Fourth Amendment Seizure Where Police Blocked a Narrow Path and Ran a Warrant Check While Asking Accusatory Questions

Jones v. United States (decided February 23, 2017)

Players: Associate Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Glickman. Dissent by Judge Fisher. Joseph A. Mokodean for Mr. Jones. Trial judge: Harold L. Cushenberry, Jr.

Facts: Jones was walking alone in a narrow alley around 6:00 p.m. when two armed, uniformed officers in a marked patrol car drove up the alley. One officer testified that he saw Jones “fiddling with a Newport cigarette box,” which Jones lowered to his side when he saw the police car. The officers drove up alongside Jones, and one officer got out of the car, blocking Jones’s way. The officer questioned Jones in a “cordial” tone for one to two minutes, and relayed the information to his partner so that his partner could run a warrant check. Before the warrant check was complete, the officer asked to see the cigarette box. Jones handed it over and the officer found crack cocaine inside.

Issue: Had Jones been seized for Fourth Amendment purposes when police asked for the cigarette box, such that the cocaine should have been suppressed?

Holding: Yes. A reasonable person would not have felt free to leave where armed officers subjected him to accusatory questioning while he was alone in a secluded area, the questioning officer physically blocked his path, and police ran a warrant check, which was still going on when they asked for the cigarette box.

Of Note:

• The majority called this a “close legal question” and emphasized that the blockage of Jones’s path and the warrant check “materially increased [the] coerciveness” of the encounter.

• Even though Jones “failed to cite” the fact of the ongoing warrant check in his appellate brief, the majority concluded that he had not abandoned reliance on this factor because his trial counsel had relied on it at the suppression hearing and the trial judge explicitly considered it in ruling, and because his appellate counsel submitted a 28(k) letter before oral argument citing a case analyzing the significance of a warrant check in the Fourth Amendment context.

• In dissent, Judge Fisher stated that he would have treated as forfeited the argument relating to the impact of the warrant check. He also distinguished the two cases the majority relied on pertaining to the significance of the warrant check.  MW

Read full opinion here

Typo Time! Court of Appeals Rejects Expansive Reading of Rule 10(e)(3), Finds Itself Unable to Declare a Scrivener’s Error on Appeal from Jury Instruction.

Payne v. United States (decided February 23, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Nebeker. Opinion by Judge Beckwith. Concurring opinion by Judge Nebeker.  Jason M. Wilcox for Appellant.  Trial Judge: George W. Mitchell.

Facts: Following a conditional grant of habeas corpus by the D.C. Circuit, the Court of Appeals allowed Mr. Payne to raise a claim of instructional error – whether the trial court committed plain error by instructing the jury, on one of the several occasions where the Government’s burden was discussed, that “it must find the defendant guilty,” if it found that the Government “had failed to prove any element of the offense beyond a reasonable doubt.”

Holding: Considering the claim on plain error review, the Court found no reasonable likelihood that the trial court’s isolated misstatement had prevented the jury from determining Mr. Payne’s guilt in accordance with the Constitution. Slip Op. at 4-7. Judge Nebeker, concurring (perhaps only in part), proposed to decide the case on the alternate basis that the purported instructional error was really a typographical or “scrivener’s” error – i.e., that the court reporter simply failed to transcribe the “not” between “defendant” and “guilty.” Id. at 8.

D.C. Appellate Rule 10(e) provides:

(1) If any difference arises about whether the record truly discloses what occurred in the Superior Court, the difference must be submitted to and settled by that court and the record conformed accordingly. 

(2) If anything material to any party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

      (A) on a stipulation of the parties; or

      (B) by the Superior Court before or after the record has been forwarded. 

(3) All other questions as to the form and content of the record must be presented to this court.

Judge Nebeker reasoned that the “true” content of the instruction would “seemingly” fall under Rule 10(e)(2), Slip Op. at 13. However, because “[t]he trial judge and the court reporter are dead and the reporter’s notes are gone,” the Court of Appeals was “in as good a position as a substitute trial court judge to decide” what really happened, which Judge Nebeker viewed as an “other question[] as to the form and content of the record.” Id. at 13-14. Finally, Judge Nebeker reasoned that the trial court’s prior correct statements of the reasonable doubt axiom disproved that it had made a mistake at the time in question on appeal. Id. at 14.

Writing for the Court, Judge Beckwith disagreed that the trial court’s prior correct instructions constituted evidence of a scrivener’s error (“as the government conceded in its brief and at oral argument, even very experienced judges make mistakes”) and further concluded that even if such evidence existed, the trial court would have to decide “whether the record truly discloses what occurred” pursuant to Rule 10(e)(1). Id. at 7 n.4.

