Code § 22-4504(b)). The judge stated that five years might be "a little too harsh," but imposed that sentence anyway.

Issue: Did the trial court have discretion under the YRA to impose a sentence below the mandatory minimums ordinarily required by the while-armed and PFCV statutes?

Holding: No plain error. The Court reviewed this claim only for plain error because, although defense counsel asked the trial court to make expungement possible under the YRA, "he never argued that the court had discretion not to impose the mandatory-minimum sentences." The attorney's request for a "lenient" sentence did not apprise the court that he was asking for a  below-minimum sentence.

The majority rejected the argument that it was bound by Green v. United States, 974 A.2d 248 (D.C. 2009). In Green the government had conceded that the mandatory minimums in the while-armed and PFCV statutes do not apply in YRA-eligible case. The Court accepted the concession in Green, but, according to the majority, had not decided the issue. Therefore, Green was not binding precedent on that issue.

Analyzing the issue "afresh," the majority held that it was not plain error to apply the mandatory minimum provisions of the "while armed" and PFCV statutes. The YRA authorizes a suspended sentence or a sentence of "treatment and supervision" in place of imprisonment. D.C. Code § 24-903. Both the while-armed and PFCV statutes impose five-year minimums and prohibit (in gun cases) suspension of sentence before the five-year minimum has been served. Thus, the question is whether the YRA trumps the while-armed and PFCV statutes, or vice versa.

For the while-armed statute, the court recognized that Briscoe "possibly has ... the better of the argument." The court noted that § 22-4502(e)(1) expressly forbids a YRA sentence after a person's first while-armed offense — implying that a YRA sentence could be imposed for the first while-armed offense.

For PFCV, however, the Court found nothing in the statute or legislative history to suggest that the statute permits below-minimum sentences under the YRA.  The Court therefore could not find any error that was plain in the PFCV sentence.  For that reason, any assumed error in the armed robbery sentence could not affect Briscoe's "substantial rights" because the sentences were concurrent.

Of Note

• Although the majority opinion suggests that the YRA does not authorize a below-minimum sentence in a PFCV case, it does not so hold. It merely holds that any error was not obvious enough to qualify as plain error. Defense attorneys may continue to argue for below-minimum sentences in these cases.  Support for those arguments can be found in both the majority and dissenting opinions.

• Judge McLeese's concurrence emphasized why, in the majority's view, the Court was not bound by Green.

• Judge Thompson wrote a separate statement, responding to a point in the dissent, explaining why she did not think that the appellant in this case and in Green were "similarly situated."

• Judge Ruiz dissented, concluding that the trial court plainly erred in thinking it was bound by the mandatory minimums. Judge Ruiz reasoned that the Court was bound by Green because the opinion did not say it was merely accepting the government's concession or assuming the issue without deciding it. She also analyzed the statutes to conclude that the YRA trumps the mandatory minimums in the while-armed and PFCV statutes.

• The Court summarily rejected a claim that sanctions should have been imposed for the government's failure to preserve surveillance video of the robbery. Although an investigator testified that he saw a camera in the alley where the robbery occurred, he was never able to get the footage from the property owner.  Because the footage was never in the government's possession, it had no duty under Brady or Rule 16 to turn it over to the defense. DG

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.

Court Warns That Red Book’s “While Armed” Instruction Can Impermissibly Imply That Defendant Did, In Fact, Possess Charged Weapon

Nathaniel Cousart v. United States (decided August 4, 2016)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman. Opinion by Judge Steadman. Matthew J. Peed for Mr. Cousart. Trial Judge: Patricia A. Broderick.

Facts: Mr. Cousart was convicted of aggravated assault while armed (AAWA) for stabbing one Mr. Barrett with a knife, and with ADW for again taking out his knife and stepping threateningly toward a private security guard who came to Mr. Barrett’s aid. The security guard testified that he drew his gun in response, prompting Mr. Cousart to retreat and throw the knife down a sewer before he was apprehended. The trial court instructed the jury on AAWA using language taken virtually verbatim from Red Book Instruction 4.103, describing the elements of aggravated assault, followed immediately by Instruction 8.101(B), the “while armed” instruction. The latter began, “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use. . . .” In instructing the jury on ADW, the trial court read Red Book Instruction 4.101, Option A, which defines the attempted-battery theory of ADW. It did not include bracketed language from that instruction requiring the jury to determine whether Mr. Cousart “had the apparent ability to injure” the complainant at the time of the offense. The defense did not object to either instruction.

Issue 1: Was the trial court’s AAWA instruction an improper partial directed verdict that Mr. Cousart did, in fact, possess the knife as a dangerous weapon?

