Is the emergency ongoing? Two judges say "yes" and one says "no," where the police interrupt a domestic dispute, separate the parties, and ask the complainant "what happened?"

Gary Frye v. United States, No. 12-CM-1438 (decided March 13, 2014)

The Players: Judges Thompson, Easterly, and Farrell.  Opinion by Judge Farrell.  Dissent by  Judge Easterly.  Andrew Murnane for Appellant. Trial Judge: Judge Nash.

The Facts:  Responding to a 911 call, police arrived at a home on Texas Ave., S.E. to find Jewel Parker and Gary Frye arguing at the top of a stair case.   Officers immediately separated the two and placed them in different bedrooms.  When police asked Parker “what [had] happened,” she stated that the two were arguing over Frye’s use of PCP, that she locked herself in a room where she “felt safe,” and that Frye then kicked the door in, grabbed her, shoved her into the floor, and tried to choke her. According to the police, Parker was extremely upset during the interview, was “shaking . . . and . . . crying,” and seemed to need medical attention.

Frye was tried in a bench trial before the Honorable Stuart Nash. Parker did not testify at trial.  Over defense objection, the government introduced the statement Parker made to the police.  At the close of trial, Judge Nash found Frye guilty of simple assault.

Issue: Did the admission of Parker’s statement violate Frye’s Sixth Amendment right to confrontation?

Holding: No. 

The Court held that Parker’s statements were nontestimonial because they were made to help the police meet an “on-going emergency” and not with the primary purpose of producing evidence to be used against Frye at trial.  The Court noted that when officers arrived on the scene, they did not know what happened, saw two individuals fighting, and faced a “fluid and somewhat confused” situation about which they knew almost nothing.  When the officers asked Parker “what happened,” they were concerned with securing the “volatile” situation, not with obtaining evidence.  And when Parker answered them, she was “appeal[ing] for safety,” not trying to “establish facts for an eventual prosecution.”

The Court acknowledged that police had separated Parker and Frye when they questioned her,  a fact significant to the Supreme Court in Hammon v. Indiana.  See Davis v. Washington, 547 U.S. 813 (2006).  But unlike in Hammon, where the police encountered no apparent emergency when they arrived on the scene and where the declarant told police that everything was fine, police discovered Parker and Frye arguing.  Parker remained upset during the interview and was visibly shaking and crying.  This made it highly unlikely that she was trying to give a statement for use in a criminal prosecution.  Further, the Court did not believe that the emergency was over.    Officers still needed to discern whether the children in the house were at risk or in need of social services, and whether Parker needed medical attention. 

Ms. Parker’s “excited” demeanor also supported the Court’s conclusion that the statement was nontestimonial.  Parker’s “acute emotional distress, which made her answers undisputed ‘excited utterances,’ . . . implied that her attention was focused more on ‘ending a threatening situation’ than on ‘proving past events.’”

The Dissent: The dissent criticized the majority’s conclusion that there was an “on-going emergency.”  Parker and Frye were in separate rooms when police questioned her.  The “on-going emergency” exception therefore did not apply.   The dissent also did not believe that the record supported the majority’s conclusion that Parker was “plead[ing] for safety for herself and her children” when she spoke to the police.  “[N]othing in the record indicates that when she spoke to the police she wanted to do anything other than report criminal activity.”  The dissent accused the majority of engaging in impermissible speculation. 

Of Note:  Counsel should argue that even after Frye, the “on-going emergency” exception is a narrow one.  Frye involved a unique group of facts: when police arrived on the scene, they did not know what had happened, and they immediately observed an ongoing argument.  Even when they separated Frye from Parker, the emergency was not obviously over.  Parker had injuries that could require medical attention, and Parker’s children were still running throughout the house.  The situation had not been defused.  Counsel should try to distinguish Frye on this basis.  Further, the police in Frye asked only one question.  Additional police questioning could undermine the inference that they are merely responding to an ongoing emergency.

Read the full opinion here.

D.C. Court of Appeals: Don't try to pick up women if you know or should know they will turn you down. Also, the DCCA creates a new standard for attempt.

Grady Hailstock v. United States, No. 12-CM-1741 (decided March 6, 2014)

The Players: Judges Fisher, Thompson, and Schwelb.  Opinion by Judge Thompson.  Concurrence (dubitante) by  Judge Schwelb.  PDS for appellant. Trial Judge: Ronna Beck.