Of Note: Attorneys practicing in the Court of Appeals should continue to observe the trial court’s authority to resolve disputes regarding the record, even those which might be classified as “misstatements,” “ommissions,” “errors,” or “accidents.” See Clark v. United States, 147 A.3d 318 331 (D.C. 2016). WC

Read full opinion here

But I Heard it from That Guy! Random Information Passed from One Cop to Another Without Explanation Does not Justify a Terry Stop

Jenkins v. United States (decided February 2, 2017)

Players: Associate Judges Glickman and Blackburne-Rigsby, and Senior Judge Pryor. Opinion by Judge Pryor. PDS for Mr. Jenkins.  Trial Judge: Neal E. Kravitz

Summary: After a man attempted to rob him inside his apartment building between 3:00 and 4:00 pm, the complainant described the assailant to officers from the Metropolitan Police Department (MPD) as 21 to 22 years old, 5’8” to 5’9”, with a dark brown complexion, average build, dreads, a ski mask and dark clothing.

Special Police Officers (SPOs) in the apartment complex where the incident occurred reviewed security camera footage, which apparently did not capture the robbery. Nonetheless, when SPO Walker arrived for his midnight shift, another SPO, who had supposedly looked at the camera footage, told him they were looking for a “black male, with a black ski mask, blue jeans, black jacket, and a bicycle.” Based on this description, SPO Walker stopped Mr. Jenkins (who was on a bicycle) outside of the apartment complex sometime near 1:00 am. He was frisked and weapons and ammunition were found. Mr. Jenkins did not have dreads and was light-skinned.

Issue 1: Did the vague description given by one SPO to another, in the absence of any record evidence about what was on the video, provide reasonable articulable suspicion to justify the stop?

Holding 1: No. The government presented neither the security camera footage, nor the officer who viewed the footage at the suppression hearing. Thus, the government failed to meet its burden to demonstrate that the information relied on by SPO Walker was itself based on reasonable articulable suspicion (and indeed, on this record, that was highly questionable).

Issue 2: Did either the description given by the complaining witness to MPD, or the description given by the non-testifying SPO to SPO Walker, justify the stop?

Holding 2: No. Both descriptions would apply to too many people, and, particularly when combined with the passage of almost ten hours, could not support a reasonable articulable suspicion of Mr. Jenkins. CP

Read full opinion here.

Rule 33 Held Non-Jurisdictional; Due Diligence Prerequisite Rejected for Claims of Juror Misconduct Discovered Post-Trial

Poth v. United States (decided December 29, 2016).

Players: Judges Glickman and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith. Enid Hinkes for M.P.  Trial Judge Russell F. Canan.

Facts:  Following M.P.'s conviction for voluntary manslaughter while armed, defense counsel “Googled” M.P.’s jurors and learned that Juror 061 had a prior felony conviction and that Juror 703A had been the complainant in an assault.  The government subsequently disclosed that Juror 061 had several other convictions and that Juror 703A had been the complainant in another assault.  This information was sought during voir dire but omitted from the jurors’ responses.  

Issue 1:  Whether review of M.P.’s motion for new trial was barred by extensions of time to file that did not comply with Super. Ct. Crim. R. 33? 

Holding 1:  No.  Rule 33’s time limit “is not jurisdictional,” as it is not mandated by constitution or statute.  Slip. Op. at 6. The government waived Rule 33’s protection by failing to object to all but one of the requested extensions and representing that it had no objection, as long as it was given proportional time to respond.  Id. at 8.

Issue 2:  Whether the trial court erred by denying M.P.’s motion based on defense counsel’s purported failure to exercise due diligence in discovering the alleged misconduct?

Holding 2:  Yes.  “Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.”  Id. at 10.

 

Issue 3:  Whether, on remand, the trial court may grant relief without an evidentiary hearing?

Holding 3:  Yes.  If it is no longer possible to hold a fair hearing to determine whether the jurors were biased, the motion for new trial should be granted outright.  Id. at 14.  Further, in the absence of evidence satisfactorily explaining Juror 061’s failure to disclose his prior convictions, the trial court should presume that his failure was intentional and thus highly probative of his inability to render a fair and impartial verdict. Id. at 15.

Of note:

• In holding that Rule 33’s time limit is not jurisdictional, the Court of Appeals recognized that one contrary precedent – Diamen v. United States, 725 A.2d 501 (D.C. 1999) – has been undermined by subsequent Supreme Court cases and that another – Dean v. United States, 938 A.2d 751 (D.C. 2007) – did not pass upon this precise question.  See Slip. Op. at 7 & n.7.  Neither Dean nor Diamen is good law on this issue.

• The Court of Appeals rejected the argument that a “due diligence” requirement is needed to prevent sandbagging because, given the uncertain prospect of obtaining post-trial relief, a defendant is always better served by raising a claim of juror bias immediately.  Slip Op. at 12-13 n.13.  Indeed, although this opinion removes one procedural hurdle to post-trial relief (jurisdictional time bar) and prevents another from taking root (due diligence), a defendant seeking a new trial based on juror misconduct must still prove actual juror bias, a burden that should not be underestimated.  WC

Read full opinion here.

Neglect procedures are unconstitutional; parents entitled to hearing before permanency goal is changed to adoption

In re Ta.L. (decided December 8, 2016).