Holding 1: No. Considering the jury instructions as a whole, under the rigorous plain error standard of review, the Court of Appeals held that there was no reasonable probability that jurors would have understand the challenged sentence to mean they did not have to determine whether Mr. Cousart actually possessed the alleged knife (and whether the knife met the definition of “dangerous weapon”). Nevertheless, the Court urged trial judges to take care in using the Red Book’s “while armed” Instruction, which begins, “At the time of the offense, [name of defendant] was armed with, or had readily available,” followed by a bracketed list of weapons to which the enhancement applies. The Court warned that “when this instruction is simply tacked on to a prior instruction without a clear indication that it is a statement of what the jury must find and not an assertion that the defendant did in fact carry some particular item, it could be subject to misinterpretation.”

Issue 2: Did the trial court’s omission of the “apparent ability to injure” element from its ADW instruction require reversal?

Holding 2: No. The Court of Appeals assumed without deciding that an apparent ability to injure is a required element of attempted-battery assault (as it is for intent-to-frighten assault), but declined to reverse on plain error review. In light of the government’s evidence that Mr. Cousart advanced on the security guard while brandishing the knife in a frightening enough manner to prompt him to draw his gun, the Court concluded that there was no reasonable probability the jury would have reached a different verdict had it been instructed that it must find Mr. Cousart had the apparent ability to injury the security guard.

Of Note:

• The Court of Appeals also held that there was sufficient evidence of attempted-battery ADW based on Mr. Cousart’s pulling out his knife before stepping toward the security guard. It noted, however, that it was a “close” sufficiency call. FT

Read full opinion here.

Unpreserved Error, but No Reversal, Where Trial Court Omitted from Reasonable Doubt Instruction Red Book Language Contrasting Burdens of Proof in Civil and Criminal Cases

Daniel Griffin v. United States (decided August 4, 2016)

Players: Associate Judges Fisher & McLeese, and Senior Judge Steadman. Opinion by Judge Fisher. Enid Hinkes for Mr. Griffin. Trial Judge: John McCabe.

Facts: Mr. Griffin was charged with various weapons offenses. Near the end of trial, the court circulated proposed jury instructions. The reasonable doubt instruction was taken verbatim from Red Book Instruction 2.108, except it omitted three lines comparing the burden of proof in civil and criminal cases: In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Defense counsel indicated approval of the proposed instructions. When the trial court read the instructions to the jury, it also omitted the opening line of the reasonable doubt instruction: The government has the burden of proving the defendant guilty beyond a reasonable doubt. The defense did not object, and Mr. Griffin was convicted on all counts.

Issue: Did the omissions from the reasonable doubt instruction require reversal?

Holding: On plain error review, the Court of Appeals found instructional error, but held that it did not require reversal. It was clearly error for the trial court to omit language from the Red Book instruction, which replicates the reasonable doubt instruction adopted by the en banc Court in Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc), because the Smith court advised “in the strongest terms” that trial courts are not to alter or embellish the language it crafted. Id. at 82-83. Nevertheless, the instructions as a whole — which contained the bulk of Red Book Instruction 2.108 along with several other statements that the government must prove each element of the charged offenses beyond a reasonable doubt — “correctly convey[ed] the concept of reasonable doubt” and did “not inaccurately describe that concept or lessen the government’s burden.” As such, the court’s error was not structural in nature and did not affect Mr. Griffin’s substantial rights. Because Mr. Griffin did not satisfy this third prong of plain error review, the Court of Appeals affirmed his conviction.

Of Note:

• The Court emphasized that it continues “to discourage, ‘in the strongest terms,’ any deviation from the instruction prescribed in Smith.

• The Court noted that where the trial court’s jury instructions misdescribe the burden of proof, a structural error results. When preserved by timely objection, such a structural error requires automatic reversal without the traditional harmlessness analysis. When unpreserved, such an error remains subject to plain error review, though the third prong of plain error review is automatically satisfied. FT

Read full opinion here.

Sleeping It Off in Your Car Can Be DUI (and a Statutory Presumption that Defendants with Prior DUIs who Refuse Breathalyzer Tests Were “Under the Influence” Is Not PLAINLY Unconstitutional)

Anthony Bell v. District of Columbia (decided February 25, 2016)

Players: Chief Judge Washington, Associate Judge Thompson, and Senior Judge Newman. Opinion by Judge Thompson. Joseph A. Scrofano for Mr. Bell. Trial Judge: A. Franklin Burgess, Jr.

