Want to stop a car just because there’s a decorative frame around the license plate? Nope, gun and ammo suppressed!

Roosevelt Whitfield v. United States, No. 11-CF-1451 (decided September 18, 2014)

Players:  Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS for Appellant.  Motions judges Anthony Epstein and Robert Morin.

Facts:  Police stopped a car with Texas plates solely because a license plate frame obstructed the words “Lone Star State” at the bottom of the license plate.  The license plate number and state name were legible and unobstructed.  The driver of the car was Roosevelt Whitfield, a member of the U.S. Air Force who also worked as a bank security guard.  During the traffic stop, an officer saw a firearm holster inside the car in plain view.  Police asked whether Mr. Whitfield had any weapons, and when they thought he appeared nervous, they conducted a protective pat-down and again asked whether he had any weapons.  Mr. Whitfield disclosed that he had a .38 caliber handgun in the car.  Officers found the loaded firearm and extra ammunition and arrested Mr. Whitfield.  The firearm was registered in Virginia, where Mr. Whitfield lived.  Mr. Whitfield moved to suppress the gun and ammunition, arguing that the traffic stop was unlawful because his license plate complied with the relevant municipal regulations.  After the motion was denied, he entered a conditional plea to attempted CPWL, possession of an unregistered firearm, and unlawful possession of ammunition.  

Issue:  Do the D.C. Municipal Regulations—specifically,18 DCMR §§ 422.5 and 422.6—make it unlawful to have a license plate frame that covers any part of the license plate, even where the plate’s identifying information is not obscured?

Holding:  The municipal regulations do not impose a flat ban on all license plate frames, but rather prohibit only “those materials or attachments that obstruct the identifying information” on the license plate.  Slip op. at 20 (emphasis original).  The traffic stop was therefore illegal and the motion to suppress should have been granted.  

Of Note:

• The Court observed that the regulations appear to impose a flat prohibition against license plate frames if read literally, but after considering the rest of the regulatory context, as well as the legislative history and intent, it determined that the regulatory provisions were ambiguous.  It therefore applied the rule of lenity to resolve the ambiguity in favor of the appellant.

• In finding the regulations ambiguous, the Court placed great weight on the fact that a literal interpretation “would impact countless individuals who drive in the District of Columbia and who have license plate frames on their vehicles.”  Slip op. at 31.  See also id. at 3, 18-19.

• Although the D.C. Council could choose to enact legislation imposing a blanket prohibition against all license plate frames, it would have to use precise language that clearly indicated such legislative intent.  See Slip op. at 29-30 & n.22.  MW

Read full opinion here.

Beware: The trial court can instruct the jury on lesser included offenses during deliberations even though the parties neither requested the instruction nor addressed it in closing arguments

Cedrick Lorenzo Shuler v. United States, No. 13-CF-107 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Fisher, Senior Judge King.  Opinion by Associate Judge Blackburne-Rigsby.  Thomas T. Heslep for appellant.  Trial Judge William M. Jackson.  

Facts:  The trial court instructed the jury on two possible theories on the charge of first degree murder while armed: that Mr. Shuler intended to kill the decedent, or that Mr. Shuler’s intent to kill a bystander transferred to the decedent.  The jury soon asked in a note whether it could consider a lesser offense.  Based on the note, the trial judge informed the parties that he was inclined to instruct the jury on the lesser included charge of second degree murder while armed.  The government agreed with that approach, while the defense objected.   

Issue: Whether the trial court may instruct the jury on a lesser included offense after closing arguments when neither party requested the instruction.

Holding:  Yes.  So long as the timing of the instruction is not unduly suggestive and the defendant is not prejudiced by failing to address the lesser included offense charge effectively, the jury may be given a post-summation supplemental instruction on lesser included offenses.

