Request an escalation instruction when the government argues that the defendant forfeited his right to self-defense by provoking a conflict

Brandon Andrews v. United States (decided October 22, 2015).

Players:  Associate judges Glickman and Fisher, Senior judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Andrews.  Trial judge:  Robert E. Morin.  

Facts:  Brandon Andrews was convicted of second-degree murder, ADW, and related weapons offenses for the shooting death of his ex-girlfriend’s brother, Leonard Bigelow.  He contended that he shot Mr. Bigelow in self-defense when he went to the Bigelow home to talk to his ex-girlfriend, and Mr. Bigelow charged towards him with a knife while he stood on the street.  The government introduced evidence that, three days before the shooting, the decedent had pulled a knife on Mr. Andrews and threatened to kill him if he did not leave his sister alone, and that on the night of the shooting, the decedent warned Mr. Andrews over the phone that he would be waiting for him if Mr. Andrews tried to visit her.  At the government’s request, the trial court instructed the jury, in accordance with Redbook Instruction 9.504(A), that “[o]ne who deliberately puts himself in a position where he reasonably believes that his presence will provoke trouble cannot claim self-defense.”  Mr. Andrews argued that there was no factual basis for this instruction. 

Issue:  Was there a factual basis for the jury to find beyond a reasonable doubt that, by going to the Bigelow home, Mr. Andrews deliberately provoked the fatal conflict and thus forfeited his right to self-defense?        

Holding:  Yes.  “[T]he jury readily could have found that appellant deliberately chose to risk a deadly confrontation with [the decedent] by placing himself in a position where his presence would be likely to provoke exactly that,” based on the decedent’s threat three days earlier and the decedent’s warning on the night of the shooting that he would be waiting for Mr. Andrews.        

    

Of Note: 

• The Court rejected the argument that Mr. Andrews had regained his right to self-defense by disengaging with the decedent after the decedent pulled a knife and threatened him three days before the shooting.  It noted that Mr. Andrews “continued to pester” his ex-girlfriend, that that the decedent’s warning that he would be waiting for Mr. Andrews could be construed as “a renewed threat . . . of physical violence.”

• In Footnote 22, the Court left open the possibility that Mr. Andrews might have been entitled to an “escalation instruction” that would have told the jury that even if Mr. Andrews provoked a confrontation, he regained the right to self-defense if the decedent’s “reaction was disproportionate to the provocation; that it was unforeseeable, in other words, that [the decedent] would employ (as appellant allegedly perceived) more than non-deadly force against him.”  Because Mr. Andrews did not request such an instruction, the Court did not reach the question.

How to Use:

Request an escalation instruction if you have a case where the government argues forfeiture by provocation.  An escalation instruction will help to limit the extremely broad language of the provocation instruction and allow you to argue that your client had the right to defend himself against deadly force even if he provoked a non-deadly conflict.  MW

Read full opinion here.

 

Defendant Is Entitled To Show That He Is Afraid Of His Big Sister

David Travers v. United States (Decided October 8, 2015).

Players: Judges Glickman, Beckwith, and Senior Judge King. Opinion by Judge King. Dissent by Judge Glickman. PDS for Mr. Travers. Trial Judge: Stuart Nash

Facts: Mr. Travers lived with the complaining witness, who happened to be his older (elderly) sister. One October day in 2012, Mr. Travers and his sister got into an argument over a female companion Mr. Travers had in his room. That night, Mr. Travers’ sister called the police complaining that Mr. Travers hit her during the course of the argument. Mr. Travers voluntarily left the apartment. Mr. Travers returned home early the next morning and went to his sister’s room to check on her. She was in bed with her boyfriend. Mr. Travers’ sister started fussing again about his female friend, and so Mr. Travers attempted to exit the room, telling his sister to go back to sleep, they would talk about it later. As he was leaving the room, Mr. Travers heard his sister yell, “Get him,” and her boyfriend got up from the bed and started at him. Mr. Travers grabbed a nearby golf club and started swinging. The room was dark. He hit his sister.

