If you desire a jury trial, be sure the building itself is open to the public before trespassing.

Jacqueline Frey v. United States (decided May 5, 2016).

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by McLeese. Trial Judge: Ann O’Regan Keary. Jeffrey Light for Ms. Frey. 

Facts: At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee’s desk in a restricted area of the Library of Congress’s Adams Building, which though open to the public during the day was closed at that time. Also, in order to get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public. Ms. Frey testified she had entered the building at 3:30 p.m. the day before, when it was open, and fell asleep in the reading room. When she woke up, the building was closed and she began walking around until she made her way to the office where she was later arrested. After a bench trial, she was convicted of unlawful entry in violation of D.C. Code §22-3302. 

Issue:  Did the trial court err in deciding that Ms. Frey was not entitled to a jury trial? 

Holding: Yes. The unlawful entry statute is divided into two parts. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than six months, or both. Thus, since someone charged with an offense punishable by more than 180 days’ imprisonment has a statutory right to a jury trial, anyone charged under subsection (b) has a right to a jury trial. 

In this case, the information filed did not specify which subsection Ms. Frey was accused of violating. The government conceded that the Adams Building of the Library of Congress is a public building, but argued Ms. Frey was subject to subsection (a) because she was found inside the building at a time when it was not open to the public and in a room that is never open to the public.

The Court disagreed with the government’s argument. The Court reasoned that “[i]n light of the United States’s acknowledgment that the Adams Building is a public building rather than a private building, it seems to follow that Ms. Frey entered a public building, as well as various parts of a public building, and did not enter a private building or any part of a private building. Ms. Frey’s conduct therefore appears to have violated subsection (b), rather than subsection (a).” The focus is on where the person entered, in this case a public building, and not specifically where inside that building or when the person was found. 

In 2009, the unlawful entry statute had been divided into two parts, as the D.C. Council wished to draw a distinction between private and public buildings, and buildings where someone would have First Amendment protections. The government claimed this meant the building must be considered “private” because the Council only wanted to give more protections to people who entered private buildings due to their First Amendment rights but that no one has a First Amendment right to be in a building when it is closed. The Court disagreed: “By preserving a jury-trial right in all prosecutions for unlawfully entering public buildings, the Council apparently chose instead to draw a more easily administrable line [than the one the government was asking the court to draw]. In such circumstances, we must adhere to the broader language the Council chose, and we may not artificially limit the statute to the particular circumstances that gave rise to the Council’s concern.” 

Also, the Court noted that legislative history indicated the Council understood the jury-trial right would be “tied to the public character of the building as a whole, not to specific areas within a building.” The Court concluded that a defendant charged with unlawful entry has a right to a jury trial if the building itself is a public building, even if the defendant is found at a time when the building is closed or in an area within the building not open to the public. BM

Read full opinion here.

Don’t try to use booze as your defense to manslaughter or second-degree murder.

Jorida Davidson v. United States (decided May 5, 2016).

Players: Associate Judges Glickman, Fisher, and Easterly. Opinion by Fisher. Trial Judge: Lynn Leibovitz. Thomas Heslep for Ms. Davidson.

Facts: After consuming at least three glasses of wine and champagne, Ms. Davidson was driving home in her sport utility vehicle when she hit and killed Kiela Ryan, who was exiting her car after having parallel parked on Connecticut Avenue. Ms. Davidson did not stop but a witness wrote down her license plate number and contacted police. About an hour later, police found Ms. Davidson asleep inside her car, which was parked in her assigned parking spot in the garage underneath her condominium. She showed signs of intoxication when police subjected her to field sobriety tests, but she refused a breathalyzer test. A jury convicted her of voluntary manslaughter for causing Ms. Ryan’s death by acting “with a conscious disregard of an extreme risk of death or serious bodily injury to another.”

Issue 1:  Did the trial court err in denying defense’s requests for a jury instruction on voluntary intoxication?

Holding:  No. While voluntary intoxication may reduce first-degree murder to second-degree murder, Bishop v. United States, 107 F.2d 297, 301 (D.C. Cir. 1939), it is not a defense to either second-degree murder or voluntary manslaughter. “[A] defendant may be drunk enough to reduce his conviction from first- to second-degree murder, but he may not use his voluntary intoxication to diminish the offense further, to manslaughter, or seek acquittal on that basis.” Appellant argued that under Comber v. United States, 584 A.2d 26 (D.C. 1990) (en banc), which discussed the mental states required for murder and manslaughter, voluntary intoxication can negate the mental state for both murder and manslaughter. The Court disagreed, noting that the same argument was already rejected in Wheeler v. United States, 832 A.2d 1271, 1275-76 (D.C. 2003), and reiterated that there is a firm line where voluntary intoxication can reduce first- to second-degree murder, but nothing more.

Of Note:

• Ms. Davidson also raised two additional issues that the Court dealt with in a footnote. First, the Court determined there was sufficient evidence that Ms. Davidson “conscious[ly] disregard[ed] . . . an extreme risk of death or serious bodily injury to another person.” And second, Ms. Davidson was convicted after a retrial, and the Court determined the trial court “did not abuse its discretion by precluding appellant, in closing argument, from comparing the evidenced presented at this trial to that presented in the first trial,” citing Haley v. United States, 799 A.2d 1201, 1207 (D.C. 2002), for the proposition that a court abuses its discretion in limiting closing argument only if it “prevents defense counsel from making a point essential to the defense.” BM

Read full opinion here.

Chief Judge Washington expresses concern about government's decision to prosecute APO cases that arise from Mobile Crisis contacts with mentally ill individuals

Foster v. United States (decided April 21, 2016).

