Ineffective assistance of trial counsel reversal

Travis Haney v. United States (decided July 23, 2015).

The Players: Judges Glickman and Blackburne-Rigsby, Senior Judge Reid.  Opinion by Senior Judge Reid.  PDS for Travis Haney.  Trial Judge: Ronna L. Beck.

The Facts: Trial counsel had failed to file a motion to suppress Mr. Haney’s custodial statement on Miranda grounds even though the videotape showed that Mr. Haney asserted his right to remain silent after the detective kept accusing him of the shooting.  The detective simply ignored Mr. Haney’s invocation of Miranda and kept grilling him.  The government introduced at trial an excerpt from the video – the portion immediately following the Miranda violation – in which Mr. Haney stated that he knew that the victim had snitched on “his man” (Deangelo Foote) and put him in prison, that he could see the victim’s fear of him in her eyes every time he passed her on the street, and repeatedly calling the victim a b*tch.  The prosecutor highlighted Mr. Haney’s remarks in her closing and rebuttal arguments, arguing that Mr. Haney was motivated to kill the victim because she had snitched on his friend, and quoting his hateful language.  During post-conviction proceedings, the trial court ruled that trial counsel had rendered deficient performance by failing to move to suppress a statement that would have been suppressed had a motion been filed, but denied a new trial under the second prong of Strickland, ruling that Mr. Haney had failed to show a reasonable probability of a different outcome had the statement been suppressed. 

The Holding: The DCCA disagreed, holding that Mr. Haney had met the Strickland prejudice standard.  The Court reinforced several important rules of law for applying this standard, including:  1) the trial judge erred by relying on her personal estimation that admission of Mr. Haney’s statement was not prejudicial. She thought that the victim’s identification was compelling, that defense-favorable evidence was not, and that the motive established by Haney’s statement did not hurt him because it was a weak motive. The question under Strickland is not what evidence the judge found persuasive, but what evidence reasonably could have influenced the jury; and 2) Haney was prejudiced by the government’s emphasis on his damaging words in closing and rebuttal arguments. SF

Read full opinion here.

Important Ruling Under Edwards and Shatzer; Improper Comments in Closing Arguments

Gregory Trotter & Ernest Pee v. United States (decided July 23, 2015)

The Players: Judges Glickman and Blackburne-Rigsby, and Senior Judge Reid. Opinion by Judge Glickman. PDS for Mr. Trotter.  Steven R. Kiersh for Mr. Pee. Trial Judge: Gerald I. Fisher.

Facts:  Two check-cashing stores were robbed by two men with similar descriptions.  During one robbery, a proprietor of the store was shot in the head and killed.  The shooter left behind a hat and cell phone, both of which were tied to Mr. Trotter.  The robbers were seen leaving the robbery in a car that belonged to Mr. Pee's girlfriend, and there was testimony that Mr. Pee was driving the car that day.

Mr. Pee was arrested for armed robbery and murder. While in police custody, he first waived his Miranda rights but later asserted his right to counsel. The questioning ended. He was then charged, appointed counsel, and detained at D.C. jail pending trial. Five months later, while still in pretrial detention, he was arrested and charged with a different armed robbery. Police read him his Miranda rights, and he waived them and answered questions. 

The trial judge denied a motion to suppress Mr. Pee's statements on the ground that five months had passed between the invocation and the second interrogation, that Mr. Pee had received counsel in the interim, and that he waived his rights at the outset of the second interrogation.

Issue 1: Did the police violate Edwards v. Arizona, 451 U.S. 477 (1981), by initiating the second interrogation of Mr. Pee after he had asserted his right to counsel during the first interrogation?

Holding 1:  Yes, the trial court should have granted the suppression motion, but the error was harmless.

Under Edwards v. Arizona, once a suspect asserts his Miranda right to counsel, like Mr. Pee did during the first interrogation, the interrogation must cease and any resumption of the interrogation must be at the suspect’s instigation, not the police’s. The police may not try to recommence the interrogation even about a different crime, Arizona v. Roberson, 486 U.S. 675 (1988), or even after the accused has actually met with counsel in the interim, Minnick v. Mississipi, 498 U.S. 146 (1990).

In Maryland v. Shatzer, 559 U.S. 98 (2010), the Court recognized an exception to Edwards: it held that police may reinitiate the interrogation after a suspect invokes his right to counsel if he has been released from custody and is in the community for at least 14 days. If he is serving a prison sentence when police interrogate him, his “release” by the police into the general prison population counts as well. Here, however, although 5 months had passed between the first and second interrogations, Mr. Pee had neither been released, nor was he returned to serving a sentence. Instead, he was continually held in pretrial custody for the very charges that were the subject of the police interrogations. The trial court erred in ruling that a pretrial detainee was the equivalent of a prisoner returned to the prison population.

