Juror who dissented early during the jury poll was not coerced into later agreeing with the verdict.

Leake v.United States, No. 11-CF-0554

(decided Oct. 17, 2013)

Players: Glickman, Blackburne-Rigsby, Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS and Jenner & Block for Mr. Leake.  Trial judge: Anthony C. Epstein.

Facts:  Robert Leake was charged with several gun-and-ammunition possession offenses.  Toward the end of the first full day of jury deliberations, the jury announced it had reached a verdict.  But when the court polled the jury, asking each juror if he agreed with the verdict, Juror Three answered “Sort of yes — I mean, no.  Not too much.”  The judge terminated the poll and told the jury, “I’m going to return the verdict form to the foreperson and I’m going to ask you to resume your deliberations and let me know when you’ve reached a verdict or if you have any questions.”  Defense counsel moved for a mistrial, citing the risk of Juror Three being coerced into going along with the verdict, especially since that juror had expressed concerns during jury selection about problems finding childcare while he was serving.  The trial judge denied the motion.  After about 30–40 minutes of additional deliberations, the jury again stated it head reached a verdict, and this time there was no dissent.

Issue: Whether it was impermissibly coercive to send the jury back for additional deliberations, without further instruction, after the third juror registered his dissent during the jury poll.

Held:  There was not undue coercion in this case.  The potential for coercion is minimal when a juror reveals his dissent early in the polling because other jurors have not yet revealed their own positions.  Here, the dissenting juror went third, so most of the other jurors had not yet been polled and the court terminated the poll right away.  Although the trial judge observed that the split was “probably eleven to one,” he did so after the jury had left the courtroom, and thus the dissenting juror was unaware that the judge believed he was the lone dissenter.  The trial judge’s instruction after terminating the poll — sending the jury back for further deliberations without additional comment — was neutral.  The judge did not tell the jurors they had to reach a unanimous verdict because he also told them they could come back with questions.  The trial judge also had the opportunity to observe Juror Three’s demeanor during the second poll, in which the juror agreed with the verdict, and found that he “didn’t seem to be equivocal.”  And the trial judge reasonably concluded that the additional 30 minutes or so of deliberations was enough time for the jurors to have talked things through.  Though a Crowder instruction — which tells the jury to remain faithful to their honest convictions — could have reduced the coercive potential, it was not required because the potential for juror coercion was only “nominal.”  

Of note:

·         The Court mentions the dissenting juror’s childcare concerns in the facts section of the opinion, but it doesn’t figure into the Court’s analysis of the coercive potential.  The breakdown in the jury poll happened as the deliberations for the day were close to winding down.  By quickly going along with the majority verdict, the dissenting juror ensured he would not have to come back the next day and thereby avoided any additional problems finding childcare.  Doesn’t that circumstance add significantly to whatever other pressure he might have felt to go along with the verdict?  It’s strange for the Court to just ignore this fact.

·         The Court’s ruling turns largely on the fact that the dissenting juror went early on in the poll, and the Court’s ruling in this regard is grounded in precedent.  But the polling order is an odd thing to focus on, since all of the reasons the Court has given for why a lone dissenting juror might feel coerced seem to be present even when many jurors have not been polled.  Certainly, though the exact division of the jury isn’t technically known, it seems pretty obvious that the split is probably 11-1, as the trial judge here figured.  After all, if the jury has gotten to the point where it announces it has reached a verdict, then everyone is supposed to be on board.  From the dissenting juror’s perspective, which is it what matters, he has every reason to think that the judge believes he is the sole holdout.  So most of the indicators of jury coercion the Court has identified — the dissenter’s identity has been revealed in open court, the division of the jury is known, the judge knows who the dissenter is, the dissenter knows the judge knows who he is, and the other jurors feel bound by the verdict they have announced — are present at least to some degree no matter when during the poll a juror dissents.

·         The Court finds the trial judge’s instruction neutral because he gave them the option of asking questions.  But he also told the jurors to let him know “when” they reached a verdict — not if they could.  And he said nothing to the jurors about the importance of not surrendering an honest conviction just to get a unanimous verdict.  This sounds like a recipe for a juror with childcare problems who thinks he’s going to be there forever unless he goes along with the other jurors’ verdict to feel pretty coerced.  The opportunity to ask questions wouldn’t change that. 