The Facts:  Mr. Hailstock was charged with one count of attempted misdemeanor sexual abuse and one count of assault. He was tried in a bench trial before the Honorable Ronna Beck. The complainant, C.W., testified that Hailstock, who was a family friend, came into her room while she was sick in bed, shut and locked the door, and climbed into bed with her.  He told C.W. that he was going to “get down.”  C.W. pushed him away and said “no,” at which point Hailstock grabbed her robe and touched her breast.  When C.W. moved away, Hailstock stopped, got out of bed, and left the room.  When questioned by the police later, he stated that his intent was to have sex with C.W., but only “if she consented.”

The trial court’s ruling: Judge Beck convicted Hailstock on both counts.  She found that Hailstock intended to have penis-to-vagina contact with C.W., and that when Hailstock got into C.W.’s bed and touched her, he knew or should have known that C.W. would not want to engage in a sexual act with him.  She also found that Hailstock came “dangerously close to committing the alleged misdemeanor sexual abuse.” 

Critically, Judge Beck noted that she could not find beyond a reasonable doubt that Hailstock intended to have sex with C.W. without her consent or that “it was his intention from the beginning to engage in sex that was non-consen[s]ual,” i.e., “where there was affirmative rejection of the interest in sex.”  Nonetheless, she convicted Hailstock of attempted misdemeanor sexual abuse.

Issue 1:  Was there sufficient evidence that Hailstock intended to commit the planned sexual contact with an actual understanding that he lacked permission or with an objectively unreasonable disregard as to the circumstances showing a lack of permission?

Holding: Yes.  

The Court first concluded that Judge Beck’s findings were limited to whether Hailstock intended to have sexual intercourse without C.W.’s consent.  According to the Court, Judge Beck never opined on whether Hailstock intended to have sexual contact – which only requires penis-to-vagina contact – without her consent.  The Court acknowledged that she used these two phrases interchangeably throughout her ruling, but nevertheless concluded that she was only referring to Hailstock’s intent to have intercourse.  Her findings, therefore, did “not preclude a holding that [Hailstock] lacked the requisite mental state.”

Next, the Court concluded that even if Judge Beck found that Hailstock never intend to have sexual contact without C.W.’s consent, he was still guilty of attempted MSA.  So long as he intended to have sexual contact with C.W. and formed that intent at a time when he should have known she would not consent, he was guilty of attempt MSA.  The Court rejected defense counsel’s argument that the government had to establish that Hailstock would have recklessly proceeded without regard to C.W.’s consent. 

Issue 2:  Did Hailstock come “dangerously close” to committing the sexual act or contact?

Holding: Yes.  The Court held that to commit an attempted crime, the government must prove that “except for some interference,” a defendant’s overt acts “would have resulted in commission of the completed crime,” or that the defendant has taken a “substantial step toward commission of the crime.”  The Court stated that Hailstock took substantial steps.  He went into her bedroom, got into bed with her, and tried to touch her even after she said no.  The court also stated that C.W.’s resistance is what stopped Hailstock from pursuing the sexual contact, not Hailstock’s own intent. 

Judge Schwelb’s Concurrence (dubitante):  Judge Schwelb stated that he was “barely” prepared to join his colleagues, but he found that Hailstock’s earlier actions – locking the door and assaulting C.W. on the bed – were “arguably sufficient under the statute.”

Of Note:

The Court altered the requirements to prove attempt.  Under this Court’s previous cases, the government must show that the defendant came “dangerously close” to completing the offense to prove attempt.  In other words, the government must show that but for some external interference, he would have committed the crime. Under the Hailstock Court’s analysis, the government must show only that the defendant has taken “substantial steps” toward committing the crime.  The Court cites no criminal opinions from the DCCA standing for this novel proposition.  Rather, it cites disbarment cases that cite to federal law.  

Counsel should argue that this Court’s earlier opinions control under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).  Under those cases, a defendant is not guilty of attempt unless the government proves that the defendant came “dangerously close” to committing the crime.  Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).  JB.

Read full opinion here.

Beware "civility" instructions that encourage deadlocked juries to reach a verdict.

