First-degree burglary statute covers the common hallway of an occupied residential apartment building.

Hallway by Jack Zalium, licensed under Creative Commons

Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)

• Holding 1: Proof that appellant pushed complainant at knife-point through the entrance and into the common hallway of her multi-unit row house apartment building was sufficient to establish that he “enter[ed] . . . [a] dwelling” as required for the crime of first-degree burglary, even though appellant did not enter into any apartment before he fled the scene. A “dwelling” includes “any enclosed space used for human habitation,” such as a residential apartment building. Slip Op. at 9. The common hallway at issue, located behind a locked door, was “in no way . . . so open to the public at large as to be considered outside” and was therefore “part of the private dwelling.” Id. at 12.
• Holding 2: The evidence presented was sufficient to establish kidnapping, notwithstanding withstanding appellant’s argument that the only detention of complainant was brief and incidental to the assault and robbery complainant suffered. Id. at 14-15.
• Holding 3: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Id. at 20.
• Holding 4: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Id. at 24-25.

Read the full opinion here.

Relevant portions of this post have been added to Expert Testimony section and Physical Evidence section of The (Early) Year in Review (Part 2), as well as the Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

WCC

DCCA: Barring notices cannot bar DCHA residents and household members from areas that their leases permit them to access.

Signspotting by K@ja, licensed under Creative Commons

Foster v. U.S., 17-CM-994 (decided November 7, 2019)

• Holding: Evidence that appellant violated a notice purporting to bar him from three out of six buildings in the DCHA development where he lived with his mother was insufficient to establish the crime of unlawful entry, where appellant’s mother’s lease apparently granted appellant access to the entire development, including all common areas and grounds associated with all buildings. Although special police officers testified that the development had been subdivided into three-building sections for purposes of issuing and enforcing barring notices, and that appellant had been barred from the section where he did not reside, the alleged subdivision was not reflected in appellant’s mother’s lease agreement, which listed appellant as a household member and which was further binding on DCHA. Accordingly, the government failed to prove that appellant was an “unauthorized person” subject to barring on the property listed in the notice, i.e., that he was not a “member of [a] resident’s household” on the property in question. 14 DCMR § 9600.2.

Read the full opinion here.

A copy of this post has been added to Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

- WCC

Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

Holdings:
1. In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.


Of Note: 
- The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.

DCCA: Social security numbers may fall within Miranda’s “routine booking exception”; the government need not prove an unregistered firearm is not antique unless the record suggests that it is.

(Image of Social Security Cards from Wikimedia Commons)

Toler v. United States (decided December 20, 2018)

Players: Associate Judges Beckwith and McLeese, Senior Judge Steadman. Opinion by Judge Steadman. Ian A. Willams for Mr. Toler. Trial Judge: Hon. Maribeth Raffinan.

Facts: While executing a search warrant on Mr. Toler’s apartment, members of the Gun Recovery Unit handcuffed him and, without obtaining a waiver of his Miranda rights, asked for his name, date of birth, phone number, and social security number. Mr. Toler provided this information and volunteered that he was a former U.S. Marine. During their search, officers seized three firearms, assorted ammunition, and Mr. Toler’s apartment lease. An indictment later charged him with, inter alia, possession of an unregistered firearm and unlawful possession of a firearm by a person previously convicted of a crime punishable by more than one year of imprisonment. A jury found Toler guilty of the latter offense, based on his un-Mirandized statements to police and a certified copy of a U.S. Marine Corps court martial conviction, stating that someone with the name and social security number that Toler provided to police had been convicted of a crime punishable by more than one year imprisonment. The same name and social security number also appeared on the lease seized from Mr. Toler’s apartment.

Issue 1: Whether the social security number provided by Mr. Toler was subject to suppression absent a valid waiver of his Miranda rights?

Holding: No. Miranda only applies to interrogation, which includes express questioning and words or actions reasonably likely to elicit an incriminating response but excludes “routine booking questions,” such as those related to identity. Like name and date of birth, social security number is “a routine means of identifying oneself.” Slip Op. at 8. Since questioning is allowed as to these other identifiers, “it is difficult to see any meaningful distinction that would generally prohibit a request for a social security number.” Id. at 8-9. While such questions may trigger Miranda if they are “reasonably likely to elicit an incriminating response,” the question here does not fall into that category. Id. at 9. That the question was asked on the scene rather than at booking, without more, does not transform it into interrogation. See Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc)

Of Note: An exception to the general rule that questions about suspect identity are not “reasonably likely to elicit an incriminating response” may exist where the information is relevant to an element of a crime other than identity, e.g., the suspect’s date of birth in a statutory rape case. Slip Op. at 8-9 (citing State v. Locklear, 531 S.E.2d 853 (N.C. Ct. App. 2000)).

Issue 2: Whether Mr. Toler’s conviction for possessing an unregistered firearm required proof that the firearm was not “antique?”

Holding: No. Although the D.C. firearm registration requirement excludes firearms manufactured in or before 1898, antiquity is an affirmative defense that the government need only disprove when there is some evidence in the record to support it. Courts have uniformly interpreted the D.C. statute’s federal counterpart in the same manner. That the registration requirement excludes four other firearm categories further supports that the government need not disprove each one during its case in chief. To do so would be impracticable. As there was no evidence that the firearms seized from Mr. Toler’s apartment were antique, the government had no burden to prove otherwise. WC

Read the full opinion here.

To be punishable under D.C. Code § 22-1321(a)(1), "disorderly conduct" must cause actual, subjective fear of harm.

 Edvard Munch, The Scream, 1893, National Gallery Oslo

Solon v. United States (decided Nov. 29, 2018)

Players: Associate Judges Fisher, Thompson, and Beckwith. Opinion by Judge Thompson. Thomas C. Paynter for Ms. Solon. Trial Judge: Juliet J. McKenna.