Players: En banc opinion by Chief Judge Eric T. Washington; with Associate Judges Glickman, Fisher, and McLeese dissenting but concurring in the judgment; and with Associate Judges Beckwith and Easterly joining in part but dissenting from the judgment.  Tanya Asim Cooper and Joyce Aceves-Amaya for E.A., Leslie J. Susskind for A.H., N. Kate Deshler Gould for A.H. and T.L., and Melanie L. Katsur for R.W. and A.W.  Amici briefs filed by Kelly Venci; PDS; the Children’s Law Center; Legal Aid Society of the District of Columbia; National Association of Counsel for Children; Center for Family Representation, Inc.; Family Defense Center; and multiple law professors.  Trial judge: Neal E. Kravitz.

Summary: We take a brief interlude from criminal law decisions to highlight an important en banc family law decision.  In this case, the Court considered whether the constitutional rights of biological parents to raise their children are effectively protected under the current statutory scheme in neglect cases.  Specifically, appellants contended that “when a trial court changes the goal of a neglect proceeding from reunification to adoption, it informally terminates the pending neglect case and effectively puts the case on an almost unalterable path to adoption without a full evidentiary hearing or recourse to an appeal.”  Slip op. at 22.  Appellants and several amici contended that parents should be able to challenge a trial court’s determination that they are not making sufficient progress toward reunification.  The Court agreed, holding that “a trial court’s grant of a permanency goal change from reunification to adoption over the parents’ objection, without an adjudicatory hearing to determine whether the District has fulfilled its duty to expend reasonable efforts to reunify the family, violates a parent’s procedural due process rights and, therefore, is appealable by the parents as a matter of right.”  Id. at 24.  In doing so, the DCCA overruled In re K.M.T., 795 A.2d 688 (D.C. 2002), which found that a change of permanency goal is not appealable because it is merely a step towards the termination of parental rights or an adoption and is not final.  Now, a change in the permanency goal of a neglect case from reunification to adoption is an order subject to immediate appellate review.  Furthermore, before a court can terminate parental rights, it must first make a finding that the parents are unfit, unless truly exceptional circumstances exist or the parents have otherwise stipulated to their continued unfitness.  Id. at 55.  NG

Read full opinion here.

Wondering whether injuries amount to “significant bodily injury” for felony assault? Read this case!

Belt v. United States (decided December 8, 2016).

Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Blackburne-Rigsby.  Daria J. Zane for C.B.  Trial Judge: Franklin Burgess.  

Summary:  This case stems from a fight between C.B. and two of her former friends, Cynthia Spenard and James Tolbert III.  At trial, C.B. was accused of assaulting Mr. Tolbert with a meat cleaver, causing an inch-long laceration to his forehead and an inch-and-a-half long laceration to his shoulder.  The main issue on appeal was whether these injuries amount to “significant bodily injury,” as required for a felony assault conviction.  In this opinion, the Court seeks to clarify the District's case law on what constitutes sufficient evidence to sustain a felony assault conviction.  Here are some highlights:

• The original draft of the bill creating the offense of felony assault used the language “bodily injury.”  In response to comments from PDS, the Council adopted the term “significant bodily injury,” to incorporate injuries “more serious than mere bodily injury such as slapping but less serious than serious bodily injury.”  Slip op. at 8 (insertion and quotations omitted).  The committee report on the bill states that the Council’s intent was for the crime of felony assault to cover assaults that result in “significant (but not grave) bodily injury.”  Id. at 9 (quotation omitted). 

• “[T]here are two independent bases for a fact finder to conclude that a victim has suffered a significant bodily injury: (1) where the injury requires medical treatment to prevent ‘long-term physical damage’ or ‘potentially permanent injuries’; or (2) where the injury requires medical treatment to abate the victim’s ‘severe pain.’”  Id. at 11.

• The relevant fact is not whether the individual receives medical attention “but whether medical treatment beyond what can administer himself is immediately required to prevent ‘long-term physical damage, possible disability, disfigurement, or severe pain.'” Id.  at 12 (quoting Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015) (emphasis added in Belt). 

• “[W]e can summarize the definition of ‘significant bodily injury’ as follows: to qualify as ‘significant bodily injury,’ the nature of the injury itself must, in the ordinary course of events, give rise to a ‘practical need’ for immediate medical attention beyond what a layperson can personally administer, either to prevent long-term physical damage or to abate severe pain.”  Id.

• When the medical treatment prescribed or administered, such as stitches, is something that can be performed only by trained medical professionals, the fact finder may be able to infer from the course of treatment itself that immediate medical attention was “required,” thereby establishing that the injury constituted a “significant bodily injury.”  Id. 

• The government is not required to prove through medical or other expert witnesses that the immediate medical attention that the victim received was actually necessary. 

• Evidence of the victim’s injuries and the victim’s reactions to them may allow the fact finder to infer based on “common sense” and every day experience that the victim was in “severe” pain.

• Applying these principles to Mr. Tolbert’s injuries, the Court reasoned that he sustained significant bodily injury: Mr. Tolbert testified that he felt disoriented and had a ‘little black out spell’ from the strike; he experienced significant blood loss; and after being taken to the hospital immediately after the incident, he received stitches for his forehead wound and “strips” for his shoulder wound.  NG

Read full opinion here.