Charles A. Grant v. United States, No. 11-CM-1134 (decided February 20, 2014).

Players:  Judges Blackburne-Rigsby, Easterly and King.  Opinion by Judge King.  Anna Scanlon for appellant.  Trial Judge:  Herbert B. Dixon.

Facts:   Mr. Grant was charged with one count of bias-related threats, bias-related assault, and two counts of possession of a prohibited weapon (bottle and knife), for allegedly threatening the complainant during a verbal altercation on a sidewalk, calling him a homophobic slur, throwing a bottle at him, and running towards him with a knife in hand.  Mr. Grant was ultimately acquitted of all counts except the bias-related threats count.  During deliberations, the jury sent three notes.  The first, close to four hours into deliberations, read, “We, the jury, can’t come to agreement of the identity of the assailant beyond a reasonable doubt.  We need further instructions.”  The trial court responded by instructing the jury, inter alia, that they should deliberate further and “keep an open mind about the case.”  The next day of deliberations, the jury sent a note saying, “We as a jury are hung.”  Both parties requested a Winters instruction, and the court gave an anti-deadlock instruction similar to that used in Williams v. United States, 52 A.2d 25, 45 (D.C. 2012). 

The third note was signed by a juror other than the foreman and read:  “The environment in our jury room has become very difficult.  Our ability to incorporate your most recent directions into our deliberations has become almost impossible.  Please advise us of our options.”  The note also contained a comment in a different handwriting:  “Jury members have been personally ‘targeted’ by juror members as doing ‘a piss poor job.’”  Because the trial judge was dealing with another jury at the time the note came in, he proposed that he and counsel go to the jury room and that he read them the note to the jury and tell them he would “look into” it and talk to them about it the next day.  Defense counsel objected to reading the note to the jury, but did not object to the procedure occurring in the jury room.  The next day, when the parties reconvened, defense counsel moved for a mistrial saying further deliberations would be inappropriate at this point.  The mistrial motion was denied.  The trial judge then read the jury what the Court of Appeals labeled a “civility” instruction, although the instruction included abundant language urging the jury to continue deliberations with an eye towards achieving a verdict.  After the trial court read the instruction defense counsel lodged some objections to its language and moved again for a mistrial.  The motion was again denied.  The jury returned a verdict soon after. 

Issues:  (1) Whether the court violated Super. Ct. Crim. R. 36-I by conversing with the jurors off the record in the jury room and whether that violation warrants reversal, and (2) whether the final instruction given by the trial judge was impermissibly coercive, warranting reversal. 

Holding:  On the Rule 36-I issue, the Court of Appeals held that the rule was violated but reversal was not warranted because Mr. Grant was not prejudiced.  On the coercion issue, the Court of Appeals dismissed the claim that a mistrial should have been granted with virtually no analysis, stating merely that trial courts have discretion to determine how to instruct jurors who are having trouble deliberating.  The Court focused the bulk of its attention on the so-called “civility instruction,” which it ultimately concluded was erroneous for at least two reasons:  (1) the trial court erred in telling the jury that its “purpose” was to reach a verdict, and (2) the trial court erred by omitting language to remind jurors that they should not surrender their honest convictions to secure agreement, because trial courts must “temper” any message that agreement is desirable with such language.  The Court of Appeals did not reverse, however, because it applied a plain error standard of review.  Although trial counsel had moved for a mistrial, counsel had not lodged objections to the instruction that paralleled the arguments raised (by new counsel) on appeal.  For this reason, the Court of Appeals held that plain error review applied.  And while the Court found there was error (and declined to decide whether the error was plain), it ultimately affirmed because it found that the appellant failed to demonstrate prejudice. 

Of note:  Trial counsel should make sure that they continue to be vigilant in articulating their objections when their initial requests are denied.  If a trial judge is going to give an instruction in lieu of a mistrial, as happened here, counsel must scrutinize the instruction for impropriety and request appropriate modifications.  In the jury coercion context, instructions must be balanced and cannot tell the jury that its purpose is to reach a verdict.  JF.

Read the full opinion here. 

Judicial No-No: Defendants are entitled to be resentenced by a different judge where trial judge warned them that “there will be jail time” if they rejected the government’s plea offer and went to trial.