Of Note:

• If you don’t want the jury to be instructed on lesser included offenses, you’re not out of the woods just because the instruction wasn’t given before deliberations began.  This case suggests two ways to avoid an instruction on lesser included offenses: 
• Timing:  Argue that the timing of the instruction is unduly suggestive.  Here, the instruction was given in response to a question by jurors and no more than four hours into deliberations.  Distinguish your case from these facts. 
• Prejudice:  Argue that the late instruction deprives your client of the opportunity to address the charge effectively or damages arguments you made during closing.  Mr. Shuler objected to the proposed instruction by saying that he would have argued differently during closing arguments had he known the instruction would be given, but the Court found this was insufficient to establish he would be prejudiced by the late instruction.  Mr. Shuler’s defense was that he wasn’t present during the shooting, and the defense did not address the elements of first degree murder during closing arguments.  Distinguish those facts when making a record about how you are prejudiced by a late instruction.

• A reminder: the trial court is entitled to act sua sponte in giving a lesser included instruction, so long as one of the parties affirmatively agrees with the instruction when it is suggested.  Slip op. at 18 (quoting Hawthorne v. United States, 829 A.2d 948, 952 (D.C. 2003)).  NG

Read full opinion here

DCCA announces a new rule for when harassing conduct can be charged as separate counts of stalking

Joy Whylie v. United States, No. 13-CO-480 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Thompson, Senior Judge King.  Opinion by Senior Judge King.  Andrew R. Szekely for appellant.  Trial Judge Robert I. Richter.  

Facts:  When Melody Parker began working at the Psychiatric Institute of Washington, she was warned that Joy Whylie had a penchant for making crank calls to the facility.  Ms. Whylie apparently proceeded to focus her attention on Ms. Parker, and made thousands of harassing phone calls to her between June of 2010 and February of 2011.  On July 16, 2010, Ms. Parker obtained a protective order that prohibited Ms. Whylie from contacting her.  A Superior Court judge entered a criminal stay-away order on December 3, 2010.  Ms. Whylie continued to call Ms. Parker.  In February of 2011, she also called Ms. Parker’s step-mother using “Spoofcard,” a service that made the call look as if it originated from Ms. Parker’s phone.  These phone calls made it appear to authorities that Ms. Parker was violating a separate no-contact order that she had with her step-mother, and led to the mistaken initiation of criminal prosecution against Ms. Parker in Maryland.   Ms. Whylie was convicted of, among other charges, four counts of felony stalking and one count of misdemeanor stalking.  

Issue: Under what circumstances does stalking behavior constitute a separate “course of conduct,” that can be charged as a unique violation of D.C. Code § 22-3133?  

Holding:  Stalking conduct that “could reasonably cause a victim to be frightened in a different way from previous or succeeding conduct (or not to be frightened at all) . . . should be deemed to constitute a separate course of conduct.”  Slip op. at 14.  In addition, “stalking that post-dates a no-contact order can be charged separately from conduct that precedes that court order.”  Id.

Of Note:

• The government was justified in charging the following acts as separate counts of stalking: 
• The more than 1400 calls to Ms. Parker at PIW between June 14 and July 16, 2010, could be charged as one count of misdemeanor stalking.  The conduct that followed the July 16 restraining order could be charged separately, as it constituted conduct post-dating a no-contact order. 
• The nearly 150 calls that Ms. Whylie made to Ms. Parker between December 4 and December 30, 2010, in violation of the December 3 no-contact order.  This conduct could also be charged separately, as it constituted conduct post-dating a no-contact order. 
• The calls that Ms. Whylie made to Ms. Parker’s step-mother between February 5 and February 28, 2011, using the Spoofcard service.   This conduct could be charged separately because they were “designed to engender a different type of fear than the previous calls caused,” slip op. at 17, and therefore “reflected a purpose different from appellant’s purpose in making the previous calls and to have ‘invaded a different interest,’” id. (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988)). 