At trial, Mr. Travers testified that he and his sister had a good relationship (except when she was drinking). Mr. Travers also testified about the hostile relationship he had with his sister’s boyfriend (who had previously threatened him). The defense sought to question Mr. Travers and his sister about prior occasions in which the sister had “assertively induced” friends to attack family members under the theory that it was reasonable for Mr. Travers to believe he was in danger when his sister told her boyfriend to “get him.” The court precluded the line of questioning, holding it amounted to impermissible propensity evidence.

Issue: Did the trial court abuse its discretion by excluding this line of inquiry?

Holding: Yes. The Court held that a “defendant’s knowledge of a victim’s prior bad acts or reputation for violence is relevant to the reasonableness of the appellant’s state of mind when assessing a claim of self-defense.” Here, knowledge that Mr. Travers’ sister had previously induced friends to attack family members would have been relevant to Mr. Travers’ “perception that he was in danger.” Thus, the Court reversed, holding there was a “real possibility” that the jury “could have rendered a different verdict” if this line of questioning had been admitted.

Notes: The dissent did not really quarrel with the notion that had Mr. Travers’ sister previously instructed friends to attack family members, such evidence would be relevant to a self-defense claim. Instead, the dissent took issue with the “skimpiness” of the defense’s proffer, arguing that the trial court conducted a thorough inquiry and that it was within its discretion to find that the proffer lacked legitimate probative value.  DH

Read full opinion here.

Use this case when you want an evidentiary hearing on your Jencks request

Josue Lopez Ambrocio v. United States (decided October 1, 2015).

 

The players: Associate judges Thompson and Beckwith, Senior Judge King.  Opinion by Senior Judge King.  Jamison Koehler for Mr. Ambrocio.  Trial judge: Richard H. Ringell.  Reviewing judge: John Ramsey Johnson.

Facts:  Trial testimony in this DUI/leaving after colliding case established that the government’s key civilian witness had been interviewed by an unidentified police officer twice on the night of the incident.  The first interview was in person and the second interview was over the phone, and lasted for fifteen minutes.  Defense counsel alerted the court that if notes were taken in the second interview, the District was required to produce them as Jencks material.  The court deferred ruling on the issue.  When the defense renewed the request in a motion for a judgment of acquittal, the prosecutor responded that she had turned over all of the notes in her possession and did not believe that any notes of the second interview existed.  The court ruled that the existence of any notes from the second interview was speculative. 

Issue:  Whether the trial court erred by failing to hold an evidentiary hearing to determine whether any Jencks material existed, when the defense alerted the Court to “the possibility” that a police officer took notes during the interview with the government witness.

Holding:  Yes.  To implicate Rule 26.2, the District’s version of the federal Jencks Act, 18 U.S.C. § 3500(b), the moving party need only establish a “reason to believe that a statutory statement may exist.”  Slip op. at 8 (quoting Johnson v. United States, 800 A.2d 700 (D.C. 2002)).  If the nonmoving party is unable to produce the statement, the trial court is required to hold an evidentiary hearing to determine whether the statement exists.

Of note:

• The prosecutor’s statement that she did not believe any further police notes existed was insufficient to negate the defense’s right to an evidentiary hearing: “The nonmoving party’s lack of knowledge of the statement does not alone establish that the statement does not exist.”  Slip op at 8 (citing Johnson, 800 A.2d at 701). 

• The defense was not required to prove that a written statement existed.  It was enough to establish that a police officer may have taken notes during the second interview with the witness, which was conducted by telephone.  NG

Read full opinion here.

Attempted Second-Degree Theft by Deception Is a Lesser Included Offense of Second-Degree Fraud

Michael J. Warner v. United States (September 17, 2015)

The players: Judges Glickman and Fisher, Senior Judge Farrell.  Opinion by Judge Glickman.  Regina Michaels for the Mr. Warner.  Trial Judge:  Patricia A. Wynn.