Lindsay & Davis v. United States, Nos. 12-CM-1211 and 12-CM-1336

(decided Jan. 30, 2014)

Players: Fisher, Blackburne-Rigsby, King.  Opinion by Judge Fisher.  Joel R. Davidson for Ms. Lindsay.  David Carey Woll for Mr. Davis.  Trial judge: Brian Holeman.

Facts:  Ms. Lindsay, Mr. Davis, and a third (ultimately acquitted) co-defendant were charged with simple assault.  At a status hearing, the co-defendant announced that she was rejecting the government’s plea offer of a deferred sentencing agreement.  The trial judge then warned all three defendants that, if they were to reject the plea offer, go to trial, and be convicted of simple assault, “there really isn’t a question of whether there will be jail time because there will be” and that the only question will be “how much,” so they would be taking a “risk” in rejecting the plea offer (slip op. 3).  Despite this admonition, all three defendants rejected the government’s plea offers and went to trial.  After finding Ms. Lindsay and Mr. Davis guilty, the judge sentenced them both to a period of incarceration.  On appeal, the appellants requested resentencing by a different judge.

Held:  The trial judge’s statements “raise at least three fundamental concerns” (slip op. 5).  First, “they could be perceived as judicial participation in plea negotiations” in violation of Criminal Rule 11 (slip op. 5).  Second, they created an “unacceptable risk” that appellants were punished for exercising their Sixth Amendment right to go to trial (slip op. 6).  And third, it appeared that the trial judge “automatically incarcerated appellants according to a uniform policy,” which is an abuse of discretion under Houston v. United States, 592 A.2d 1066, 1068 (D.C. 1991), and other cases (slip op. 7).  In light of these issues, appellants were entitled to resentencing by a different judge. 

Of note:   

• This is one of several recent cases in which the DCCA has found that a trial judge abused his or her discretion by appearing to employ a “uniform policy” rather than exercising individualized judgment about a discretionary decision.  See Leander v. United States, 65 A.3d 672, 676-77 (D.C. 2013); Barbett v. United States, 54 A.3d 1241, 1246 (D.C. 2012).
• It is also the second case in recent years in which the DCCA has ordered resentencing by a different judge where it appeared that the original sentencing judge gave the defendant a harsher sentence as punishment for exercising a constitutional right.  See Thorne v. United States, 46 A.3d 1085 (D.C. 2012).  CM.

Read full opinion here

Trial judges are not obligated to conduct a “knowing and voluntary” inquiry when a defense lawyer strategically concedes guilt on lesser charges – a strategic concession like this is not tantamount to a guilty plea

Denardo Hopkins v. United States, No. 12-CF-745

(decided Jan. 30, 2014)

Players: Glickman, Blackburne-Rigsby, Nebeker.  Opinion by Judge Glickman.  T. Gail Maddox-Levine for Mr. Hopkins.  Trial judge: Florence Pan.

Facts:  When two MPD officers interrupted a craps game in which Denardo Hopkins was participating, Mr. Hopkins got up and ran.  A foot chase ensued, and the pursuing officer testified that he saw Mr. Hopkins throw an object that “hit the wall and fell to the ground with a metallic clang” (slip op. 2).  The officer caught up to Mr. Hopkins and patted him down, finding fifty-one “zips” of cocaine and heroin and $230 in his pocket.  The officer also claimed to have gone back and seen a semiautomatic pistol in the location where he saw Mr. Hopkins throw something.

Mr. Hopkins was charged with two counts of possession with intent to distribute (PWID) while armed and five weapons counts.  In his opening statement, Mr. Hopkins’s lawyer told the jury that Mr. Hopkins conceded the PWID counts but contested that he had a gun.  After a trial premised on that theory, the jury convicted Mr. Hopkins of the two unarmed PWID charges but deadlocked on the “while armed” enhancements and the five weapons counts.  The trial judge declared a mistrial on the gun counts and sentenced Mr. Hopkins to three years in prison for the drug charges.

Issue:  Were the defense lawyer’s concessions of the PWID charges in his opening statement “functionally equivalent to guilty pleas,” thereby requiring the trial judge to conduct an inquiry, pursuant to Criminal Rule 11, to ascertain that Mr. Hopkins “knowingly and voluntarily agreed to the concessions of guilt”?