Facts: A judge found Ms. Solon guilty of disorderly conduct in violation of D.C. Code § 22-1321(a)(1), which makes it a crime “to intentionally or recklessly act in such a manner to cause another person to be in reasonable fear that a person or property in a person’s immediate possession is likely to be harmed or taken.” Ms. Solon’s charges arose out of her interaction with climate march participants in April 2017. Holding a “TRUMP: Make America Great Again” sign, Ms. Solon tried to push her way between marchers, who were standing arm-in-arm. When she was not pushing, Ms. Solon walked from side to side, while the marchers looked on impassively. Others laughed or took photos of Solon. At one point, someone appeared to bump into her on purpose. March staff testified that her behavior was “scary” and “aggressive” but could not identify any objective on her part beyond getting between the marchers. Ms. Solon told an officer at the scene that her aim was to impede the march.

The trial court found Ms. Solon guilty of violating D.C. Code § 22-1321(a)(1) by “ramming her body into individuals who . . . were standing peacefully, expressing their views[.]” In so doing, the court rejected Ms. Solon’s argument that § 22-1321(a)(1) required the victim’s actual, subjective fear of injury. The court found that although the government had not proven actual, subjective fear, conduct sufficient to create objectively reasonable fear of immediate bodily harm would suffice for conviction. In the court’s view, Ms. Solon’s “demeanor,” “agitation,” and “volatility” met this standard.

Issue 1: Whether a conviction for disorderly conduct under D.C. Code § 22-1321(a)(1) requires proof that the charged conduct caused actual, subjective fear of harm?

Holding: Yes. On its face, D.C. Code § 22-1321(a)(1) appears to require proof that the perpetrator’s conduct “cause[d] [someone] to be in . . . fear.” Legislative history confirms this interpretation. When a subcommittee proposed that § 22-1321(a)(1)’s general prohibition on intentional or reckless conduct made a separate anti-jostling provision of the statute redundant, the Judiciary Committee disagreed, noting § 22-1321(a)(1)’s distinct requirement for the victim’s actual, subjective fear of harm. “In light of th[is] legislative history, . . . § 22-1321(a)(1) requires proof that the defendant’s charged conduct placed another person in fear of harm to his or her person.”

Issue 2: Whether Ms. Solon’s conviction may stand?

Holding: No. The trial court’s verdict relied solely on its erroneous determination that the government did not have to prove that Ms. Solon’s conduct caused actual fear among the demonstrators. Although, ordinarily, the Court would remand for a correct application of the statute, the Court will not do so here because the trial court already found that Ms. Solon’s behavior did not place anyone in fear of harm. This finding was neither plainly wrong nor without evidence to support it— none of the marchers manifested any fear of Ms. Solon, who by herself; rather, some were laughing; police were nearby; and witnesses confirmed that she appeared to lack any objective beyond getting in between the marchers. WC

Read the full opinion here.

DCCA: Neither the Second Amendment nor Wrenn bars CPWL prosecution of those with prior felony convictions.

Hooks v. United States (decided August 30, 2018)

Players: Associate Judges Fisher, Beckwith, and McLeese. Opinion by Judge Fisher. Donald L. Dworsky for Mr. Hooks. Trial Judge: Kimberly S. Knowles.

Issue 1: Whether the evidence suffices to support appellant’s convictions for unlawful possession of a firearm (UPF), carrying a pistol without a license (CPWL), possession of an unregistered firearm (UF), and unlawful possession of ammunition (UA)?

Holding 1: Yes. The evidence showed that as police were approaching appellant, he walked over to a metal dumpster; that the officers heard something metal hit the dumpster; and that appellant took his arm out of the dumpster and walked away. The officers found a loaded pistol in the dumpster and nothing else that would account for the noise they heard. When they pursued appellant, he ran. This evidence suffices to show beyond a reasonable doubt that appellant possessed the loaded pistol. Appellant stipulated to the remaining elements, including his prior felony conviction, at trial.

Issue 2: Whether the appellant’s CPWL conviction violated the Second Amendment?

Holding 2: No. Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) did not invalidate the CPWL statute; it only invalidated (and enjoined enforcement of) the requirement to demonstrate “good reason to fear injury” or some other “proper” need to carry a pistol before obtaining a license to do so. That requirement is severable from the provision that penalizes carrying a pistol without a license and requires licensees to be otherwise “suitable” to obtain a license. Appellant was not “suitable” and further had no Second Amendment right to carry a pistol outside of his home because he had been convicted of a felony. WC.

Read the full opinion here.

Time’s Up on Those Contempt Charges!

Brookens v. United States (decided April 5, 2018)

Players: Associate Judges Thompson and Easterly, and Senior Judge Ferren. Opinion by Judge Easterly. Johnny Barnes for Mr. Brookens. Trial Judge: José M. López

Facts: In 1986, appellant was charged and convicted of several counts of contempt based on his unauthorized practice of law in violation of then-existing Rule 49. At the time same that it convicted appellant of some of the charges brought against him, the Court acquitted appellant of those counts which alleged he had engaged in the unauthorized practice of law by representing others before a District agency. The Court read then-existing Rule 49 to prohibit only the unauthorized representation of others before courts, not agencies. The Court then issued an injunction prohibited appellant from (1) representing others before any court in the District, (2) holding himself out as a lawyer in the District, (3) engaging in the practice of law in the District, and (4) engaging in any other unauthorized practice of law prohibited by Rule 49.

In 1998, Rule 49 was revised to include a prohibition on the unauthorized practice of law before any District agency.

In 2011, appellant was charged with being in contempt of the 1986 injunction, stemming from his representation of others (namely, a tenant association to which he belonged) before District Agencies. Of the four charges that proceeded to trial, two charged conduct occurring in 2005. Two remaining charges alleged he had violated the 1986 injunction by violating Rule 49 and by representing others before a District agency—on at least one occasion between January 1996 and June 2008. The trial court found appellant guilty of all four counts. The Court of Appeals reversed.

Issue 1: Does D.C. Code §23-113(a)(5), which sets forth a three-year catchall statute of limitations for misdemeanor offenses apply to charges of criminal contempt?

Answer: Yes. The Court holds explicitly for the first time that criminal contempt is a crime just like any other and therefore criminal contempt charges prosecuted in Superior Court are crimes subject to the jurisdictional limitations for the District’s statute of limitations.