How to use:

·         When a juror dissents during the jury poll, keep the order of the poll in mind.  If a juror happens to dissent toward the end of the poll, then you’ve got an issue; but if a juror dissents early on during the poll, then it probably won’t matter on appeal unless the judge does something stupid to exacerbate the situation.  DG.

Admitting testimonial hearsay violates the Confrontation Clause, even if offered solely as the basis for the opinion of an expert witness.

Carrington v. District of Columbia, No. 11-CT-698

(decided Oct. 17, 2013)

Players: Washington, Thompson, Newman.  Opinion by Chief Judge Washington.  Jeffrey L. Light for Mr. Carrington.  Trial judge: Marisa Demeo.

Facts:  Derrick Carrington was spotted by police officers driving “very slow with little control.”  When the officers activated their emergency lights, Mr. Carrington rolled through a stop sign, turned left into oncoming traffic, made a u-turn into more oncoming traffic, and then hit the curb and stopped.  When the officers approached, Mr. Carrington was confused by their orders, couldn’t put his car in park, couldn’t get out of the car, stand up, or walk without help, had slurred speech, dilated pupils, and was laughing the whole time.  He also failed three field sobriety tests.  However, the officers didn’t smell any alcohol (or any other drug) and, back at the station, a breath alcohol test registered a perfectly clean .000.  Suspecting that Mr. Carrington had taken PCP, the police got a urine sample and sent it off for tests.  The test results were positive for PCP and THC.  Mr. Carrington was charged with DUI.  At trial, the government called Lucas Zarwell as an expert witness to testify about the urine testing.   The problem was that Zarwell did not actually perform or observe the lab work and based his testimony off a review of the lab report and other paperwork.  The trial judge allowed Zarwell’s testimony over the defense’s Confrontation-Clause objection, explaining that she was admitting Zarwell’s testimony about the content of the lab report not for its truth, but as the basis for Zarwell’s opinion that Mr. Carrington was under the influence of PCP.  The judge, in a bench trial, found Mr. Carrington guilty of DUI, and added that she found the evidence convincing beyond a reasonable doubt even without Zarwell’s testimony.

Issue: Whether admitting testimonial hearsay for the purportedly limited purpose of providing a basis for an expert’s opinion violates the Confrontation Clause.

Held:  Admitting Zarwell’s testimony about the test results violated the Confrontation Clause, but the error was harmless.  Under the DCCA’s recent decision in Young v. United States, 63 A.3d 1033 (D.C. 2013), Zarwell’s testimony about the urine test was testimonial hearsay because it satisfied both the “evidentiary-purpose” and “targeted-accusation” tests developed by different groups of Supreme Court Justices in Williams v. Illinois, 132 S. Ct. 2221 (2012).  Admitting this testimonial hearsay, even for the limited purpose of establishing a basis for an expert opinion, violates the Confrontation Clause.  The factfinder necessarily must evaluate the truth of the basis for an expert’s opinion in order to evaluate the opinion itself.  Thus, the utility of the testimonial hearsay is dependent on its truth despite the purportedly “limited” purpose for its admission.  However, the error in this case was harmless because (1) the DUI statute did not require the government to prove that Mr. Carrington was under the influence of any specific drug; (2) while juries may reasonably doubt a defendant’s guilt when the government doesn’t introduce scientific evidence that the jurors expect to see, this was a bench trial; and (3) Mr. Carrington’s behavior on the night of his arrest showed his “obviously impaired condition.”

Of note:

·         The Court opens its opinion by explaining that the Confrontation-Clause issue “is worthy of a published opinion given the frequency with which it has appeared before this court.”  The Court doesn’t think this is a difficult issue, but a lot of trial judges are getting it wrong.

·         Although the trial judge expressly stated that the government had met its burden of proof even without the disputed expert testimony, that doesn’t factor into the Court’s harm analysis at all.