The Facts: The appellant was charged with misdemeanor second-degree fraud. In a bench trial, the judge acquitted him of that offense but convicted him of what she believed was a lesser-included offense, attempted second-degree theft. Appellant was leasing an apartment in the American University area and had no money to pay his rent or security deposit. He decided to make some money by advertising for a roommate on Craigslist. He accepted $800 from one woman, with an oral agreement that she would move in in December on a month to month basis to see if it worked out, and if it did, she would stay on the whole semester. Simultaneously, he was trying to sublease to another woman. After the first woman realized there was something fishy, she asked for her money back, but she never got it back. He testified that he intended to return the money as soon as he earned some.

The trial judge accepted the appellant’s testimony that he intended to permit the first woman to move in and live in the apartment in December and January, and thus rejected the government’s theory that he meant to scam her and never let her move in. Thus, she had doubt about the fraud charge, but questioned whether theft was a lesser included offense, that would permit conviction on the ground that he took the money and never gave it back. Without explaining her basis, or which statutory variant of theft she was relying upon, the judge ultimately convicted of attempted second-degree theft.

Issue 1: Is attempted second-degree theft a lesser-included offense (“LIO”) of second-degree fraud?

Holding 1:  While not every type of attempted second-degree theft is an LIO of second-degree fraud, one type is: attempted second-degree theft by deception. The elements of attempted second-degree theft by deception are: an overt act in furtherance of the offense, committed with the intent to obtain the property of another by deception. The mens rea for attempted theft by deception (though articulated in different words) is the same as for second-degree fraud, and the extended conduct required for fraud will always include an act sufficient for attempted theft by deception. Thus one is an LIO of the other. Further, that there are alternative means of committing attempted second-degree theft that would not be LIOs of second-degree fraud does not matter.

Issue 2:  Was the evidence sufficient to support a conviction for attempted second-degree theft?

Holding 2:  The evidence was sufficient to permit a finding beyond a reasonable doubt that that appellant induced the first woman to give him 800 dollars by implicitly promising that she could stay on in the apartment past January if she wanted, but he had intended from the inception to look for other roommates and kick her out sooner than she might have wanted. The woman who sent the 800 dollars was deceived because she sent the money laboring under a material misrepresentation.

However, a remand was required because although the evidence permitted the above inferences, the judge did not make clear that she actually found the facts in this manner, and may have relied on a different form of theft that is not an LIO of second-degree fraud. Because appellant had asked for the judge to make findings on this question and she did not, he was entitled to a remand.  SF

Read full opinion here.

Attempted Threats Is a Valid Crime in D.C.

Richard C. Jones v. United States (September 17, 2015)

The players: Judges Fisher and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Separate concurrence by Judge Beckwith. Nicholas Q. Elton for Mr. Jones.  Trial Judge: Robert E. Morin.

The Facts: The appellant was convicted in a bench trial of attempted threats. In a hallway in Superior Court after a hearing where the complainant – the guardian ad litem for the appellant’s daughter – had recommended that the appellant should be permitted only supervised visits with the daughter, the appellant said to the complainant, “I’m going to smack the shit out of you,” and then proceeded to get loud.

Issues of note (others are omitted):

On plain error review, the appellant argued that attempted threats was not a valid crime because all attempts require a specific intent to put someone in fear and yet the DCCA has held that a completed threat is a so-called general intent crime that requires no such intent. The Court rejected this argument based on precedent that an attempted threat is a valid offense, and precedent upholding attempts to commit so-called general intent crimes.

The appellant also challenged the sufficiency of the evidence. The Court analyzed this claim on the assumption that the offense required “a specific intent to threaten” and not just an intent to speak words that are, objectively speaking, threatening to the hearer. It did so to avoid any conflict with Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires that a defendant “transmit[] a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” The same issue (with respect to the D.C. statute) is now being litigated before the en banc Court in Carrell v. United States, 80 A.3d 163 (D.C. 2013), vacated, reh’g en banc granted.  See our blog post on Carrell here.  The Court found the evidence sufficient.