Furthermore, each individual contemptuous act is its own offense, and the government may not circumvent the statute of limitations by charging contempt as an on-going crime covering an extension period of time, as was done in this case. The statute of limitations begins to run from the time of the specific contemptuous conduct.

Issue 2: Was there sufficient evidence to support appellant’s convictions for conduct that was not time-barred by the statute of limitations where the 1986 injunction did not bar him from representing others in front of agencies (as opposed to courts).

Answer: No. At the time the Court issued the 1986 injunction, it explicitly held that the then-existing Rule 49 did not cover conduct before government agencies, and therefore acquitted appellant of all conduct occurring before such agencies, as opposed to in Superior Court. The Court holds now that—unless expressly worded to incorporate future changes in an existing law—an injunction must be read to reflect the law as it existed at the time of the injunction. Thus, that Rule 49 has since been amended to include a prohibition on the unauthorized proactive of law before agencies as well as courts, does not render appellant’s actions contemptuous of the 1986 injunction. CP

Read the full opinion here.

DCCA: The floor of a public restroom may be a "hidden observation post" for purposes of attempted voyeurism.

Valenzuela-Castillo v. United States (decided March 8, 2018)

Players: Associate Judges Thompson and Easterly and Senior Judge Farrell. Opinion for the Court by Judge Farrell. Dissenting Opinion by Judge Easterly. Karl R. Tetzlaff for Appellant. Trial Judge Patricia Broderick.

Facts: Following a bench trial, appellant was found guilty of attempted voyeurism. Viewed in a light most favorable to the conviction, the evidence showed that the complainant encountered appellant on the way to the women’s restroom in a restaurant sometime after midnight. Appellant was leaving the men’s restroom with a broom and dustpan. The complainant had just finished eating, and the restaurant had few other customers. Surveillance footage showed appellant looking at the complainant as she went in the women’s restroom.

The restroom was unoccupied. It contained multiple stalls separated by floor-to-ceiling partitions. The stall doors were approximately one foot off of the ground. The complainant occupied the last stall. After she had been in there for some time, she got an uneasy feeling, looked down, and saw appellant’s face under the door. She had not heard him knock or enter. Upon seeing him, she screamed and cursed and told him to leave. He got up and ran out, saying nothing. The trial court found appellant guilty of attempted voyeurism by apparent reference to statutory provision making it illegal “to occupy a hidden observation post . . . for the purpose of secretly or surreptitiously observing an individual who is . . . [u]sing a bathroom or rest room.”

Issue: Did appellant attempt to “occupy a hidden observation post” within the meaning of the voyeurism statute?

Holding: Yes. Although the statute does not define “hidden observation post,” appellant occupied such a post “by any common-sense understanding” because he “staged his behavior” to avoid detection: he “checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated not to draw attention.” Black’s Law Dictionary defines “observation post,” for military purposes, as any “position” from which a target can be watched. This broad definition is consistent with the intent expressed by the Mayor to the City Council before the statute was passed. Contrary to appellant’s argument, this definition would not include nearly all public areas because it is based on the steps appellant took, albeit ineffectively, to ensure that his vantage point was “private.” The dissent’s argument that appellant was engaged in simple invasive viewing likewise ignores these steps.

Dissent: No. The bathroom floor was not a “hidden observation post” because it allowed appellant to be seen by the complainant and anyone who came in the bathroom. The majority’s attempt to read “hidden observation post” to cover this circumstance ignores that simple invasive viewing was already prohibited by the disorderly conduct statute when the Council passed the voyeurism statute. The Council’s intent in creating a separate voyeurism offense was to punish conduct that went beyond simple invasive viewing, such as the use of surveillance devices or specialized “hidden observation posts.” Although the Council later redefined disorderly conduct to exclude simple invasive viewing, the Court cannot use voyeurism to fill the resulting gap. The majority’s interpretation of “observation post” to mean body positioning is inconsistent with the common definition of “post” as a fixed location and risks punishing innocent activity, such as looking under a stall to ensure it is unoccupied.

Of Note:
The Court has held that “conduct[] designed to enable appellant to observe the victim while himself unseen [may meet] the statutory requirement that [the defendant] occupy a hidden observation post,” or, in any case, that the requirement he attempt to do so. Whether such conduct exists in a given case is a fact-specific inquiry. WC.

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.

Convictions set-aside under the Youth Rehabilitation Act may still trigger repeat-offender sentencing enhancement.

(Singer/Songwriter Richard Marx of “Repeat Offender” Fame)

Wade v. United States (decided November 16, 2017)

Players: Associate Judges Fisher, Thompson, McLeese. Opinion by Judge McLeese. Trial Judge: Lynn Leibovitz. April E. Fearnley for Appellant.

Facts: On October 8, 2015, police received an anonymous 911 call. The caller reported seeing a man with a gun in his waist in the 1200 block of 7th Street NW. This man was walking with another man. Police responded and saw two men matching the descriptions about a block away from where the caller had said. The defendant, Mr. Wade, matched the description of the man who was reported to have had a gun. The officers pulled their police car alongside the two men, who both began running. Officer Brown gave chase and briefly lost site of Mr. Wade as he ran around a shed. Shortly after, he regained sight of Mr. Wade and apprehended him. The officer conducted a pat down but did not find a gun.

However, a civilian eyewitness reported seeing a man matching Mr. Wade’s description toss a gun near the same shed behind a dumpster. (At trial, the civilian said he did not actually see the gun tossed, which he had testified to at the suppression hearing, but only that he saw the man run past with someone else and then saw a gun in the air). An officer looked in the area and saw a gun in plain view. Police then conducted a showup and the witness identified Mr. Wade as the person who threw the gun. Police placed Mr. Wade under arrest and a search incident to arrest recovered six .357 caliber bullets. Mr. Wade was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1:  Did police have sufficient reasonable suspicion to support the initial stop?