·         While the Court’s Confrontation-Clause analysis is pretty straightforward, its harm analysis is more controversial. 

o    Though Mr. Carrington’s behavior as described by the Court makes it seem pretty clear he was high, a reasonable factfinder might have wondered whether he had a medical condition, e.g., a stroke.  Though the Court notes that Mr. Carrington never complained about a medical condition, that hardly proves he did not have one (a person who has just suffered a stroke probably wouldn’t be in a position to point out he has just suffered a stroke).  The urine test, however, pretty much eliminated any doubt that Mr. Carrington’s behavior was the result of anything other than his drug use.  For that reason, it was a critical piece of evidence even if the government’s remaining evidence was strong.

o    The Court draws a poorly reasoned distinction between the importance of lab tests in DUI cases and drug-possession cases, premised on the fact that the type of drug at issue matters only in the latter.  The urine test in this case mattered not because it showed Mr. Carrington was high on PCP, but because it showed he was high on something.  The Court also overstates the importance of lab reports in drug-possession cases.  A DEA-7 report isn’t “necessary” in those cases because the government can prove the chemical nature of a controlled substance through circumstantial evidence.  A case like Duvall v. United States, 975 A.2d 839 (D.C. 2009), shows that even when there is pretty strong circumstantial evidence that a person possessed a specific controlled substance, admitting a DEA-7 report is not harmless error.  And even for a charge of attempted possession of a controlled substance, where the government does not have to prove that what the defendant tried to possess actually was a specific drug, the Court has held that a DEA-7 report was harmful.  See, e.g., Washington v. United States, 965 A.2d 35, 43–44 (D.C. 2009). 

o    The distinction the Court draws between the importance of scientific evidence in jury trials and bench trials is troubling.  If a jury might reasonably doubt the government’s case if the government doesn’t offer the type of scientific evidence that is commonly and reasonably expected, then why shouldn’t a judge do the same?  Indeed, the very case the Court cites for this point — Duvall — was a bench trial where the Court held that a DEA-7 report was harmful. The Court seems to be saying that trial judges are more willing to give the government the benefit of the doubt than juries so it’s harder to show harm in a bench trial.

How to use:

·         The Court is making it very clear that if the government wants to introduce scientific evidence — DNA tests, urinalysis tests, DEA-7 reports, etc. — it has to have the people who actually performed or observed the tests testify and be subject to cross-examination.  The government cannot sneak this evidence in by offering it as the basis for expert testimony instead of for its “truth.”

·         For appellate practitioners, the Court’s harm analysis suggests that it will be harder to show harm when scientific evidence is erroneously admitted in a bench trial rather than a jury trial.  DG

Furtive or not furtive? That is the question. Good Fourth Amendment decision – Drunk man’s chest-level hand gestures and unresponsiveness to the question “do you have a gun?” did not provide reasonable articulable suspicion that he was armed and dangerous

Robinson v. United States, No. 12-CF-1223

(decided Sept. 26, 2013)

Players:  Beckwith, Easterly, Ferren.  Opinion by Judge Easterly.  Susan E. Borecki for Mr. Robinson.  Motions judge:  Stuart Nash.

Facts:  Officers from the MPD “Gun Recovery Unit” approached Mr. Robinson as he was standing next to a parked car in a parking lot.  It was 8:30 p.m., and Mr. Robinson was quite obviously drunk, holding an empty vodka bottle, unable to stand in one place, and verbally non-responsive.  An officer asked him if he had a gun—“not because he had any suspicion that [Mr. Robinson] did” but because, as a member of the Gun Recovery Unit, he “put this question to everyone he encountered out on patrol.”  Robinson, slip op. at 9, 19.  Mr. Robinson again did not respond; he did, however, bring “both of his hands up to his chest,” where he moved them “back and forth” or “side to side.”  Id. at 7.  The officer testified that this movement, combined with Mr. Robinson’s non-responsiveness, made him think that Mr. Robinson might have a gun.  Officers then bear hugged him, grabbed his wrists, patted him down, and handcuffed him, at which point they found a small gun in the breast pocket of his coat.  Although the officers “ostensibly searched Mr. Robinson for their own protection,” they left the handgun in his pocket so that the crime scene technicians could take a picture of it for trial.  Id. at 8, 23.