Facts: Police found Bell asleep in the driver’s seat of a car that was parked outside a nightclub shortly after closing time, with the car keys in his pocket. They had difficulty rousing him, and upon removing him from the vehicle, noted a strong smell of alcohol and slurred speech by Bell. Bell failed the standardized field sobriety tests, was arrested and advised of his rights under D.C.’s Implied Consent Act, D.C. Code § 50-1905. He refused to consent to a breathalyzer test. Bell’s defense was that he was tired from working long hours and in a very deep sleep from which it was difficult to awake. He said he refused the breath test because he had consumed “a couple of beers” and “figured that it would register[.]” Finding “overwhelming” evidence that Bell—who had a prior DUI conviction— was under the influence, the trial judge found him guilty of DUI.

Issue 1: Was Mr. Bell “in actual physical control of the vehicle” as required by the DUI statute, D.C. Code § 50-2206.11?

Holding 1: Yes. Following the factually indistinguishable case of Berger v. District of Columbia, 597 A.2d 407 (D.C. 1991), the Court of Appeals concluded that Bell was in “actual physical control” of his car because he was alone, behind the steering wheel, and had the car keys in his pocket. Thus, he “was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive.”

Issue 2: Does the Implied Consent Act’s statutory presumption that individuals with a prior DUI conviction who refuse a breathalyzer test are “under the influence” unconstitutionally shift the burden to such defendants to prove their innocence?

Holding 2: Not in this case. Reviewing for plain error, the Court of Appeals held that the statutory presumption is not plainly unconstitutional because it is not plainly a mandatory presumption. Without deciding this unpreserved issue “definitively,” the Court noted that despite the mandatory-sounding statutory language, the presumption appears to be treated in practice as a constitutionally acceptable permissive presumption. The Red Book, for example, instructs that when a defendant with a qualifying conviction refuses to submit to chemical testing, jurors “may, but are not required to, conclude that s/he was under the influence.” In this bench trial, moreover, the judge’s ruling made clear that he did not treat the presumption as mandatory in finding Bell was under the influence.

Of Note:

• The Court does not “definitively” hold that the Implied Consent Act’s presumption is always constitutional. If, in a case where the presumption applies, the jury is not instructed with the Red Book’s permissive language, or in a bench trial the judge makes findings that suggest she felt bound by the presumption to find the defendant “under the influence,” defense counsel should object on constitutional grounds.

• The Court of Appeals noted that Bell was found “in the upright position of one intending to drive, rather than a reclined position” that might indicate “he lowered his seat back in order to sleep for a while.” One could use this footnote to attempt to distinguish other cases of intoxicated persons sleeping in a parked car’s reclined driver’s seat or where there are other indications that the person had no intention of driving the car. FT

Read full opinion here.

OBJECT if a Firearms Examiner Testifies with Any Degree of Certainty That Markings on Recovered Bullets Were Produced By a Specific Gun

Marlon Williams v. United States (decided January 21, 2016)

Players: Associate Judges Thompson and Easterly, Senior Judge Nebeker. Opinion by Judge Easterly. Concurrence by Judge Easterly. Enid Hinkes for Mr. Williams. Trial Judge: Russell F. Canan.

Facts: Soon after Min Soo Kang was found shot to death in Southeast D.C., police used the OnStar navigation system installed in his Cadillac Escalade to recover the vehicle. From a digital database of known fingerprints, they identified Marlon Williams as a possible source of fingerprints found on and inside the Escalade. A subsequent search of Williams’s home turned up a gun in his bedroom. A firearms and toolmark examiner test-fired the gun and compared the resulting bullet markings to markings on bullets recovered from Kang’s vehicle. At trial, the examiner testified that every gun leaves “unique” marks on the bullets it fires, and that based on his comparison, there was not “any doubt in [his] mind” that the bullets recovered from Kang’s vehicle were fired by the gun recovered from Williams’s room. On the basis of this evidence—along with a cooperating witness’s testimony that Williams made incriminating statements and eyewitness testimony that someone matching Williams’s description was opening and closing the hood of the Escalade around the time the OnStar service remotely disabled it—a jury convicted Williams of first-degree felony murder while armed, attempted robbery while armed, PFCV, and CPWL.

Issue: Should the firearms and toolmarks examiner have been permitted to testify that the markings on the bullets recovered from Kang’s Escalade were “unique” and that he was without “any doubt” that they were fired by the gun recovered from Williams’s room?