Shatzer treated a sentenced prisoner more like someone returned to the community because when he goes back to general population he returns to his “accustomed surroundings and daily routine” and regains the same control over his life as he had before the interrogation. The prisoner would feel less at the mercy of police because his sentence – pre-existing and fixed by a judge – could not be affected by his police interrogators. By contrast, a pretrial detainee is still subject to charging and trial, will not feel at home in jail, and will therefore feel more at the mercy of police interrogators, much like one experiencing Miranda custody at the police station.

Issue 2:  Did the prosecutor's improper comments during closing arguments render the trial unfair?

Holding 2:  Some of the prosecutor's comments were improper, but none establish reversible error in light of the trial court's curative instructions and the strength of the government's case.

It was improper for the prosecutor to say in rebuttal argument that defense counsel was trying to distract the jury from the evidence because he knew the jury would convict his client. It is a no-no to refer to defense counsel’s supposed motives and beliefs, rather than merely refuting his argument.

It was also improper for the prosecutor to start her rebuttal by saying lawyers are taught in law school to argue the facts if they are good for them, the law if that is good for them, and if neither is good, to “deny, deny, deny,” implying that is what the defense is doing.

It was not improper for the prosecutor to respond to defense counsel’s veiled accusation that she had coached witnesses (“Ms. [prosecutor] managed to get them to say” they were “traumatized and all these other excuses”) with the implication that she would never do such a thing. SF

Read full opinion here.

Non-citizens Have a Right to a Jury Trial on Misdemeanor Charges if Deportation Will Be a “Virtually Inevitable” Consequence of Conviction

Jean-Baptiste Bado v. United States (decided July 16, 2015)

Players: Associate Judges Fisher and Thompson, Senior Judge Ruiz. Opinion by Judge Thompson. Concurring opinions by Judge Thompson and Judge Ruiz. Dissenting opinion by Judge Fisher. D.C. Law Students in Court for Mr. Bado. Trial judge: Stuart G. Nash. Motions judge: Jennifer M. Anderson.

Facts: Mr. Bado, a political asylum applicant from Burkina Faso, was charged with three counts of misdemeanor sexual abuse of a child based on allegations that he touched his teenage stepdaughter. He demanded a jury trial on these charges, arguing that trial by jury was required because the possible consequences of conviction—including deportation pursuant to federal immigration laws—were so severe. The motions judge denied that request. After a two-day bench trial, Mr. Bado was convicted of one count of misdemeanor sexual abuse of a child, sentenced to the statutory maximum of 180 days’ incarceration, and ordered to register as a sex offender.

Issue: Does a non-citizen defendant have a Sixth Amendment right to a jury trial on misdemeanor charges that are presumptively petty offenses for Sixth Amendment purposes where the misdemeanor qualifies as an “aggravated felony” under federal immigration law, meaning that conviction would “virtual[ly] inevitabl[y]” result in deportation?

Holding: Yes. When a non-citizen is charged with a misdemeanor that qualifies as an “aggravated felony” under federal immigration law, such that conviction would result in deportation, the offense “must be deemed a serious rather than petty crime for purposes of the Sixth Amendment,” and the defendant is entitled to a jury trial.

Of Note:

• The majority opinion does not reach the question whether any offenses that carry a potential consequence of deportation for non-citizens but do not constitute “aggravated felonies” “should be deemed serious for purposes of the Sixth Amendment jury trial right.”

• In a separate concurrence, Judge Thompson clarifies her position that the fact that a conviction will render a non-citizen deportable is not enough to trigger the Sixth Amendment jury trial right. In her view, it is the categorical unavailability of relief from deportation for those convicted of “aggravated felonies” that shows that Congress regards these offenses as “serious in the Sixth Amendment sense.”

• Senior Judge Ruiz’s concurrence takes the broader view that because the Sixth Amendment analysis “looks to the ‘severity of the maximum authorized penalty’ in assessing whether an offense is serious and warrants the right to a jury trial,” an offense is “serious” if the immigration statute authorizes deportation as a consequence of conviction, regardless of “whether implementing officials have discretion to grant relief to certain limited classes of individuals or are precluded from doing so.” 