Mr. Robinson moved to suppress the gun and his subsequent statements as the fruits of an unlawful “protective patdown” under Terry v. Ohio, 392 U.S. 1 (1968), arguing that the officers lacked reasonable, articulable suspicion that he was armed and dangerous.  Although the motions judge deemed it “a very close case,” he found that Mr. Robinson’s hand gestures, made after the officer asked if he had a gun, were sufficient to give the officers reasonable articulable suspicion that he had a weapon.  Robinson, slip op. at 11.

Issue:  Did the officers have “reasonable, articulable suspicion” that Mr. Robinson was “armed and dangerous” sufficient to justify their “protective patdown” under the Fourth Amendment?

Held:  No.  “Where Mr. Robinson appeared to be intoxicated and the officers had no reason to suspect him of wrongdoing before their interaction, his back-and-forth, side-to-side hand motions, made after he was confronted by four police officers and asked if he had a gun, coupled with his silence and his presence in a high crime area did not give rise to an objective, particularized suspicion that [he] was armed and dangerous.”  Id. at 26.

Of note:

• Mr. Robinson’s hand gestures alone were not inherently suspicious.  The fact that he made them after the officer asked if he had a gun did not make them suspicious either. Nothing about the gestures “signaled a physical admission” or “concealment of a guilty fact,” and the fact that he was obviously impaired suggested that they were simply “the vague or uncontrolled gestures of an intoxicated individual.”  Id. at 20-21.
• The fact that Mr. Robinson did not verbally respond to the question “do you have a gun?” did not give rise to a reasonable suspicion that he was armed, given that (a) citizens have no legal duty to speak to police, and (b) he was clearly intoxicated and hadn’t responded to any of the officers’ questions.  Id. at 21-22
• The fact that the officers left the gun in Mr. Robinson’s pocket “to create better evidence against him in any criminal prosecution” suggests that they had neither an objective nor a subjective basis to feel any concern for their safety.  Id. at 23.
• The fact that Mr. Robinson was standing in a “high crime area” did not give rise to a “particularized, individualized suspicion” that he had a gun.  Id. at 25.

How to use: 

• Robinson is very useful for cases in which the police claim that their reasonable suspicion was based on “furtive gestures.”  The Court rejects the government’s characterization of Mr. Robinson’s gestures as “furtive,” given that they weren’t particularly stealthy.  The Court also doesn’t put much stock in the police officer’s subjective statement that he perceived Mr. Robinson’s movements as furtive, explaining that the officer’s “mission” –looking for guns – may have “clouded his perception of what he saw.”  Id. at 22.  This notion of “mission bias” can be a useful counterweight when police officers claim they perceive your client’s ambiguous / innocuous movements as “suspicious” or “furtive.”
• Robinson is also a good case to cite when your client was arrested in a high crime area  and/or when he does not respond to police questioning, as the court held that neither fact supported a reasonable articulable suspicion that Mr. Robinson had a weapon.  CM

Struck down! District’s “Presence in a Motor Vehicle Containing a Firearm” (PMVCF) statute held unconstitutional on its face. Good precedent on the plain error standard, too.

Conley v. United States, No. 11-CF-589

(decided Sept. 26, 2013)

Players: Glickman, Thompson, Oberly.  Opinion by Judge Glickman.  Opinion concurring in the judgment by Judge Thompson.  Ian A. Williams for Mr. Conley, with PDS as amicus curiae.  Trial judge: Craig Iscoe.

Facts:  Antwaun Conley was pulled over in a traffic stop; there was one passenger in the car with him.  Police found a loaded handgun in the center console.  Mr. Conley was charged with and tried for four possessory offenses (felon-in-possession of a firearm, carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition), as well as the non-possessory offense of PMVCF, which makes it a felony for a person to be “voluntarily in a motor vehicle if that person knows that a firearm is in the vehicle, unless the firearm is being lawfully carried or lawfully transported.”  D.C. Code § 22-2511(a).  His defense at trial was that he neither possessed the gun nor knew that it was there, and that it must have been placed in the console by either his passenger or one of the police officers.  The jury acquitted him of all the possessory offenses but found him guilty of PMVCF.