• However, the government did err in dividing the following acts into two separate charges: 
• The more than 800 calls that Ms. Whylie made between September 12 and October 24, 2010. 
• The more than 700 calls that Ms. Whylie made between November 1 and December 2, 2010. 
• These groups of calls could be charged separately from the pre-restraining order conduct, but could not be charged separately from each other.  There was nothing distinguishing these month-long periods of stalking conduct other than that they each lasted a month, but the Court held that duration alone is insufficient to establish that a series of acts constitutes a separate course of conduct.  Slip op. at 18.  NG
•  Read full opinion here

A defendant’s fear that he had been discovered as a police informant by the decedent who called him a “snitch a** b****” was relevant to the defendant’s claim of self defense.

Troy Richardson v. United States, No. 11-CF-755 (decided August 28, 2014)

Troy Richardson v. United States, No. 11-CF-755

Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Senior Judge Belson.  Edward F.C. Gain, Jr., for appellant.  Trial Judge Gerald I. Fisher.

Facts:  Richardson was initially charged with first-degree murder while armed and carrying a dangerous weapon (CDW) in the stabbing death of Tyrone Wheaton.  After the first trial, the jury acquitted Richardson of first-degree and second-degree murder while armed, but hung on voluntary manslaughter while armed and CDW.  A second trial resulted in Richardson’s conviction on the manslaughter and CDW charges.  Government witnesses testified that after an argument, Richardson stated that he was going to kill Wheaton before stabbing Wheaton who was unarmed.  Wheaton’s two sons, testified as defense witnesses that Wheaton was swinging a crow bar at Richardson when Richardson stabbed him.  Richardson testified that the altercation began when Wheaton approached him and called him a “‘snitch-a** b****’” and then attacked him, hitting Richardson with something hard in his back before Richardson grabbed a knife and stabbed Wheaton.  At the first trial the jury heard evidence that Richardson had “‘snitched’” on Wheaton and his drug dealing operation to the police, a fact that was confirmed by the testimony of a police sergeant.  Richardson testified at the first trial that he was afraid of Wheaton because he believed Wheaton knew he had given information to the police and because “‘once you’re known in the neighborhood as being a snitch [it has] repercussions behind it.’”  Prior to the second trial, however, the government moved to exclude that evidence as irrelevant.  The trial court granted the government’s motion, excluding evidence that Richardson spoke to the police months before the stabbing about drug dealing at Wheaton’s apartment, that the police had executed a search warrant at Wheaton’s apartment, and testimony by Richardson that he believed Wheaton knew he had talked to the police.  The trial judge ordered Richardson not to discuss the matter in his testimony, explaining to him that “‘what you think people may have thought about you, just that view without more, is not relevant … unless you can prove that, in fact, they did have that thought.”         

Issue:  In a self-defense homicide case, was evidence that the defendant previously informed on the decedent’s drug dealing operation, and that the defendant feared that the decedent knew about the defendant’s previous informing activities, relevant to the defendant’s self-defense claim where the decedent allegedly called the defendant a “snitch a** b****” right before the altercation that ended in the decedent’s stabbing death?  

Holding:  The trial court abused its discretion in precluding the evidence as irrelevant.  The issue is not whether the decedent actually knew that Richardson was an informant and therefore actually wanted to harm him, the issue is whether Richardson was reasonably fearful of the decedent, for that reason and/or other reasons.  “We conclude that the trial court required Richardson to prove too much.  The trial court said that the ‘snitch’ evidence could not bridge the gap between what Richardson believed about what Wheaton thought and what Wheaton actually thought.  However, in order to raise self-defense in this case, Richardson did not have to show that his beliefs underlying his self-defense claim were true, only that they were reasonable and honestly held.”  Furthermore, the evidence would have supported Richardson’s testimony that Wheaton called him a “‘snitch-a** b****’” and the evidence would provide context that would make the “‘snitch-a** b****’” remark “seem more ominous and threatening.”  The exclusion prevented Richardson from presenting a complete defense and was not harmless.   