Holding: Yes. The Court cited the fact Mr. Wade was observed near the location the 911 caller had said and matched the description from the caller (black male, navy blue shirt, tan hat, blue jeans, walking with another black male wearing a light green shirt). Plus, when the officers arrived, Mr. Wade fled and was observed placing his hand near his waist, which was where the 911 caller said he saw the gun. The Court concluded such facts were sufficient for reasonable suspicion.

Issue 2: Was the showup identification procedure unduly suggestive?

Holding: No. The Court noted that all showup identifications involve some suggestivity but that “something more egregious than mere custodial status is required to establish” impermissible suggestivity. Here, Mr. Wade was in handcuffs, with an officer on either side of him and standing between two police cars. The Court concluded that did not rise to the level of impermissible suggestivity. The Court stated that the fact one of the officers on the scene had a “passing familiarity” with the eyewitness did not render the identification procedure unduly suggestive.

Issue 3: Was the evidence sufficient to establish that Mr. Wade possessed the gun?

Holding: Yes. Mr. Wade cited to the eyewitness’s testimony at trial where he said he did not actually see Mr. Wade throw the gun and saw two people run behind the shed to support his argument that the evidence was insufficient to show he ever had the recovered gun. The Court disagreed. The Court cited the 911 call and that Mr. Wade matched the description of the person observed with a gun, that he fled when police arrived and was observed with his hand in his waistband area, the witness said he saw a gun tossed behind a dumpster at the same time Mr. Wade ran behind the dumpster, and Mr. Wade possessed bullets that matched the caliber of the gun recovered.

Issue 4: Did the trial court err in imposing a three-year mandatory minimum sentence on the count of unlawful possession of a firearm?

Holding: No. UPF prohibits possession of a firearm by persons with a prior conviction punishable by more than one year and provides for a mandatory minimum sentence for anyone who violates the statute and has previously been convicted of a crime of violence other than conspiracy. Mr. Wade had a prior conviction for attempted robbery, which is punishable by more than one year and which meets the definition of crime of violence. However, he contended that his conviction could not be used to impose the mandatory minimum because it had been set aside under the Youth Rehabilitation Act (YRA). The Court disagreed. The Court first cited the YRA itself, which explicitly authorizes a set-aside conviction of attempted robbery to be used to support a conviction. Mr. Wade tried to draw a distinction between using a set-aside conviction to provided a needed element for a conviction as opposed to using it to impose a mandatory sentence. Though the Court agreed that the YRA was silent as to that question, it did not agree that the YRA supported such a distinction. The Court believed that the legislative history of the YRA supported its conclusion that no such distinction exists. Accordingly, the trial court correctly determined that Mr. Wade was subject to a three-year mandatory minimum for his UPF conviction.

Of Note: 

• The Court did not address Mr. Wade’s argument that police exceeded the scope of a lawful investigative detention by detaining him for between forty-nine and fifty-three minutes before conducting the showup identification because the Court concluded that police had probable cause to arrest when they recovered the gun in the area where the witness had said it had been thrown.
• The Court noted that this case had a “procedural wrinkle” of whether it can rely on evidence that was developed at trial that contradicted evidence at the suppression hearing to reverse a decision of the trial court when the losing party failed to renew the motion to suppress based on the new evidence at trial. The Court concluded that in this situation the trial evidence would not have changed the outcome of its decision on the suppression hearing, but attorneys should remember to renew any suppression if additional evidence is developed at trial that could alter a trial court’s pre-trial decision. BM

Read the full opinion here.

Using flame to repel a trespasser is not necessarily unreasonable.

Jones v. United States (decided November 9, 2017)

Players: Associate Judges Glickman and Easterly. Senior Judge Pryor. Opinion by Judge Glickman. Rupa Ranga Puttangunta for the appellant. Trial Judge Ann O’Regan Keary.

Facts: Appellant, a homeless woman, regularly slept on a cardboard box on the floor of the McPherson Square metro station. One night, she set her box close to homeless man, who told her that he “didn’t want her there” and proceeded to kick appellant and put his feet on appellant’s box after appellant lay down. Appellant asked several times for the man to remove his feet and when he would not, appellant lit the corner of the box closest to appellant’s feet on fire. The box did not burst into flame, but rather burned slowly like a cigarette. When the man did not move his feet, appellant extinguished the fire so that the man’s feet would not burn. Following a bench trial, a judge found appellant guilty of simple assault and attempted possession of prohibited weapon. The judge rejected appellant’s defense of property justification, reasoning that the force applied—fire—was not reasonable.

Issue: Was there sufficient evidence to support appellant’s convictions and overcome appellant’s defense of property justification? Was appellant’s use of force in lighting her cardboard box on fire unreasonable?

Holding: No. Appellant repeatedly requested that the man move his feet before igniting the box, which was for legal purposes her bed. No officers were around to help. Appellant neither harmed nor attempted to harm anyone in the process. The fire was too small and slow progressing to pose a risk to the trespasser.

Of note: Jones marks the second time in 2017 that the Court of Appeals rejected the notion that a certain kind of force (fire) was so unreasonable as to negate a justification defense. In the first case, Parker v. United States, 155 A.3d 835 (D.C. 2017), the Court found that spitting was not an unreasonable response to being threatened and spat upon. These cases reaffirm the government’s burden to prove that the force applied in a given case was not reasonably necessary under the circumstances as they appeared to the defendant. 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.

Concussion Protocol: (Head) Injury + Manifest Risk of Grave, Long-Term (Head) Injury + Diagnostic Testing to Evaluate the Danger and Need for Treatment = Significant Bodily Injury

Cheeks v. UnitedStates (decided September 7, 2017)

Players: Glickman and Fisher, Associate Judges, Reid, Senior Judge. Opinion for the Court by Judge Glickman. Majority opinion by Judge Fisher (joined by Judge Reid). Dissenting opinion by Judge Glickman. PDS for appellant. Trial Judge Yvonne Williams.