Issue: Whether the District’s PMVCF law (D.C. Code § 22-2511) is constitutional.

Held:  The PMVCF statute is unconstitutional on its face and cannot be saved through statutory interpretation.  The law violates due process in two ways:  First, its affirmative defense provision, which requires the defendant to show that he intended to leave the vehicle upon learning of the firearm but did not have a “reasonable opportunity to do so,” § 22-2511(b), unconstitutionally places the burden of persuasion on an essential element—the defendant’s voluntary presence in the vehicle—onto the defendant.  Conley, Slip op. at 12-23.  Second, even if the statute were interpreted to require the government to prove that the defendant had a reasonable opportunity to leave the vehicle but chose to stay, it still violates due process because the average person would have no notice that merely being in a vehicle containing a gun is a felony offense.  Id. at 23-44 (relying on Lambert v. California, 355 U.S. 225 (1957)). 

Of note:

• The Court rejects the government’s argument that Conley waived his claim by failing to raise it as a defect in the indictment prior to trial pursuant to Criminal Rule 12(b)(2).  That rule does not apply when the appellant’s claim is that the statute creating the charged offense is unconstitutional.   Id. at 9-11.
• The Court reversed under plain error review.  (Conley’s trial lawyer did not object to the constitutionality of the PMVCF statute.)  Notably, the Court found the unconstitutionality of the statute to be “plain” even though there was no precedent directly on point, explaining that “the ‘plainness’ of the error can depend on well-settled legal principles as much as well-settled legal precedents.”  Id. at 45 (quoting United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003)).   

How to use:

• If you have a client charged with PMVCF, move to dismiss the indictment ASAP.  If you have a client on appeal who was convicted of PMVCF, move for summary reversal.  Nobody can be charged with PMVCF.  This statute is no more.  It has ceased to be.  Bereft of life.   Kicked the bucket.  Shuffled off its mortal coil.  This is an ex-statute.
•  Conley also has some other useful implications beyond striking down PMVCF:
• Heretofore, the DCCA had expressed doubt about whether one can bring a facial challenge outside the First Amendment context.  Conley demonstrates that facial challenges are not limited to the First Amendment.
• FOR APPELLATE PRACTITIONERS:  The government often tries to make “plainness,” the second prong of the plain error test, a much more exacting standard than it is—they argue that it requires a case with identical facts that decided the exact same legal issue.  Conley offers a strong rebuttal to that argument, as it makes clear that the plainness prong can be met so long as the underlying principle of law (in this case, Lambert) is well-established; its application to a new issue or factual context need not be.  CM

Two Big Holdings From One Arrest: Threats to MPD Property Don't Violate the Felony Threats Statute, and Jerking One's Elbow to Brush Off a Police Officer's Hand Isn't an APO

Ruffin v. United States, No. 12-CF-956 (decided Sept. 5, 2013)  

Players: Washington, Blackburne-Rigsby, Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS for Mr. Ruffin.  Trial judge:  Michael L. Rankin. 

Facts:  Officer Amaya was investigating a report of a burglary when he encountered Mr. Ruffin hopping over a retaining wall.  Mr. Ruffin looked “surprised” and “startled” when he turned and saw the police officer.  Officer Amaya immediately put his hands on Mr. Ruffin.  As he did so, his hand hit Mr. Ruffin’s shoulder.  Mr. Ruffin brushed the officer’s hand off his shoulder.  Officer Amaya further described Mr. Ruffin’s motion as “elbowing to the back with his right arm.”  Later, when told he was about to be placed in a police car, Mr. Ruffin warned, “You put me in there, I’m going to kick out the windows.”

Issue 1:  Does pulling one’s arm away from a police officer amount to “resistance” of the officer under the assault on a police officer (“APO”) statute?

Issue 2: Can a threat to destroy property owned by the District of Columbia constitute a felony threat?

Held on Issue 1: Mr. Ruffin’s minimal motion did not rise to the level of “active and oppositional conduct” required for a violation of the APO statute.

Held on Issue 2: The District is not a “person” within the meaning of the threats statute.  Therefore, a threat to property owned by the District is not encompassed by the statute.