Judge Beckwith’s Concurrence:  Concurring with herself, Judge Beckwith wrote separately to flag an inconsistency in D.C. law. In Braxton v. United States, 500 U.S. 344 (1991), the Supreme Court stated that the elements “for an ‘attempt’ at common law … include a specific intent to commit the unlawful act.” D.C. cases, however, say inconsistent things on this very point. She catalogs the various statements in the various cases.  SF

Read full opinion here.

Detective Renders Miranda Waiver Involuntary With Preamble That If Kid Didn’t Speak, He Would Be Thrown to “The Lions”

In re S.W. (September 17, 2015)

The players: Judges Blackburne-Rigsby & Easterly, Superior Court Judge Epstein sitting by designation.  Opinion by Judge Blackburne-Rigsby. Opinion concurring in part and dissenting in part by Judge Easterly.  Dissenting opinion by Judge Epstein.  PDS for respondent. Trial Judge:  Milton C. Lee, Jr.

The Facts: S.W. was arrested (for carjacking) and placed in an interrogation room. Before reading the Miranda rights, Detective Howland told him that he was going to give him an “opportunity” to tell his version because “I stand between you and the lions out there [meaning other police officers] …. [W]e have a lot of things going on out there, and they’re gonna try and say that you did it all.” Unlike the lions, “I think what happened today was just a one time thing.” The lions “said … you did a whole bunch of stuff, but in order for us to have a conversation, I have to read you your rights and you have to waive your rights.” He then told S.W, that if he answered “no” to any of the rights questions they could not have the interview. Thereafter, S.W. signed the card, wrote all yeses, and incriminated himself in a videotaped statement.

The Issues:  Did the police lions-preamble render the Miranda rights ineffective? Did the police lions-preamble vitiate the validity of the purported waiver so it was neither knowing and intelligent nor voluntary?

The Holdings: Two judges (Blackburne-Rigsby and Epstein) agreed that the lions-preamble did not render the Miranda warnings ineffective, and two judges (Blackburne-Rigsby and Easterly) agreed that the lions-preamble rendered the purported waiver involuntary and thus the statement should have been suppressed.

The Dissents: Judge Easterly dissented in part because she believed that the preamble undid the import of the Miranda rights, rendering them ineffective. Judge Epstein dissented entirely because he believed police complied with Miranda and the waiver was valid.

Analysis:

Whether the lions-preamble rendered the Miranda warnings Ineffective:

Appellant argued that the lions preamble, though different from the question-first tactic described in Missouri v. Seibert, 542 U.S. 600 (2004), that the Supreme Court held invalidated the subsequent warnings though they literally complied with Miranda, was of the same ilk – designed to confuse and misinform, rendering the Miranda warnings ineffective. The majority rejected this argument, holding that where S.W. did not make any statement before the Miranda rights and he was read a full set of rights, the preamble did not vitiate the warnings.

Judge Easterly’s dissent from this portion of the majority opinion makes the following points: 1) Seibert is not confined to the precise tactic used in Seibert; in Seibert, the Supreme Court recognized that when police strategists set out to undermine Miranda’s promise of effective procedural safeguards by using tactics that obscure the force and meaning of the Miranda rights, the courts cannot accept as effective a rote recitation of rights; a preamble that obscures core Miranda principles – that the suspect has a real choice about speaking, that the police are his adversaries, and that the consequence of waiver is that evidence will be created and used against him – invalidates the rights, though they are recited correctly; the lions speech was precisely such a Miranda-neutralizing tactic that the Court must condemn; 2) specifically, by telling S.W. that the Detective was offering him an “opportunity” to better his chances, he contradicted and neutralized the required warning that anything a suspect says will be used against him; the exhortation to waive now so he could help himself vitiated the warning that S.W, had a right to remain silent and to consult with counsel before he said anything; the Detective also countered the rights to silence and to counsel by implying that asserting those rights would come at a price – losing the “opportunity” of improving his chances by confessing; and by telling S.W. that the lions would fabricate charges against him if he did not confess, the Detective turned Miranda on its head by communicating that only he could help S.W. by coming between him and the lions, and that standing on his constitutional rights could only hurt him. 