Holding: The majority opinion strongly implied — and Judge Easterly’s concurrence expressly concluded — that the examiner should not have been permitted to testify with such absolute certainty that the recovered bullets matched Williams’s gun, but the Court declined to reverse on that ground because the unobjected-to testimony did not rise to the level of plain error. Although the same issue was presented in an earlier case, Jones v. United States, 27 A.3d 1130 (D.C. 2011), the government had at that time assured the Court that its policy was “to only elicit firearms examiners’ opinions [of a match] to a reasonable degree of scientific certainty,” not “100% certain[ty].” In light of this assurance, the Court in Jones merely “assume[d], without deciding, that [firearms and toolmark] experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.” Id. at 1139 (emphasis added). Thus, there was no controlling precedent in this jurisdiction at the time of Williams’s trial, nor was there sufficient weight of authority from other jurisdictions to say that the trial court “plainly” erred in allowing the examiner’s testimony. And while the government concededly violated its own policy in this case, the Court held that such a policy is not binding law and cannot by itself form the basis of a plain error determination.

Concurrence: In addition to authoring the majority opinion, Judge Easterly wrote a separate and forceful concurrence in which she concluded that D.C. courts should “preclude a firearms and toolmark examiner from testifying with unqualified, absolute certainty.” The reason, Judge Easterly explained, can be found in two reports published by committees of the National Research Counsel (NRC), an arm of the publicly chartered National Science Foundation. The first, a 2008 report commissioned by the Department of Justice, found that there is simply not enough scientific research to establish that “firearms-related toolmarks are unique: that is, [that] a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others,” and that experts’ commonplace testimony to that effect “cloak[s] an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.” The second NRC publication, a 2009 report commissioned by Congress, similarly concluded that there is no statistical basis to say with any particular degree of certainty that toolmarks on a bullet match a specific gun or other bullets fired from that gun. In light of these findings, Judge Easterly concluded, “[c]ertainty statements” like those at issue in this case are not only not helpful to juries, they are misleading, and they create an “alarming” risk of wrongful convictions. As Judge Easterly put it, “a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic . . . .” As such, they are not admissible as expert testimony.

Of Note:

• So misleading is testimony that an examiner is certain of a match to a specific gun—and likewise, testimony that each gun leaves a “unique” mark on bullets it fires—that Judge Easterly suggested defense counsel is constitutionally ineffective if he or she fails to object, and the government is in violation of its obligation under Napue v. Illinois, 360 U.S. 264 (1959), to avoid knowingly presenting false or misleading evidence if it elicits or allows such certainty statements to go uncorrected.

• Judge Easterly’s concurrence could provide substantial support to argue that an examiner’s claim of any degree of certainty in a match, even if not 100% certainty, is impermissibly misleading. The concurrence specifically notes that firearms examiners should not be permitted to claim “a reasonable degree of scientific certainty” about a toolmark match, because the 2009 NRC report found it impossible to say “how many points of similarity are necessary for a given level of confidence in the result.” It also cites with approval cases from federal district courts that have prohibited an examiner from saying he reached his conclusions with any degree of certainty and limited an examiner to describing the observed toolmark similarities without stating any conclusion of a match.

• The majority opinion rejected, for lack of plain error, an unpreserved claim that the firearms examiner failed to present the images or other “documentation” underlying his opinions for the jury to evaluate for itself. It nevertheless left the door open for a future argument that toolmark pattern-matching testimony must include “sufficient documentation to permit the jury to meaningfully evaluate the expert’s subjective conclusions,” noting one federal district court had so held, and another had urged, but not required, supporting documentation.

• Williams also raised several other issues on appeal, including sufficiency of the evidence for attempted armed robbery; a hearsay and Confrontation Clause challenge to the firearms examiner’s report, which bore the signature of a second, non-testifying examiner; an unpreserved challenge to the admission of fingerprint evidence; an unpreserved argument that he was entitled to a hearing based on Franks v. Delaware, 438 U.S. 154 (1978), because of a discrepancy between the fingerprint examiner’s testimony and the search warrant issued for his home; and a claim that his attempted robbery and corresponding PFCV conviction must merge with his felony murder conviction. The Court rejected all but the merger argument. FT.

Read full opinion here

.

Plain when? Plain now!

Krishna Patrick Muir v. District of Columbia (decided January 14, 2016).

Players:  Associate Judges Glickman and McLeese, Senior Judge Newman.  Opinion by Judge Glickman; Judge Newman concurs in the judgment.  Trial judge: Anthony Epstein.  Daniel K. Dorsey for Mr. Muir.

Facts:     Mr. Muir was tried for driving under the influence (DUI) and operating a vehicle while impaired (OWI) in 2011, before the Court of Appeals decided, in Taylor v. District of Columbia, 49 A.2d 1259, 1267 (D.C. 2012), that the alcohol impairment threshold is the same for both offenses, and that both require proof of an “appreciable degree” of impairment.  Mr. Muir’s jury was instructed that it could convict Mr. Muir of OWI if it found that his consumption of alcohol impaired his ability to operate a motor vehicle “in any way,” while in order to convict him of DUI, it would have to find “an appreciable degree” of impairment.  The jury convicted Mr. Muir of OWI and acquitted him of DUI.