Facts: Appellant was prosecuted for assault with significant bodily injury (ASBI) and other offenses in connection with the stabbing and beating of the complainant. The complainant testified that he was walking home one evening, when a man got out of a truck, accused the him of stealing a cell phone, and stabbed him with a knife. The complainant fled around the corner, where he encountered appellant and an unknown second man, who, rather than helping, punched the complainant in the face and head. The first, knife-wielding man caught up and stabbed the complainant from behind. The complainant eventually fell, whereupon appellant and the unknown second man kicked and stomped him.

When the three abandoned their attack, the complainant called the police and was taken to the hospital. The treating physician testified that upon arrival, the complainant required stitches, staples, and antibiotics for his four stab wounds, as well as pain relievers and diagnostic tests for internal injuries, including CAT scans that revealed a nasal fracture but no brain injury. The complainant was discharged four hours after arrival and had no follow-up treatment.

The government prosecuted appellant for armed ASBI under the theory that he aided and abetted the stabbing but also asked for an instruction on unarmed ASBI, in case it had not proved that appellant was aware of the stabber’s knife. Appellant argued that without the stab wounds, the complainant’s injuries were not serious enough to be “significant.” The government argued that the CAT scan made the non-puncture injuries “significant.” The court agreed and instructed on unarmed ASBI.

The court initially instructed the jury on the mens rea required to aid and abet armed ASBI but failed to instruct on the mens rea for aiding and abetting unarmed ASBI. During deliberations, the jury sent a note asking the court to “clarify instructions on the specifics of aiding and abetting, specifically for the [unarmed] assault w[ith] significant injury.” Appellant asked the court to instruct consistent with its armed ASBI instruction, that for the unarmed version, “regardless of whether the defendant [is charged] as an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with the intent or knowledge.” The court refused, stating that it was “in the instruction already” and instead instructed the jury that “Instruction 3.2 aiding and abetting applies to every offense with which the defendants are charged.” Unbeknownst to the parties, at the top of the jury’s note, someone had crossed out a question: “Does the aiding & abetting apply to [unarmed] assault w/ significant injury?”

The next day, after further deliberation, the jury found appellant not guilty of armed ASBI but guilty of unarmed ASBI.

Issue 1 (Opinion by Judge Glickman): Was there was sufficient evidence to instruct the jury on unarmed ASBI?

Holding 1: Yes. “[A]lthough a ‘significant bodily injury’ is one calling for professional medical treatment to prevent long-term physical damage or avert severe pain, it also may be an injury that poses a manifest risk of such harm and requires diagnostic testing to evaluate the danger and need for treatment – even if testing reveals that treatment is unnecessary.” Slip Op. at 13-14. The complainant’s treating physician described extensive bodily injuries that required a CAT scan to diagnose brain damage, broken bones, and internal injury. As in Blair v. United States, 114 A.3d 960 (D.C. 2015), this testimony supported a finding that the injuries required diagnostic testing to evaluate the need for treatment.

Issue 2 (Opinion by Judge Fisher): Did the trial court err in responding to the jury note asking it to “[c]larify instructions on the specifics of aiding & abetting[,] specifically for the [unarmed] assault w[ith] significant injury”?

Holding 2: No. The jury could have been seeking clarification on whether the theory of aiding and abetting applied to both armed and unarmed ASBI or, specifically, whether the mens rea for aiding and abetting applied to both offenses. By instructing that “Instruction 3.2 aiding & abetting applies to every offense with which the defendants are charged,” the court effectively addressed both issues. A reasonable jury would have applied the sentence about mens rea from Instruction 3.2 to unarmed ASBI, consistent with the defense’s proposal. The jury also received other, correct instruction on the mens rea required for unarmed ASBI.

Of Note: This opinion recognizes an exception to the rule that “significant bodily injury” excludes injuries for which treatment and diagnosis are ultimately unnecessary, in that “the victim would not suffer additional harm by failing to receive them,” Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013), where an injury poses manifest risk of grave, long-term injury and, as such, requires diagnosis to rule out the need for treatment. Going forward, whether an injury posed manifest risk of grave, long-term injury may depend on the type of injury involved. Notably, this case involved significant head trauma, and in deciding it, the court relies on two others (Blair and Quintanilla) that specifically addressed significant head trauma.

Judge Glickman dissents from the court's opinion as to Issue 2.

WC

Read the full opinion here.

Escape Statute Does Not Cover Fleeing from an Attempted Arrest

Davis v. United States (decided August 10, 2017)

Players: Associated Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Fisher. PDS for Mr. Davis. Trial Judge: John McCabe

Facts: Officers saw Mr. Davis appearing to urinate in public. They approached him, told him to put his hands on the railing, and one officer grabbed Mr. Davis's belt and pants. The officer then told Mr. Davis to put his hands behind his back, but Mr. Davis instead shoved the officer and ran off. Mr. Davis was arrested and charged with escape.

Issue: Did fleeing from an attempted, but not yet completed, arrest violate the escape statute?

Holding: No. The D.C. escape statute prohibits, in pertinent part, escaping from the "lawful custody" of a police officer. D.C. Code § 22-2601(a)(2). The DCCA had previously held in Mack v. United States, 772 A.2d 813 (D.C. 2001), that the escape statute applies to escapes from an officer's physical restraint pursuant to a lawful arrest. However, after reviewing cases from other jurisdictions, the court declined to extend Mack to an escape from physical restraint while attempting to make a lawful arrest. The court noted that a different statute, D.C. Code § 22-405, criminalizes efforts to evade arrest. But Mr. Davis was charged with escape, and that crime he did not commit.

Of Note: Once again, the DCCA rejects the government's attempt to argue that a defendant had "waived" his right to present a sufficiency issue on appeal by failing to renew an MJOA after the close of the defense case. Hopefully the government will get the hint and stop making this argument.

DG

Read the full opinion here.

Leaving After Colliding Statute Requires Drivers to Identify Themselves Without Unreasonable Delay, But Not Immediately

Cherry v. District of Columbia (decided July 27, 2017)

Players: Associate Judges Thompson, Beckwith, and McLeese. Opinion by Judge McLeese.  Matthew J. Peed for Mr. Cherry. Trial Judge: William M. Jackson.