• In dissent, Judge Fisher explains his belief that deportation is not “the type of penalty that counts for purposes of determining the right to a jury trial.” MW

Read full opinion here.

Breaking: DCCA grants rehearing en banc to consider mens rea for threats

The D.C. Court of Appeals has granted rehearing en banc in the case of Carrell v. United States, 80 A.3d 163 (D.C. 2013), in which a Division of the Court (over a strong dissent from Judge Schwelb) held that a threats conviction requires proof only that the defendant intended to utter the words that constitute the threat, but not that he intended the words to be threatening.  In our original blog post on Carrell, which you can find here, we noted that this case was "ripe for en banc review" given that there had been two lines of conflicting precedent in D.C.  It seems likely that the DCCA was holding the rehearing petition in order to see what the Supreme Court did in a case involving the federal threats statute, Elonis v. United States, 135 S.Ct. 2001 (2015), which we blogged about here, as the DCCA's order specifically asks the parties (and PDS as amicus) to brief the impact of Elonis.  The Supreme Court held in Elonis that the federal threats statute requires proof that the defendant intended to threaten (or perhaps was reckless), so that will be highly persuasive authority for the DCCA.  For now, the Division's opinion in Carrell is vacated, and it is essential to argue in any threats case that proof of an intent to threaten is required.

Neither Saying to a Friend that a Witness Must Be “Dealt With,” Nor Saying During An Exchange of Calls With An Associate, “Don’t Tell What Happened,” Is Obstruction of Justice

¯\_(ツ)_/¯ 

JUST SAYIN’ 

Darnell Hawkins & Marvin Verter, Jr. v. United States (decided July 9, 2015).

Players:  Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Associate Judge Beckwith.  Abram J. Pafford for Mr. Verter and Phillip C. Zane for Mr. Hawkins.  Trial judge:  Ronna Lee Beck.

Facts:  The government’s evidence showed that Mr. Hawkins, Mr. Verter and the decedent, Dawan Felder, were members of a drug-selling group called the “Get Money Soldiers.”  Government witnesses Sharde Wright and Jerita Campbell were members of a women’s auxiliary of sorts, the “Get Money Bitches,” who assisted in the drug sales. Mr. Verter and Mr. Hawkins asked Ms. Campbell to notify them if she saw Mr. Felder near her apartment, after suspicions arose that Mr. Felder had been stealing the groups’ proceeds.  Ms. Campbell did so.  Once notified, Mr. Verter and Mr. Hawkins came to her building, spoke to Mr. Felder, and then Mr. Hawkins shot and killer Mr. Felder.  Minutes later, Mr. Verter asked Ms. Campbell to give Mr. Hawkins a ride.  Ms. Campbell drove Mr. Hawkins to a gas station, where he met and confessed the murder to the head of the Get Money Soldiers.  Mr. Hawkins later exchanged several phone calls with Ms. Campbell, telling her at least once not to tell anybody what happened.

Ms. Wright, meanwhile, visited Mr. Verter, with whom she was romantically involved, in jail.  During the visit, Mr. Verter told Ms. Wright that Ms. Campbell had to be “dealt with” or gotten “out of the way.”  She said Mr. Verter made the statement because Ms. Campbell “was talking” and “[s]he was the main witness.”  The government posited that Mr. Verter obstructed justice by directing Ms. Wright to silence Ms. Campbell before she could testify to the grand jury.  When the trial judge ordered post-conviction briefing on whether “the bald statement, ‘We’ve got to get rid [sic] of [Campbell]’ is enough to make out an obstruction count,” the prosecution posited a different theory—that Mr. Verter’s statement was intended to intimidate Ms. Wright out of testifying against him.  The trial court upheld the obstruction conviction on that theory.

Issue #1:  Was Mr. Verter’s statement to Ms. Wright that Campbell should be “dealt with” or “gotten out of the way” sufficient to support Mr. Verter’s conviction for obstruction of justice?

Holding #1:  No.  Under either of the government’s theories, the evidence was insufficient to show that Mr. Verter “obstructed or impeded or endeavored to obstruct or impede the due administration of justice” in a D.C. court proceeding, as required by the charged obstruction provision, D.C. Code § 22.722(a)(6).  While an “endeavor” to prevent a witness from testifying need not be successful, “idle talk” is not sufficient without an active, specific intent to deter testimony.  There was no evidence Mr. Verter intended by his comment either to direct Ms. Wright to take action against Ms. Campbell or to frighten Ms. Wright herself out of testifying—to the contrary, the evidence suggested he believed Ms. Wright was already on his side and thus had no reason to pressure her. 