Players: Chief Judge Washington, Judge Fisher, and Senior Judge Steadman. Opinion by Chief Judge Washington. Concurring opinion also by Chief Judge Washington. Anna B. Scanlon for Mr. Foster. Trial judge: Yvonne Williams.  

Facts: Mr. Foster has schizophrenia, and a Mobile Crisis psychiatric team responded to his home after his mother called the Department of Health for help. At least two police officers accompanied the Mobile Crisis team to assist and “keep the peace.” When Mr. Foster refused to go with the crisis team for evaluation, the officers attempted to handcuff him—though he was not under arrest—“and a scuffle ensued,” during which the police sprayed him with pepper spray. Mr. Foster “shouldered” past one officer and left the house before dropping to his knees when the pepper spray took effect. He ultimately ended up face down on the ground as officers tried to handcuff him, lying on his hands, kicking his legs, and trying to breathe. He was convicted of APO for “pushing” or “shouldering” past the officer as he left the house and resisting arrest when police tried to handcuff him.   

Issue: Was the evidence sufficient to support the conviction for APO?           

Holding: Yes. Because the officers were in full uniform and explained their presence to Mr. Foster when they attempted to handcuff him, there was sufficient evidence that he knew they were police officers. And because he used his shoulder to move past one officer and actively resisted handcuffing by lying on his hands and kicking his legs, there was sufficient evidence of “the ‘active and oppositional’ conduct necessary for APO.”                 

Of Note: Chief Judge Washington wrote a separate concurrence to “express [his] concern” about the decision to prosecute APO charges in cases like this. He explained that he is “troubled that the presence of the police during these mental health visits can result in an individual being charged with a criminal offense because we have criminalized active oppositional resistance to the authority of the police.” If police officers are going to accompany the Mobile Crisis team, he “hope[d] that those individuals who have the discretion to decide whether to criminally prosecute individuals who fail to comply with lawful orders will think twice before inflicting what could be considered a greater harm, in the form of a criminal charge and conviction, on a very vulnerable population.”  MW

Read full opinion here.

Reminder: You can keep out prejudicial evidence of your client’s release status and prior conviction, so object when the government seeks to introduce stipulations on these issues

Richard Walker Williams v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Thompson, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  Debra Soltis for Mr. Williams.  Robert E. Morin, Trial Judge.

Facts: This case arises from a fatal stabbing.  Mr. Williams was appointed standby counsel at trial after his two previous attorneys’ motions to withdraw were granted.  At the suppression hearing, Mr. Williams alleged multiple instances of prosecutorial misconduct, including that the government had knowingly allowed a witness to give false testimony at a preliminary hearing and had altered police records.  Mr. Williams’ standby counsel requested a mental evaluation, and the staff psychologist at St. Elizabeth’s stated after a screening interview that she could not discern whether Mr. Williams was “unwilling” or “unable” to participate in court proceedings.  Mr. Williams was then committed to St. Elizabeths Hospital for a competency evaluation.  At a competency hearing, a staff psychologist at St. Elizabeths who had diagnosed Mr. Williams with malingering opined that Mr. Williams was competent to represent himself without counsel.  The psychologist’s opinion was based on her daily interactions with Mr. Williams over the two-month evaluation period, as well as her consultation and review of his records.  Mr. Williams’ standby counsel also informed the court that he believed Mr. Williams would be able to work with him on technical legal questions.  The court found Mr. Williams competent, crediting the psychologist’s opinion that Mr. Williams seemed able to turn his paranoia “off and on . . . like a light switch.”  Mr. Williams then represented himself at trial with his appointed attorney serving as standby counsel.  

At trial, the government introduced, without objection, stipulations as to Mr. Williams’ prior felony conviction (an element of the charge of carrying a dangerous weapon having been previously convicted of a felony (CDW)) and Mr. Williams’ release status at the time of the offense (an element of the charge of committing an offense during release (OCDR)).  Mr. Williams was convicted of second-degree murder while armed, CDW, and two counts of OCDR.  

Competency Issues: Whether the court erred in finding Mr. Williams competent for self-representation and whether the trial court abused its discretion by failing to re-examine sua sponte the issue of competency during trial and sentencing.

Holding:  No.  The DCCA found that the trial court’s determinations were supported by “ample evidence,” including the court’s interactions with Mr. Williams throughout pre-trial proceedings; evidence at the competency hearing; the court’s lengthy formal inquiry with Mr. Williams on the issue of whether Mr. Williams was competent to represent himself at trial; and Mr. Williams’ ability to file and argue pro se motions and form defense theories.  And according to the DCCA, the trial court did not err by failing to re-examine the issue sua sponte, given that during trial, Mr. Williams was able to cross-examine witnesses effectively, highlight inconsistencies and gaps in the government’s evidence, and present his own version of the incident.

Other Crimes Issue: Whether the trial court committed plain error by allowing the government to introduce evidentiary stipulations at trial regarding Mr. Williams’ felony conviction and release status.

Holding:  Yes.  The DCCA found that (1) OCDR does not create a separate offense, but is a sentencing enhancement, and (2) evidence of a prior felony conviction is unnecessary and prejudicial if the defendant is willing to stipulate to this fact.  Slip Op. at 22-24 (citing Eady v. United States, 44 A.3d 257 (D.C. 2012)).  Therefore, it was plain error for the trial court to admit evidence of the appellant’s release status and prior conviction, in light of Mr. Williams’ stipulations on these issues.  However, this error did not warrant reversal, given that two “credible” eyewitnesses and video evidence supported the government’s case and that the prejudicial effect of the stipulations was limited by the trial court’s limiting instructions.  NG

Read full opinion here.