Facts: Appellant appealed his conviction for leaving after colliding in violation of D.C. Code §50- 2201.05c (a)(2). Appellant hit a wall adjacent to a convenience store with his car. After the crash, appellant walked toward the convenience store and then came back to the scene of the crash. Officers arrived shortly after and asked a group of onlookers, including appellant, if they had seen anything, and appellant did not identify himself.

An officer then went to the convenience store and watched the surveillance footage. He recognized appellant as the driver, and began to search for him. Appellant had also walked toward the store but the officer did not see him. The officer was in the basement reviewing footage and admitted he could have missed appellant. Twelve minutes after the officer watched the footage, appellant approached the group, identified himself as the driver, and was arrested.

The trial judge found appellant was required to identify himself immediately to the officers on the scene and failed to do so quickly enough. Appellant was convicted of colliding and leaving.

Issue 1: Was appellant required to provide identifying information to law enforcement immediately?

Answer: No. D.C. Code §50- 2201.05c (a)(2) does not create this obligation. It states in part:

(a) Any person who operates… a vehicle within the District who knows or has reason to believe that his or her vehicle has been in a collision shall immediately stop and:

… 

(2) Where real or personal property belonging to another is damaged…, provide identifying information to the owner… or, where the owner or operator… is not present, provide…identifying information and the location of the collision to law enforcement.

The statute requires that the driver provide identifying information to the owner of the damaged property and only if the owner is not present must the driver provide identifying information to law enforcement.

The trial judge’s understanding was wrong because the statute does not require a driver to “immediately” provide identifying information. The term “immediately” only modifies “stop” and not “provide” because “provide” is too far removed from “immediately.” The court considered the statute’s intervening punctuation, grammatical complexity, and other substantive considerations and held they support this finding.

Issue 2: Can drivers wait as long as they like before providing identifying information, as long as they do not leave the scene?

Answer: No, the statute does not explicitly say when drivers must provide identifying information, but the court held it must be without unreasonable delay. Although the title to the statute is “Leaving after Colliding,” the court declined to interpret the statute to allow a driver to remain on the scene for an extended time while refusing to provide identifying information. The court stated the significance of the statute’s title should not be exaggerated, and should be only be considered when interpreting an “ambiguous word or phrase in the statue.”

The court held the statute not only requires drivers to stop and remain on the scene, but to take further steps while there, including summoning necessary medical assistance and providing identifying information.

Issue 3: Was the evidence sufficient to convict appellant?

Answer: Yes, viewed in the light most favorable to the government, the evidence indicated that: (1) appellant did not identify himself as the driver when asked; (2) appellant promptly walked away from the scene of the collision; (3) the officer did not see appellant enter the store; (4) the store owners did not seem to be aware of the collision when the officer entered the store; (5) the officer could not find appellant after identifying him on the tape; and (6) twelve minutes later, appellant returned to the scene and identified himself. This evidence would permit a rational fact-finder to find that appellant’s delay was unreasonable because he never notified the owner of the wall and instead left the scene for twelve minutes before identifying himself.

The court also held the driver must take affirmative steps to provide identifying information, simply leaving a car at the scene was not enough.

The trial judge’s comments imply he could have been relying on an incorrect understanding of the law, but other bases not considered by the trial court would sustain the conviction. The court vacated the judgment and remanded the case for the trial court to reweigh the evidence, rather than reversing outright. 

AB

Read the full opinion here.

The Term "Parking Area" in POCA Statute Does Not Mean a Parking Lot

Campbell v. United States (decided July 20, 2017)

Players: Associate Judges Beckwith and McLeese, and Senior Judge Belson. Opinion by Judge Beckwith. Vincent A. Jankoski for Mr. Campbell. Trial Judge: Milton C. Lee.

Facts: On June 9, 2014, Officer Poor saw a car parked on an unmarked grassy area between two church parking lots. The car was off, and a towel was draped over a missing rear window. When the officer approached the car, he saw Mr. Campbell sleeping in the driver’s seat and a half-empty bottle of vodka in the center console. Officer Poor woke Mr. Campbell up and asked if he had been drinking. Mr. Campbell admitted that he had a few sips.

At trial, Mr. Campbell was convicted of first-degree theft, unauthorized use of a vehicle, receiving stolen property, and possession of an open container of alcohol (POCA) in a “vehicle in or upon any street, alley, park, or parking area,” D.C. Code § 25-1001(a)(2). On appeal, Mr. Campbell challenged the sufficiency of the evidence for each of the convictions. He argued that the phrase “parking area” in the POCA statute does not include the location in which he was arrested. Based on this statutory claim, he challenged the convictions of theft and unauthorized use of a vehicle by arguing that “the trial court should have suppressed the fruits of the search incident to his unlawful arrest for POCA.”

Issue 1: Is Mr. Campbell’s statutory sufficiency challenge preserved if at trial his motion for judgment of acquittal (MJOA) only focused on his constructive possession of the bottle of alcohol?

Holding: Yes. A general motion for acquittal preserves the full range of sufficiency challenges. At trial, Mr. Campbell presented a specific sufficiency argument instead of a general MJOA. The DCCA expressed doubt that making one specific sufficiency claim renders another sufficiency claim unpreserved, but did not need to decide that. In any event, Mr. Campbell’s sufficiency claim would be reviewed de novo because it is a question of statutory construction.

Issue 2: Does the phrase “parking area” in the POCA statute include the location in which Mr. Campbell was arrested?

Holding: No. The original language of the POCA statute prohibited possession of open containers of alcohol in vehicles in a “parking,” not a “parking area.” Although the term “parking area” is not defined in the statute, the term “parking” is defined as “that area of public space which lies between the property line and the edge of the actual or planned sidewalk which is nearer to such property line, as such property line and sidewalk are shown on the records of the District,” D.C. Code § 25-101(36). This is distinct from the common meaning of parking area that the government advances, which is closer to a parking lot. There was no discussion of a change in meaning when the POCA statute was amended to change “parking” to “parking area.”