Holding:  No.  The purpose of the Rule 11 inquiry is to ensure that the defendant understands the constitutional rights he is waiving and that he is doing so voluntarily.  Defense counsel’s concession did not relinquish any of Mr. Hopkins’s constitutional rights, which he in fact exercised at trial.  Although “[i]n some cases, an attorney’s concession at trial of the defendant’s guilt might support a claim of ineffective assistance of counsel,” (slip op. 13), in this case counsel’s concession “was a reasonable and evidently fruitful trial strategy,” (slip op. 14), and Mr. Hopkins did not contend otherwise.

Of note:  The Court leaves open the possibility that, in some cases, a concession of guilt might require judicial inquiry à la a guilty plea, such as where the trial judge “has reason to question whether a concession was made against a defendant’s wishes or may otherwise signal representational problems.” (slip op. at 14).  CM.

Read full opinion here 

Blast from the past! Big decision in September on several issues pertinent to cases involving an insanity defense. Plus a useful Second Amendment holding.

Otis Jackson v. United States, No. 07-CF-1216

(decided Sept. 26, 2013)

Players: Glickman, Beckwith, Ferren.  Opinion by Judge Beckwith.  Deborah Persico for Mr. Jackson.  Trial judge: Neal Kravitz.

Facts:  Otis Jackson killed his brother in their family home with a hammer, shotgun, and pistol.  Witnesses testified that Jackson and his brother had not been getting along in the months before the homicide, and that Jackson had threatened to kill his brother.  Jackson denied ever having threatened his brother and claimed that he killed his brother because he believed his that brother was possessed by a demon trying to kill him.  He raised this defense both in the form of an imperfect self-defense claim and a separate insanity defense.

The trial court granted Jackson’s request to bifurcate the trial into two phases (merits and responsibility) on the ground that a unitary trial would prejudice Jackson’s merits defense because the jury might consider the government’s psychiatric experts as undermining Jackson’s credibility; however, the court denied Jackson’s request to have a different jury decide the insanity phase, finding that Jackson’s defenses in both phases were consistent with one another.  The jury found Jackson guilty of the charges and rejected his insanity defense.  

Issue 1:  Did the trial court abuse its discretion in denying Mr. Jackson’s request to have different juries decide the merits and insanity phases of the bifurcated trial?

Holding 1:  No.  Because Jackson’s merits and insanity defenses were fundamentally consistent, he was not prejudiced by having the same jury decide the insanity phase that had decided the merits phase.

Issue 2:  Did the trial court err in barring Mr. Jackson from putting on expert testimony in the merits phase regarding Mr. Jackson’s abnormal thought processes in order to negate the government’s proof of mens rea?

Holding 2:  No.  In Bethea v. United States, 365 A.2d 65 (D.C. 1975), the DCCA held that there is no “diminished capacity” defense in D.C. and, therefore, a defendant may not “us[e] expert testimony of a mental abnormality to claim that, because of the mental condition, he lacked capacity to form the required mens rea” (slip op. 29).  Although Jackson characterized the proffered expert testimony as mere “observation evidence,” an amorphous category of evidence distinct from “capacity” evidence that the Supreme Court recognized  in Clark v. Arizona, 548 U.S. 735 (2006), the Court found that, at bottom, Jackson sought the expert testimony to “differentiate between his mental capacity and that of a normal person, (slip op. 36), which was precisely the sort of “diminished capacity defense” barred by Bethea.

Issue 3:  Did the trial court commit plain error in ruling that Jackson could not present expert testimony on “the ultimate issue” of criminal responsibility—i.e., testimony that his conduct was not “causally related to his mental condition”?

Holding 3:  Yes.  Case law is clear that experts can render opinions on “ultimate facts,” and Bethea made clear that this rule applies in insanity cases (slip op. at 38 (quoting Bethea, 365 A.2d at 82 (“there should be no ban on expressions of causality”))).  (The Court held, however, that the judge’s plain error was not reversible because Jackson was not prejudiced.)

Issue 4:  Did the trial court abuse its discretion in barring Jackson from recalling, in its rebuttal on the insanity phase, an expert witness who had already testified in the defense’s case-in-chief?

Holding 4:  No.  The trial court denied rebuttal on the ground that the expert would have largely repeated what he had already testified about.  This was a valid ground for exclusion.