Of Note on APO:

• Mr. Ruffin’s “discrete act of immediately pulling his arm away from Officer Amaya” did not amount to resistance of Officer Amaya. Ruffin, slip op. at 7.

• Mr. Ruffin’s act of pulling away can be distinguished from (1) hiding one’s hands and breaking free from a police officer’s grip by swinging one’s arm’s forward, (2) concealing one’s arms under one’s body and refusing to comply with police orders to show hands, and (3) holding a gate closed to prevent an officer from entering.  Id. at 9-10 (distinguishing In re J.S., 19 A.3d 328, 330 (D.C. 2011), Coghill v. United States, 982 A.2d 802, 807 (D.C. 2009), and Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008)).  

•  In contrast, Mr. Ruffin’s “ephemeral elbow jerk in response to a police officer reaching towards his shoulder did not amount to ‘resisting a police officer.”  Id. at 11. 

• The “APO statute does not criminalize every refusal to submit to a police officer or every prevention or hindrance of an officer in his duties.”  Id. at 11 (quoting J.S., 19 A.3d at 331).

Of Note on Felony Threats:

•   “[T]he context of the felony threats statute indicates that its use of ‘person’ is limited to natural persons, thereby excluding threats to property owned by artificial entities—particularly the District of Columbia[.]”  Id. at 30. 

• The Court rejected the government’s secondary argument that Mr. Ruffin violated the felony threat statute by threatening a vehicle in which Officer Pena had a possessory interest: “[O]wnership—not a property interest—is an element of the felony threats statute.  The felony threats statute does not protect victims with interests in, but not ownership of, the threatened property.”  Id. at 29.

How to Use:

In analyzing the APO statute, the Court emphasized that Mr. Ruffin was “surprised” and “startled” when he turned and saw Officer Amaya.  Id. at 3.  Under these circumstances, the government failed to show that Mr. Ruffin’s act of pulling away from Officer Amaya was anything other than a “mere reflex.”  Id. at 3.  The Court’s reasoning can be useful in a situation where a client has been taken by surprise and is reacting reflexively to being handled by police.

One Reckless Act? Beware a Decision on Merger -- Multiple Counts of Destruction of Property May Not Merge

 

Vines v. United States, No. 11-CF-843 

(amended opinion; original issued July 11, 2013)

Players:  Fisher, Easterly, King.  Opinion by Judge King.  Opinion concurring in part and dissenting in part by Judge Easterly.  Edward F.C. Gain, Jr. for Mr. Vines.  Trial judge:  William M. Jackson. 

Facts:   Mr. Vines was charged with a number of different crimes, for events surrounding two robberies committed on July 26, 2010, and a high-speed chase that occurred in the course of the police attempt to apprehend him on July 27, 2010.  The only issue of note in the opinion arises from the two counts of malicious destruction of property that were charged, which were based upon the two cars that were hit when Mr. Vine drove his SUV down the wrong side of the road near Washington Circle, colliding with two vehicles in an intersection. 

Issue:  Did the two counts of malicious destruction of property merge? 

Held:  Because the testimony established two distinct collisions with two separate vehicles and two separate victims, the two counts of malicious destruction of property did not merge. 

Of Note:

·         “That Vines committed a single reckless act does not control our analysis.”  Vines, slip op. at 11. 

·         “As to malicious destruction of property, we understand D.C. Code § 22-303 to contemplate a new offense for each new victim.”  Vines, slip op. at 12.

·         “Accordingly, we read § 22-303 as contemplating a separate offense as to the destruction of each separate victim’s property, rather than the destruction of ‘property’ in some more-general sense.”  Vines, slip op. at 13. 

·         The majority views its holding as consistent with Carter v. United States, 531 A.2d 956 (D.C. 1987), and Johnson v. United States, 883 A.2d 135, 144-45 (D.C. 2005), noting that in each of those cases, the damage to the two different vehicles “was clearly simultaneous,” and was not the result of “a separate incident,” as it was in Mr. Vines’s case.  Vines, slip op. at 15 n.10.