Elsewhere in the Code, the Council also uses “parking” and “parking area” interchangeably. The Urban Forest Preservation Act of 2003 defines “public parking” similarly to the POCA statute, but only uses the term “public parking area” throughout the rest of the statute. D.C. Law 14-309 § 102(4). The Council has also demonstrated their ability to use the term “parking lot” when they mean parking lot. D.C. Code § 38-826.05(a); D.C. Code § 7-2509.07(a), (a)(2).

Further, if the term “parking area” were interpreted as distinct from “parking,” subsection (b) of the POCA statute would be rendered meaningless. Subsection (b) currently exempts certain areas of the “parking” from the rest of the statute’s prohibitions. But if “parking” had a different meaning than “parking area,” those area within the “parking” would be excluded from the statute’s prohibition.

When there is ambiguity in the statutory construction of a criminal statute, the rule of lenity requires the court to construe the prohibition narrowly. Therefore, “parking area” must be given the less expansive definition, and must be construed as interchangeable with “parking.”

Finally, the government didn't argue that Mr. Campbell was found in the “parking” within the meaning of the statute. Instead, it argued that Mr. Campbell was on public property. However, it does not matter whether Mr. Campbell was on public property if that public property is not one of the enumerated places covered by the POCA statute. The Council has shown that it is able to ban activities in all public places if it so chooses. D.C. Code § 22-1312.

The DCCA reversed Mr. Campbell’s conviction and remanded to the trial court. It also remanded to allow the court to vacate Mr. Campbell’s conviction for receiving stolen property.

Of Note: The Court upheld Mr. Campbell’s convictions for first-degree theft and unauthorized use of a vehicle. In footnote 13, the Court held Mr. Campbell’s suppression arguments on these convictions were waived, because the statutory argument on which they were based was not raised at trial. The government moved to vacate the conviction for receiving stolen property after Mr. Campbell argued that conviction contradicted his conviction for first-degree theft. 

LS

Read the full opinion here.

Sexual Assaults in Taxi Cab Not Sufficiently Similar to Prove Identity

Tornero v. United States (decided June 22, 2017)

Players: Associate Judge Glickman and Senior Judges Washington and Reid. Opinion by Judge Washington. Trial Judge Ronna L. Beck. PDS for Mr. Tornero.

Facts: Appellant was convicted of various charges involving three sexual assaults, all of which occurred in the back seat of a taxi cab with rear doors that would not open from the inside.

The first victim, R.G. was assaulted in the middle of the day, by a taxi driver who had picked up her and her four-year-old daughter. After driving to a secluded location, the driver forcibly moved the child to the front seat, and moved to the back where he forced R.G. to perform oral sex. She and her daughter escaped out the front door of the cab. R.G. never identified Appellant, either out of court or in court, although she did provide the police with a description from which they produced a composite sketch.

N.R. was assaulted when a taxi driver drove her to a warehouse in the District against her will, threatened her with a knife and gun, told her to remove her clothing, and forced her to have vaginal intercourse. He then drove her to Maryland, where he had picked her up, and released her in a parking lot. DNA recovered from N.R.’s body was identified as Appellant’s.

C.A. was assaulted after a night in which she had become very intoxicated at a club in D.C. She left the club at about 1:00 am. She awoke in the back seat of a taxi cab, lined with news papers. She saw the door near her feet was open and a person standing there, but then became unconscious again. When she awoke again, she heard a man in the front of the cab tell her he would be back in 30 minutes, and something about the metro opening. She felt pain in her vaginal area, and her purse (but not her cell phone) was gone. The rear doors would not open, but she got out of the taxi and was helped by a passer-by. She was in Virginia. DNA recovered from C.A. was identified as Appellant’s.

Cell tower data showed that C.A. had been transported from the club in the District to Maryland, but then several hours later showed her at approximately the same location in Virginia from 6:15 am to 7:38 am (when she called 911). Cell tower information placed Appellant near the club in the District at around 9:47 pm, and near the location in Virginia around 6:40 am.

Issue 1: Did the trial court err in denying Appellant’s motion to sever?

Answer: Yes, the court erred as a matter of law (1) when it allowed evidence from the N.R. and C.A. cases to prove appellant’s identity in the R.G. case, and (2) when it allowed evidence of the R.G. case into the N.R. and C.A. cases.

First, the three cases did not fit either the identity or common scheme or plan exceptions to the prohibition on other crimes evidence, such that the N.R. and C.A. cases (where DNA evidence established identity) would be admissible to prove identity in the R.G. case. Although all three women were sexually assaulted in the back seat of taxi cabs whose rear doors would not open, the descriptions of the assailant’s face and accent were different, there was nothing distinctive about the way the sexual assaults were accomplished, the use of weapons varied, one victim was accompanied while the others were alone, and two attacks took place during the day and one at night. The attacks also occurred over the course of three years, in different parts of the city. Finally, because virtually nothing was known about the attack against C.A., because she was unconscious when it occurred, the Court found that it was “inhibited” from conducting the necessary analysis.

Second, because there was no identification in the R.G. case (discussed further below), the government could not establish that Appellant had committed that assault by clear and convincing evidence, rendering it inadmissible in the N.G. and C.A. cases.

Issue 2: Was there sufficient evidence to convict Appellant of the R.G. assault.

Answer: No. There was no in court or out of court identification of Appellant as R.G.’s assailant, and no physical evidence tying him to the assault. The Court rejected the government’s argument that the trial court’s finding that the composite sketch prepared by the police in R.G.’s case and the composite sketch prepared by the police in N.R.’s case looked similar was enough to support the verdict, citing In re R.H.M., 630 A.2d 705 (D.C. 1993) for the proposition that the a witness’s claim a defendant looks “familiar” is not enough to support a conviction.

Issue 3: Did the trial court’s severance error prejudice Appellant as to his convictions for assaulting N.R.

Answer: No. The combination of the DNA evidence and N.R.’s testimony were overwhelming, such that the error was harmless.

Issue 4: Did evidence in the C.A. case establish jurisdiction in the District.

Answer: No. Based on the government’s evidence, which did not establish that Appellant and C.A. were ever in the District at the same time, the jury would have had to speculate that Appellant was the individual who transported C.A. from the District to Maryland, rather than having encountered her later in Virginia.