Issue #2:  Was there sufficient evidence to convict Mr. Hawkins of obstructing justice by “harass[ing]” Ms. Campbell via telephone “with the intent to hinder, delay, prevent, or dissuade” her from talking to the police, under D.C. Code § 22.722(a)(3)(B)?

Holding #2:  No.  It is not a crime merely to ask someone to lie so that one may evade law enforcement.  “Harassment” requires words and conduct that would reasonably tend to badger, disturb or pester an ordinary person (or threats, intimidation, or the use of physical force).  That Mr. Hawkins made calls to Ms. Campbell—many of which she returned, some of which went straight to voicemail, and on which there was no evidence of how many times he asked her to lie—does not establish obstruction by harassment.  Ms. Campbell’s asserted fear of being labeled a “snitch” and that other members of the Get Money Soldiers had keys to her residence could not be attributed to Mr. Hawkins.

Of Note: 

• The Court rejected Mr. Hawkins’ challenge to the jury instruction on yet another obstruction charge, for influencing his girlfriend’s grand jury testimony.  It held that instructing the jury it must find “an intent to undermine the integrity of the proceeding” adequately ensured that the jury would only convict upon finding that Hawkins acted “corruptly,” as the applicable subsection requires, D.C. Code § 22-722(a)(2)(A)-(B).

• The Court held that where a defendant obstructs justice by instructing a person to lie in an official proceeding, he violates both subsections (A) and (B) of D.C. Code § 22-722(a)(2), by (A) “influencing” the person’s truthful testimony, and (B) “causing or inducing the person to withhold truthful testimony.”  As such, Mr. Hawkins’ convictions under both subsections for the same act of instructing his girlfriend to lie merged.

• In rejecting Mr. Hawkins’ unpreserved challenge to the trial court’s failure to sever his trial from Mr. Verter’s, the Court noted that “[t]he fact that counsel for one defendant effectively acts as a ‘second prosecutor’ is generally insufficient to constitute prejudice requiring severance.”  FT.

Read full opinion here.

A Hearsay Statement Is Not an Excited Utterance Unless the Declarant Was Manifestly Overcome By Excitement or In Shock and Incapable Of Reflecting or Deliberating Before He Spoke

Antoine Mayhand v. United States (decided July 9, 2015).

Players:  Associate Judges Fisher and Easterly, Senior Judge Ruiz.  Opinion by Associate Judge Easterly.  Abram J. Pafford for Mr. Mayhand.  Trial judge: Stuart G. Nash.

Facts:  Mr. Mayhand was convicted of obstructing justice for threatening Mr. Ballard, a witness against Mr. Mayhand’s brother in another criminal case.  Ballard did not testify at Mayhand’s trial.  Instead, the prosecution relied on the recording of a 17-minute 911 call during which Mr. Ballard narrated as he walked about ten blocks “with Mr. Mayhand in close proximity,” provided descriptions of himself and Mr. Mayhand, and explained his involvement in the case against Mr. Mayhand’s brother.  Four times during the call, Mr. Ballard stated that Mr. Mayhand had threatened to stab him at some unspecified earlier time.  The trial court found that although there was “strain in his voice,” Mr. Ballard’s demeanor was “fairly level and coherent and balanced” throughout the call, except at one point when he could be heard “screaming at Mr. Mayhand.”  After the screaming, Mr. Ballard resumed “his conversational pattern with the operator” and “his reasonable tone of voice.”  The trial court admitted the entirety of the 911 call, finding that the four times Mr. Ballard accused Mr. Mayhand of threatening to stab him fell within the hearsay exception for excited utterances and the remainder within the hearsay exception for present sense impression. 

The government also presented responding officer Chih to testify that when he detained Mr. Mayhand on the scene, Mr. Mayhand yelled expletives and called Mr. Ballard a “snitch.”  When Officer Chih thereafter interviewed Mr. Ballard, he observed Mr. Ballard “trembling,” sweating, looking over his shoulder, breathing rapidly, and with a pulsing vein in his neck.

Although it found the above evidence sufficient to support a conviction for obstruction, the Court reversed Mr. Mayhand’s conviction because Mr. Ballard’s accusations on the 911 call—the only evidence that Mr. Mayhand threatened Mr. Ballard—were improperly admitted.

Issue:  Were Mr. Ballard’s recorded statements that Mr. Mayhand threatened to stab him excited utterances?