Whether S.W.’s waiver was involuntary:

The majority held that S.W.’s waiver was coerced by the detective’s clear implication that if S.W. did not waive, the lions would pin false charges on him – “that if appellant does not waive his rights, detective Howland will throw him to ‘the lions.’” It is coercive to suggest that if a suspect invokes his rights, he will be penalized.

As both Judge Easterly and Judge Epstein point out, Judge Blackburne-Rigsby’s two holdings are in tension with each other: on the one hand, the majority opinion states that the lions-preamble did not distort the meaning of the rights, on the other hand it relies on the lions-preamble to hold that the respondent could not make a free decision about waiving the rights precisely because the preamble would make anyone feel coerced, as though he had no true option but to speak. The involuntary waiver holding did not really rely on anything peculiar to S.W., only the fact that he was given the lions speech.

Point for practitioners:  Be very aware of police preambles and other such tactics. They are rampant, and now that police interrogations are videotaped, they are also recorded. Don’t give up on Seibert-type arguments because the more the defense bar shows the Court that police are trying mightily to obscure Miranda with such tactics, the more the Court will be receptive to such arguments.  SF

Read full opinion here.

Brief Fist Fight on a Crowded Bus Was a Simple Assault, Not an Aggravated Assault or an Assault with Significant Bodily Injury

In re D.P. (decided August 13, 2015)

Players: Judges Fisher and Easterly, and Senior Judge Farrell. Opinion by Judge Easterly. Aaron Marr Page and Randy Evan McDonald for D.P. Trial Judge: Florence Pan.

Facts: Sixteen-year-old D.P. and her two friends started a fight with M.G. on a Metrobus on the way home from school. Blows were exchanged, and at the very end of the fight, which lasted only fourteen seconds, M.G. hit her head on a pole and briefly lost consciousness for “maybe a minute, maybe less.” M.G. was examined by emergency medical technicians who determined that she did not need to go to the hospital. No medical evidence was presented about M.G.’s injuries, and M.G. testified that she had “minor headaches” for “two/three days” after the incident. In the ensuing delinquency case, D.P. was adjudicated “involved” in an aggravated assault and an assault with significant bodily injury.

Issue 1: Was the evidence sufficient to find D.P. guilty of aggravated assault?

Holding 1: The evidence was insufficient to find D.P. guilty of aggravated assault because the evidence did not support a reasonable inference that D.P. had the requisite mental state, that is, she did not “manifest extreme indifference to human life.” The Court reiterates that the mental state required is “substantively indistinguishable” from the minimum state of mind required for second-degree murder, and held that the evidence was insufficient to prove that D.P. possessed that “gross recklessness/depraved heart malice.” In so holding, the Court noted that D.P. and her friends had no weapons, the assault was very brief and occurred in a crowded public place where bystanders could intervene, and the circumstances suggested that their intent was more to intimidate M.G. than to injure her. Accordingly, D.P.’s actions did not manifest extreme indifference to human life.

D.P. had also argued on appeal that M.G.’s injuries did not constitute “serious bodily injury” required for an aggravated assault conviction, but the Court declined to rule on that argument in light of its holding that the mens rea was not satisfied. The Court said that it is still an “open question” as to whether the brief loss of consciousness suffered by M.G., which required no medical treatment, would be enough to meet the definition of “serious bodily injury.”

Issue 2: Was the evidence sufficient to find D.P. guilty of assault with significant bodily injury?

Holding 2: The evidence was insufficient to find D.P. guilty of assault with significant bodily injury because M.G.’s injuries did not “require hospitalization or immediate medical attention.” The Court held that M.G.’s injuries were analogous to those suffered by the complainant in Quintanilla v. U.S., 62 A.3d 1261 (D.C. 2013), and that the Court was bound by the holding in that case. In both Quintanilla and D.P.’s case, the complainant had been examined by emergency personnel, and experienced soreness/pain for some days after the incident, but did not seek or require any further medical treatment. As such, M.G.’s injuries did not constitute “significant bodily injury” and the Court held the evidence insufficient to find D.P. guilty of assault with significant bodily injury. SN

Read full opinion here.