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.

Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:

• In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    

• The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Read full opinion here.

The “Bias-Related Crime” Enhancement Can Apply to Any Crime on the Books

Girma Aboye v. United States (decided August 6, 2015)

Players: Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation. Opinion by Judge Glickman. Fletcher P. Thompson for Mr. Aboye. Trial judge: Robert E. Morin.

Facts: Mr. Aboye and his dog, Tarzan, had a tense relationship with the complainants, a gay couple. On one occasion when the couple approached Tarzan with their own dog, Mr. Aboye told them Tarzan “doesn’t like homosexuals.” A few months later, during a verbal exchange with the couple, Mr. Aboye “heatedly yelled, ‘Shut up you faggots[;] I’m going to kill you with my dog. I’m going to have my dog kill you.’” The complainants reported that Tarzan, a brindled pit bull mix, was not acting aggressively, and the officer who later arrested Mr. Aboye testified that he found Tarzan to be friendly and nonthreatening. After a bench trial, Judge Morin found Mr. Aboye guilty of bias-related threats to do bodily harm.

Issue 1: The sentencing enhancement for “bias-related crime” applies to “a designated act that demonstrates an accused’s prejudice based on the actual or perceived . . . sexual orientation . . . of a victim of the subject designated act.” D.C. Code § 22-3701(1). A “designated act” is defined as “a criminal act, including arson, assault, burglary, [and twenty-two other enumerated crimes].” D.C. Code §22-3701(2). Can the enhancement apply to threats, even though threats is not on the list of “designated act[s]”?

Holding 1: Yes. Elsewhere, the D.C. Code provides that “unless specifically provided otherwise: . . . . The word[] . . . ‘including’ mean[s] . . . ‘including, but not limited to.’” D.C. Code § 1-301.45(10). Thus, the plain language of the bias-related crimes law — like its statutory context and legislative history — indicates that the list of “designated act[s]” is not exclusive. The court held that “the term ‘designated act’ in D.C. Code § 22-3701(2) means any criminal act recognized under D.C. law.”

Issue 2: Was there sufficient evidence to prove the second element of threats, that Mr. Aboye’s words could convey fear of serious bodily harm or injury to the ordinary hearer?

Holding 2: Yes, in spite of Mr. Aboye’s argument that the evidence showed Tarzan to be a real pussycat, he was “no miniature lap dog,” and had already been described to the complainants as “hostile to homosexuals.” In any event, “even if Tarzan was friendly and tame, appellant’s death threat was not.” FT

Read full opinion here.