Issue:  Whether the erroneous instruction, given at a time when the law was unsettled, constituted plain error necessitating reversal of the OWI conviction.   

Held:  Mr. Muir’s conviction was reversed because the Court of Appeals held that all four prongs of the Olano test were satisfied.  Of interest is the “plainness” analysis.  In 1997, the Supreme Court held in Johnson v. United States, 520 U.S. 461 (1997), that when the law at the time of trial was settled and contrary to the law at the time of appeal, it is sufficient for plain error purposes that the error be “plain” at the time of appellate consideration.  Johnson left open, however, the question whether the same rule applies when the law at the time of trial is unsettled.  This question was decided in Henderson v. United States, 133 S.Ct. 1121, 1130-31 (2013), when the Supreme Court held that “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration for the second [plainness] part of the four-part Olano test to be satisfied.”  

In this case, the Court of Appeals adopted the analysis of the Supreme Court in Henderson for the purpose of interpreting local Super. Ct. Crim. R. 52(b).  Following Henderson, it held that plainness will be determined at the time of appellate review, even when the law was unsettled at the time of trial.  Applying this test, the Court concluded the instruction was error and the error was plain.  Because the Court found the remaining prongs of the plain error test were met, it reversed Mr. Muir’s OWI conviction. JF

Read full opinion here.

Contents of Police File from Decedent’s Prior Conviction Not Material for Brady Purposes

Ellsworth S. Colbert v. United States (decided October 22, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Newman. Opinion by Judge Thompson. Dissenting opinion by Judge Beckwith. Jenifer Wicks for Mr. Colbert. Trial judge: Herbert B. Dixon, Jr.

Facts: Ellsworth Colbert got into a fight with another man and the other man died of stab wounds. Colbert argued that he acted in self-defense, but he was convicted of manslaughter while armed, ADW, and CDW. The decedent had a prior conviction for ADW in North Carolina. Mid-trial, the prosecution informed the judge and defense counsel that it had received a police investigative file from that case. When the judge asked the defense what information it wanted to know about the North Carolina conviction, other than the nature and date of the offense, defense counsel asked only about the type of weapon used. The defense did not specifically request access to the file or request more time to investigate. The judge never ruled on whether the government had to disclose the North Carolina file, and the parties ultimately stipulated to the prior conviction and the fact that the decedent had used a gun.

During deliberations, the jury asked whether all of the elements of the respective homicide offenses charged must “be true at the same point in time,” or whether “all elements [could] be true at some point in time, though not necessarily at the same point in time?” The judge directed the jury to the elements of the offenses and instructed it to pay attention to any language referring to timing.

Issue 1: Did the government violate Brady by failing to turn over the police investigative file relating to the decedent’s prior conviction?

Holding 1: No. Colbert failed to demonstrate that the contents of the file were material, where the jury heard evidence from three witnesses about prior violence on the part of the decedent, where evidence about the North Carolina conviction was admitted pursuant to stipulation, and where the defense was able “to argue extensively in closing that the decedent had a violent disposition.”

Issue 2: Was it plain error for the trial court to respond to the jury’s note by referring the jury back to the instructions on the elements of the offenses, rather than instructing that with regard to manslaughter, “all elements must be true at the same time”?

Holding 2: No. Even assuming Colbert did not waive the challenge to the instruction, the trial court’s response to the jury note was not plainly erroneous, because “there was no indication in the jury note that the jury was misinterpreting the court’s instructions or was misconstruing the elements of a crime.” Nor could the Court “discern how appellant’s substantial rights were adversely affected” by failure to give the instruction he requested on appeal.

Of Note:

• Judge Beckwith dissented from the Court’s Brady holding, arguing that the “materiality determination . . . is genuinely hampered by the fact that the trial court did not review the evidence as potential Brady material and that we do not know what that evidence is.” She would have remanded to the trial court “with instructions that it place the North Carolina file in the record and assess the file’s materiality under Brady,” permitting the Court of Appeals “to conduct a de novo review of the trial court’s appraisal of the Brady information with the benefit of the actual evidence.”

• The dissent observed that the defense could not “have waived his right to challenge the government’s failure to disclose a file when he did not know what the government knew,” and noted that the government’s Brady obligation to disclose information favorable to the defense “exists with or without a request by the defendant.”  MW

Read full opinion here.