Holding:  No.  The “limited” excited utterance hearsay exception assumes “that statements made while a person is overcome by excitement or in shock are fundamentally trustworthy” because “the wash of excitement blocks the reflection and calculation that could produce false statements.”  Mr. Ballard’s statements about being threatened fail all three prongs of the test designed to ensure this rationale applies.  First, Mr. Ballard’s demeanor on the 911 call shows he was not in “a state of nervous excitement or physical shock,” which requires “a much higher level of emotional upset” than “mere vocal strain or indication of some anxiety.”  Second, the statements were not made “within a reasonably short period of time after the occurrence,” so as to ensure they were truly spontaneous.  There was no evidence of or finding about when the alleged threats occurred; and anyway, the fact that Mr. Ballard did not mention the alleged threats until after almost ninety seconds of answering the 911 operator’s questions showed that the accusation and the three others that followed were not spontaneous.  Finally, the totality of the circumstances did not “suggest spontaneity and sincerity of the remark.”  In addition to the factors above, the circumstances include the fact that Mr. Ballard “had the wherewithal to call the police, not merely to ask for help, but to document Mr. Mayhand’s criminal behavior and to identify him to police.”  This “self-awareness is the antithesis of the mental state required to support” a declaration as an excited utterance.

Of Note: 

• The “nervous excitement or physical shock” prong cannot be satisfied via an inference that an outwardly calm declarant is “masking” his inner emotional turmoil, since the very control required to do so shows him to be capable of deliberation.  Neither can that prong be met with evidence that the declarant, while calm at the time of the triggering event, “later became excited and distraught” when describing it.

• While there is some “temporal flexibility,” particularly for highly shocking or violent events, “the law generally requires an excited utterance to be more or less contemporaneous with” the event that induced it.  Although some D.C. cases have found statements made within a half hour of the triggering event to be close enough in time, each case must be assessed upon its particular facts.  “There is no standard thirty-minute grace period for the admission of excited utterances.”

• A statement made in response to questioning will not be “automatically disqualified” as an excited utterance, but if “the questions produce deliberative and thoughtful answers, then the necessary element of spontaneity and non-reflection is missing.”

• In a footnote, the Court questions, without deciding, whether the proffered utterance itself can “serve as the sole proof that an exciting event had occurred.”

• On Mr. Mayhand’s alternative sufficiency challenge, the Court holds that the relevant provision of the obstruction statute, D.C. Code § 22-722(a)(4), does not require proof of “a ‘nexus’” between the alleged threats and an intent to prevent Mr. Ballard from testifying against Mr. Mayhand’s brother.  Rather, it requires that the threats were made “on account of” incriminating information Mr. Ballard already gave the investigating authorities.  Officer Chih’s testimony that Mr. Mayhand called Mr. Ballard a “snitch,” combined with the 911 call, could support a reasonable inference that that Mr. Mayhand threatened Mr. Ballard for that reason.  FT.

Read full opinion here.

When the Jury Asks a Legal Question, the Judge Can't Say the Answer Is for the Jury to Decide

Michael Sanders v. United States, No. 14-CF-129 (decided July 2, 2015)

Players:  Associated Judges Thompson and McLeese, Senior Judge Pryor.  Opinion by Judge McLeese.  PDS for Mr. Sanders.  Trial Judge:  Patricia A. Broderick.

Facts:  There was evidence that Mr. Sanders unsuccessfully tried to get money and a phone from a fellow Metro passenger -- unsuccessfully -- and then hit the passenger as he was getting off the train.  The government charged Mr. Sanders with assault with intent to rob (AWIR).  The jury was instructed that one of the elements of AWIR as that Mr. Sanders had the intent to rob "at the time" of the assault.  During deliberations, the jury asked if an intent to rob immediately prior to the assault counts as "at the time" of the assault.  The defense said the answer should be no, the government said the answer should be yes.  Rather than resolve the issue, the trial court told the jury that the answer to the question was "for the jury to decide."

Issue:  Did the trial court adequately answer the jury's question about whether the assault and intent to rob must coincide by telling the jury it should decide?

Holding:  No.  The jury asked a legal question and, at least by the time of the appeal, everyone agreed that the answer to the question was that the intent to rob must exist at the same time as the assault. The court could not leave that legal question up the jury.  The error was not harmless beyond a reasonable doubt because the jury could have concluded that Mr. Sanders intended to rob the complainant at first when he asked him for money and a phone, but no longer had the intent when he was hit the complainant on his way off the train.  DG

Read full opinion here.