Of Note: 

·         There is some language in the harm analysis that, if taken out of context, could be confusing.  Specifically: “[D]efendants have a right to present crucial relevant evidence establishing a valid defense.  Not all relevant evidence meets this bar.”  (quotations and citations omitted).  This does not mean that when defendants proffer evidence it must be more than relevant – “crucial” – to be admissible.  Relevant evidence should never be excluded because it is not “crucial.”  The question of whether the evidence is “crucial relevant evidence establishing a valid defense” only relates to the appellate court’s determination of which harm standard to apply when a trial court has erroneously excluded relevant evidence.  The “crucial” language is in the Court’s harm analysis, which the Court engaged in only because it had already concluded that the exclusion of relevant evidence – even if it is not “crucial” – was erroneous.  The Court quoted the “crucial” language from harm discussions in other cases, which focused on determining whether the erroneous exclusion of particular evidence in those cases rose to the level of constitutional error, requiring application of the Chapman beyond a reasonable doubt standard, or whether the exclusion was non-constitutional and the Kotteakos harm standard should be applied. JA.

Read the full opinion here.

Prosecutions of APO against US Park Police officers don’t violate the Home Rule Act.

(please note that the photograph above is an image obtained from the internet, which was marked for public use; it does not depict the appellant or the arrest in this case)

Scott Myerson v. United States, No. 12-CM-1642 (decided August 28, 2014)

Players: Associate Judge Blackburne-Rigsby, Senior Judges Pryor and King.  Opinion by Judge Blackburne-Rigsby.  Jeffrey L. Light for appellant.  Trial Judge Juliet J. McKenna.

Facts:  Park Police officers were arresting a pedicab driver for refusing to move his pedicab from a handicap space.  Myerson, another pedicab driver, pedaled up on his pedicab and tried to tow the other pedicab away from the handicap space.  The officers ordered him to release the pedicab and Myerson did so.  Myerson, however, argued with one of the officers.  The officers then issued Myerson a ticket for parking his pedicab in a no parking zone.  Myerson screamed loudly and pulled out his cell phone and held it front of the face of one of the officer’s (presumably to take a photograph or video).  The officer ordered Myerson to put his phone away, but Myerson refused.  The officer then arrested Myerson for refusing the order.  During the arrest, Myerson “‘aggressively pulled his right arm free.’”  In response, the officer forced Myerson to the ground.  In the process of forcing Myerson to the ground, the officer injured his (the officer’s) knee.  Myerson was convicted of misdemeanor APO. 

An off-duty police officer visiting from Pennsylvania provided a written account to the police.  Myerson’s defense counsel sought to speak to the witness, but the witness refused.  The defense sought to subpoena him, but the government refused to provide his address and instead represented that it would call the witness in the government’s case.  At trial, the government did not call the witness.  The government agreed, however, to a continuance of the trial in order to produce the witness.  The defense refused and instead asked that the case be dismissed.

Issue 1:  Does the assault on a police officer (APO) statute violate the Home Rule Act when the complainant is a federal officer?

Issue 2:  Where the defendant does not seek to subpoena a witness based on the government’s representation that it will call the witness in the government’s case, and the government fails to call that witness but offers to produce the witness after a continuance, are the defendant’s constitutional rights to a speedy trial or compulsory process violated?

Holding 1:  The original APO statute originates from a 1953 congressional act that preceded the 1973 Home Rule Act.  The 2006 modification of the APO statute did not exceed the authority of the Home Rule Act that explicitly permitted amendments to Titles 22-24.  Enforcing the APO statute with respect to these federal Park Police officers, who were enforcing local traffic ordinances at the time, did not impede on a “federal function” and therefore did not violate the Home Rule Act

Holding 2:  There was no violation of the defendant’s speedy trial rights because the brief continuances were not unreasonable, and the reasons for the continuances were neutral and valid reasons, and there was no prejudice caused by the delays.  There was no violation of the right to compulsory process because the defendant failed to show that the witness’s testimony would have been favorable to the defense, given that the witness’s statement essentially corroborated the government’s case. 

Read the full opinion here.