Issue 5:  Does the fact that Jackson used his gun to commit a crime—to wit, murdering his brother—foreclose a Second Amendment challenge to his convictions for carrying a pistol without a license (CPWL) and possession of an unregistered firearm (UF), which were obtained at a time when the District’s ban on handguns held unconstitutional in District of Columbia v. Heller, 554 U.S. 570 (2008), was still in place?

Holding 5:  No.  “[T]he CPWL and UF charges did not punish a particular use of the pistol beyond merely possessing and carrying it” (slip op. 55).  Thus, if Jackson “had been able, prior to his offenses here, to obtain a registration and license for his gun”—that is, if the District’s unconstitutional ban on licensing and registering handguns had not been in place—then “the government would not have succeeded in charging him with CPWL and UF” (slip op. at 55).  Accordingly, the fact that he had used the gun for an unprotected (e.g. criminal) purpose is irrelevant; the only relevant question for resolving Jackson’s Second Amendment claims was whether, prior to his arrest, he would have been qualified to register his handgun absent the total ban on registering and licensing handguns.  Because the record did not speak to that question, Jackson was entitled to a remand under Plummer v. United States, 983 A.2d 323 (D.C. 2009), to determine whether he was “disqualified from registering the handgun for constitutionally permissible reasons,” Magnus v. United States, 11 A.3d 237, 242-43 (D.C. 2011).    

Of note:                  

·         On the bifurcation issue:  The Court rejected the government’s argument that because the trial court could have, within its discretion, denied bifurcation altogether, then a fortiori it “cannot have abused its discretion” in not requiring separate juries (slip op. 13).  A judge who grants bifurcation must still exercise his or her discretion properly to ensure that the way the bifurcation proceedings are conducted do not prejudice the defendant. 

·         On the expert testimony issue:  The Court rejected a broad reading of Bethea that would bar all expert testimony on the issue of mens rea (other than through an insanity defense).  Rather, the Court held, Bethea bars only expert testimony going to a diminished capacity defense.  Thus, it was “not decisive . . . that Mr. Jackson wanted to use expert testimony to argue that he did not have the required mens rea,” as the defense may still, under Bethea, present expert testimony regarding the defendant’s mens rea when it supports “defenses that have nothing to do with a claim of diminished capacity,” such as battered women’s syndrome or imperfect self-defense (slip op. 30).  In this case, however, Jackson’s proposed expert testimony was “the kind of capacity evidence at the core of the Bethea rule” and thus inadmissible (slip op. 36).

·         On the Second Amendment issue:  The Court distinguished Gamble v. United States, 30 A.3d 161 (D.C. 2011) (holding that the defendant’s CPWL conviction was not unconstitutional because he carried his gun concealed and “there is no Second Amendment right to carry a concealed weapon”), noting that it was “clear from the trial judge’s ruling in Gamble . . . that the conduct being punished there actually was the concealed carrying of the pistol,” (slip op. 55), whereas here Jackson was being punished only for his “failure to make his gun possession legal,” i.e., his lack of a registration and license (slip op. 57).  

How to use:

·         Insanity cases:  Jackson analyzes in some depth a number of important issues that arise in cases involving insanity defenses.  If you have a case, either at trial or on appeal, involving an insanity defense, it would behoove you to give Jackson a close reading.

·         For appellate practitioners:  Jackson rejected the government’s argument (on Issue 3) that the Bethea rule that experts can testify on the ultimate question of causality was not “plain,” for the purposes of “plain error” review, because there was some “conflicting language” in the cases on the issue—the Court found that the language the government cited was not “truly conflicting” (slip op. at 38).  Thus, Jackson might be useful in plain error cases where the government makes a similar “conflicting language” argument.    

·         Second Amendment cases:  One of the government’s go-to arguments in Second Amendment cases is that the defendant’s as-applied Second Amendment challenge fails because some aspect of his conduct (e.g., the manner in which he carried the weapon, the use he made of it, etc.) was “not constitutionally protected”—even though the statutes under which the government is prosecuting him have nothing to do with that fact. Jackson exposes the fallacy of that type of argument: if the government prohibited Jackson from registering and licensing his handgun for a constitutionally impermissible reason, then it is unconstitutional to punish him for not having a registration or license, regardless of how he ultimately used the gun (e.g., whether he used it for self-defense or to commit an assault).  Jackson will thus be very helpful to rebut any argument by the government that the defendant loses his Second Amendment challenge to a weapons possession statute was not “constitutionally protected”—Jackson’s Second Amendment rights could be violated notwithstanding that he used his gun to commit a murder.   CM.