·         Judge Easterly dissented, contending the majority was wrong in its conclusion that the Council intended to protect individual property interests when it enacted the malicious destruction of property statute.  Vines, slip op. at 37.  She noted that the damage done to the two vehicles here resulted from one reckless act, during which Mr. Vines’s vehicle collided with two different cars.  In her view, because the record established no “fork in the road” whereby Mr. Vines could have avoided hitting the second car but chose not to do so, the counts should merge.  Vines, slip op. at 38.

How to Use:

It will be important to confine the holding of Vines to its facts, because the broad language used by the majority – taken out of context – could lead to absurd results, as the dissent notes.  See Vines, slip op. at 32 (“If a defendant recklessly collided with a car jointly owned by a married couple, he could receive two sentences for that single act; if he collided with a moving van carrying the property of twenty different individuals and that property was damaged, he could receive twenty sentences for that single act”).  The Vines majority places significant emphasis on the fact that the record, as it viewed it, suggested that there were two distinct collisions; it also believed its opinion to be consistent with Carter and Johnson, noting that the counts properly merged in those cases because the damage to different property interests occurred simultaneously.   In the future, the holding in Vines must be applied with these limitations in mind.  JF

New Limits on the Excited Utterance Hearsay Exception: Two Hours to Reflect? Then It's Not Excited

Castillo v. United States, 12-CM-161 (decided August 29, 2013)

Players:  Glickman, Oberly, Newman.  Opinion by Oberly.  PDS for Mr. Castillo.  Trial judge: Morrison.

Facts:  Mr. Castillo was accused of groping his teenaged stepdaughter, E.M.  Her brother, Francisco, called 911 at two o’clock on Christmas morning and calmly stated that he had seen “something inappropriate” between his sister and Mr. Castillo.  At trial, Francisco and E.M. both testified that they had been intoxicated and remembered little of the incident.  Two police officers, however, testified that after they responded to the scene, a distraught E.M. and Francisco each stated that Mr. Castillo had touched E.M.’s breast.  These reports were the sole basis for the trial court’s guilty verdict.

Issue:  Whether the trial court erred in admitting E.M. and Francisco’s reports of a touching under the excited utterance exception to the rule against hearsay.

Held:  The trial court erred in admitting the reports, since the government had failed to establish that that they were “‘made within a reasonably short period of time after the [exciting] occurrence so as to assure that the declarant[s] ha[d] not reflected upon [their] statement[s] or premeditated or constructed’” them.  Castillo, slip op. at 12-13 (quoting Odemns v. United States, 901 A.2d 770, 777 (D.C. 2006)).  Here, the alleged touching could have happened as early as midnight, and the officers did not arrive until after the 911 call, leaving a possible “two-hour time span, at least” between the exiting event and the siblings’ reports.  Id. at 16-17. 

Of Note:

• For a statement to qualify as an excited utterance, “there must be some evidence from which a finder of fact can reasonably infer that the statement was made within a reasonably short period of time after the startling event.”  Id. at 15. 

• The Court held that the “two-hour times span . . . [left] plenty of time for reflection,” and noted that it has “[r]arely, if ever, . . . upheld the admission of statements made more than one hour after the alleged incident, unless the declarant was a young child, or the incident was especially serious.”  Id. at 17 (citations omitted)

• “The seriousness of the startling event”—here, “a relatively minor assault”—“is relevant to the determination of whether the utterance occurred within a reasonably short period of time such that it was made spontaneously and without reflection.”  Id. at 18.

•  The Court noted that Francisco’s calm 911 call also indicated that his excitement when speaking to police was “more likely” caused by reflecting on the incident than by its “‘fresh emotional impact,’” as required for an excited utterance.  Id. at 20-21 (quoting In re L.L., 974 A.2d 859, 863 (D.C. 2009)).

How To Use:  Regardless of the declarant’s demeanor when making an inculpatory statement,  the statement cannot be admitted as an excited utterance unless the government establishes that it was made close enough in time to the exciting event that the declarant was unable to reflect—generally, within no more than one hour.  Even when the interval is less than one hour, defense counsel can argue against admission by emphasizing the relatively low severity of the exciting event and highlighting evidence that the declarant did calm down or reflect—however briefly—before making the proffered statement.  FT.