Of Note: The Court also rejected the government’s argument that so long as Appellant formed the intent to commit sexual assault while in the District, that would be sufficient to give jurisdiction over a sexual assault committed elsewhere. Second degree sexual assault does not require premeditation, but rather focuses on the defendant’s mental state at the time the assault takes place. CP

Read the full opinion here.

“It’s not evidence tampering. . . . I was hiding evidence of a crime that police didn’t know about yet!”

Offutt v. United States, (decided April 6, 2017)

Players: Associate Judges Thompson and McLeese, Senior Judge Ferren. Opinion by Judge McLeese. Thomas D. Engle and Sharon L. Burka for appellant. Trial Judge Todd E. Edelman.

Facts: Mr. Offutt was shot by a neighbor outside of his apartment following an altercation on August 12, 2013. Evidence showed that during the altercation, Offutt retrieved the gun from his apartment but was disarmed and shot with it. A witness flagged down two officers and reported the incident. When police arrived, Offutt reported that he had been shot. The officers called an ambulance that took Offutt to the hospital (but not before he punched his neighbor in the face, saying “that’s the [expletive] who shot me”).

At the hospital, a detective told Offutt that police were getting a warrant to search his apartment. Later, Offutt went to the police station and complained about being barred from his apartment. A detective told him he would not be allowed in until a search warrant could be executed.

Police executed their warrant on the afternoon of August 13. They discovered that a large glass door leading to the balcony had been shattered and a screwdriver lay next to an access panel on a wall in the back bedroom. There were also signs (debris and marks) that something had been dragged across the floor.  Offutt’s upstairs neighbor (not involved in the shooting) testified that late on the night of August 12, he heard glass shatter, went out on his balcony, looked down, and saw Offutt. He saw Offutt again later that morning.

Offutt testified that his neighbor pulled the gun during their altercation. Offutt also testified that he weighed over 300 pounds and had injured his neck and back just before August 12, and that he had a plate in his arm that prevented him from doing a pull-up or scaling his balcony. Offutt did not tell the physicians treating his gunshot wound about this injury. A jury found Offutt guilty of simple assault and tampering with evidence but acquitted him of numerous weapon offenses.

Issue 1: Whether the evidence was sufficient to support Mr. Offutt’s conviction for tampering with evidence, given the lack of evidence as to what he tampered with.

Holding 1: Yes. A person is guilty of tampering if, knowing or having reason to believe an official proceeding has begun or knowing that one will likely be instituted, that person conceals or removes an object with the intent to impair its availability for use in the proceeding. The jury could have reasonably found that Offutt broke into his apartment and removed something. It could have also inferred that Offutt acted with intent to prevent police from finding something that could be used in the investigation and prosecution of the shooting. Offutt was shot outside of his apartment and knew he was not allowed in until after police searched; still, he broke in to remove something in the middle of the night. Although Offutt could have wanted to take something unrelated to the incident, there is no indication that he did, given the risk required to get in. Evidence need not rule out every possible inference of innocence to be sufficient.

Issue 2: Whether the trial court reversibly erred by allowing the prosecution to cross-examine Mr. Offutt about his attorney’s failure to introduce medical records related to his physical therapy.

Holding 2: No. Assuming error, it was harmless under Kotteakos. The government permissibly cross-examined Offutt on his failure to inform the physicians who treated him for his gunshot wound of his alleged accident, injury, or physical therapy. The government was allowed to draw attention to the absence of records corroborating the injury.

Of Note: 
The rule announced here—that in order to prove tampering, the government need not “necessarily” prove what evidence was concealed or removed—is best understood in light of the unusual facts of this case. Offutt was arguing that the government had failed to rule out the possibility that he broke into his apartment to conceal or remove something illegal but unrelated to this case. In making its ruling, the Court relied on the absence of any suggestion that Offutt possessed an unrelated object that was incriminating enough to prompt the “extraordinary” steps taken.

WC

Read the full opinion here.

Flight and Suspicious Goods Does Not Receipt of Stolen Property Make

Williams v. United States (Decided March 23, 2017)

The Players: Associate Judges Glickman and Beckwith, and Senior Judge Belson. Opinion by Judge Belson. Trial Judge Ann O’Regan Keary. Anna B. Scanlon for Mr. Williams.

Facts: At 4:00 AM, Officer Steven Good encountered a group of men, including Williams. He made eye contact with Williams, who then nudged a backpack at his feet, as if to conceal it. Good then asked the men if they would speak with him, at which point the group took off running. Good’s partner pursued Williams and found him lying down along an air-conditioning unity, holding a backpack.

Inside the backpack was a single bullet, a wallet, some jewelry and watches, and four ID cards. Good recognized the cards as matching the faces and names of a different group of men who had approached him at 10:30 the evening before and asked to use his phone. Later, Williams told Good, in reference to another member of the group that was apprehended, “He had nothing to do with it. You can let him go. I did it all on my own.”

Neither testimony from the owners of the IDs, nor the IDs themselves were offered at trial. The only detail provided about the IDs was that they bore names and photographs, but there was no information as to what kind of IDs they were, or whether they were expired or valid. Hearsay testimony that the men who had asked to use Good's phone the evening before said they had been robbed was excluded.

Based on this evidence, the trial court found Williams guilty of receiving stolen property, reasoning that the combination of William’s flight, his apparent concern specifically about the backpack, and the fact that the IDs matched individuals who had asked Good for assistance on the previous evening supported a reasonable inference that the IDs were stolen.

Issue: Was there sufficient evidence to support reasonable inferences that the ID cards were stolen and that Williams knew they were stolen?

Holding: No. Because the IDs were not reported stolen, the trial court had to rely on an inference that such a theft indeed occurred. But, “[t]he evidence did not eliminate other scenarios under which the identification cards might have come into appellant’s possession, including other scenarios which could have left appellant with a consciousness of guilt.” While William’s behavior suggested some consciousness of guilt, the crucial missing piece of the puzzle was “guilty of what.” 

CP

Read full opinion here