Read full opinion here.

A Friday the 13th Special: The Government Can Deny Immunity to a Crucial Defense Witness if It Reasonably Believes the Witness Is Lying

Jermyl Moody v. United States, No. 10-CF-181

(decided December 13, 2013)

Players:  Judges Fisher, Oberly, and Ruiz.  Opinion by Judge Fisher.  Dissenting opinion by Judge Ruiz.  Thomas D. Engle and Sharon L. Burka for appellant.  Trial Judge:  Lynn Leibovitz.

Facts: Police officers stopped Mr. Moody’s car and found a briefcase on the rear floorboard that contained a handgun, marijuana, and pills that were mostly fake ecstasy (although a few were real ecstasy pills).  Mr. Moody told the officers that the briefcase was his (and declined to open it because he falsely claimed it held nude photographs of his wife).  At trial, however, Mr. Moody presented evidence that the briefcase belonged to someone named Leroy.  Mr. Moody was convicted of all charges.

Mr. Moody moved for a new trial on the grounds that he had located the backseat passenger, Leroy Odom.  Mr. Odom had signed a written statement that the items in the briefcase were his, but he would testify only if the government gave him immunity.  The trial court employed the procedure approved in Carter v. United States, 684 A.2d 331 (D.C. 1996) (en banc), for when a defense witness invokes his Fifth Amendment privilege against self-incrimination.  The government debriefed Mr. Odom and declined to grant him immunity because the government believed Mr. Odom would be committing perjury.  The government based this belief on: (a) Mr. Odom’s statements that was in a “crack haze” and very drunk on the night in question, (b) Mr. Odom’s contention that he couldn’t remember the contents of the briefcase other than the gun and the pills, could not recall the brand of the gun, and could not (or would not) say how he got the gun; and (c) inconsistencies about which Metro stop he had been dropped off at and where has was at the time of trial.  The court found that the government’s decision to not grant immunity was reasonable and thus declined to sanction the government for its refusal to grant immunity.  The court also found, based on the prosecution’s and Mr. Odom’s counsel’s descriptions of Mr. Odom’s statements during the debriefing, that Mr. Odom’s testimony would be “highly incredible” and thus was unlikely to lead to an acquittal.

Issue: Assuming without deciding that the Carter procedure applies in the context of a motion for a new trial, whether the trial court abused its discretion in (a) accepting the government’s reason for not granting immunity to Mr. Odom; and (b) finding that the proffered testimony would not likely produce an acquittal at a new trial. 

Holding: The trial court did not abuse its discretion in deferring to the government’s decision not to grant immunity to the defense witness on the ground that the witness’s proposed testimony constituted perjury.  The trial court also did not abuse its discretion in finding, based on the descriptions of Mr. Odom’s statements during the debriefing, that his testimony was too incredible to likely produce an acquittal at a new trial. 

Of note: Under the majority’s reasoning, the government need only proffer an objectively reasonable belief for concluding that a defense witness is lying.  If the government does so, the trial court must defer to the government’s decision to deny immunity.  This will assuredly happen in many instances when a defendant invokes Carter.  Any time a defense witness is prepared to testify that he committed the crime rather than the defendant, the government is sure to deem that testimony perjury — after all, if the government believed the defense witness, it would have to dismiss the charges.  And the government will often be able to provide a reasoned basis for disbelieving the witness; Mr. Odom’s drug problems and inconsistencies are not particularly uncommon.  And, as the dissent points out, there was a lot of corroboration for Mr. Odom’s claim that the briefcase was his.  A rational jury could easily have credited Mr. Odom’s testimony had they heard it.  So where does that leave Carter’s concern that the government’s denial of immunity to a crucial defense witness would cause a “distortion of the fact-finding process”?  What could distort the fact-finding process more than letting one of the litigants conclusively decide whether an adverse witness is lying? --DG

Read full opinion here