There are innocent reasons to flee the police

Miles v. United States (decided March 29, 2018)

The Players: Associate Judges Glickman, Beckwith, and McLeese. Opinion by Judge Beckwith. Dissent by Judge McLeese. William T. Morrison for Mr. Miles.  Trial Judge: Stuart G. Nash.

Facts: An anonymous 911 caller claimed there was a black man in a blue army coat with a gun on a particular block. The police stopped appellant—a black man wearing an arguably blue camouflage jacket—a few blocks away. After seeing appellant, one officer drove his car up onto the sidewalk to prevent appellant from continuing in his direction of travel (which was inconsistent with what the tipster had provided). Appellant immediately tried to run away from the police cruiser, and was swiftly caught by the officer, who felt a hard object at appellant’s waist. Appellant was searched and found to be carrying a gun.

Issue: Did appellant’s flight when confronted by the police, coupled with the anonymous phone tip, give the police reasonable articulable suspicion (RAS) to stop appellant?

Answer: No. Even deferring to the trial court’s conclusion that the description given by the anonymous caller matched appellant, the only corroboration of the illegality alleged in the tip was appellant’s flight. Without more, there was no RAS.

First, the Court noted that the anonymous tip in this case was not enough on its own to justify the stop because, while it identified a specific person, there was nothing to corroborate its bald assertion of illegality. Thus, the police needed an on-the-scene reason to stop appellant, and here, the only indication of illegality was appellant’s flight. The Court held that his flight alone, under the circumstances of this case, was not enough to justify a stop.

The Court distinguished this case from Illinois v. Wardlow, 528 U.S. 119 (2000), in several ways. First, in Wardlow, there were additional factors other than flight that supported RAS (area known for drug trafficking, and Wardlow’s possession of an opaque bag were consistent with suspecting him of dealing drugs). Here, appellant’s flight was the ONLY indication of illegality. Second, in Wardlow, the flight was unprovoked (Wardlow ran as soon as he saw police officers in the area, before any had approached him). Here, appellant’s flight was in response to a sudden and aggressive attempt to stop him; the police pulled up onto the sidewalk to prevent his travel along the sidewalk. Flight in face of such aggressive police behavior is a reasonable response from an innocent person, particularly a black man.

Most significantly, the Court cites many sources documenting the disproportionate use of deadly force against black men, as well as the new prevalence of videos capturing the use of such force. Furthermore, the Court holds, “an investigatory stop and frisk is not a ‘petty indignity’—‘it is a serious intrusion upon the sanctity of the person’—and though we lack adequate empirical grounds for fathoming the extent to which innocent people might flee to avoid being subjected to one, it seems safe to say that the number is not insignificant.” Slip. Op. at 19. Without any additional indicia of illegality, the police did not have RAS to stop appellant. CP

Read the full opinion here.

Evidence of gun crimes in a DC neighborhood not relevant to whether a gun could be found in that neighborhood.

Grady v. United States (decided March 15, 2018).

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, Senior Judge Nebeker. Opinion by Chief Judge Blackburne-Rigsby. PDS for Mr. Grady. Trial Judge: Zoe Bush.

Facts: MPD Officer Armando De los Santos was responding to a reported domestic incident when he saw a man walking on the street he believed matched the description he had been provided, though the government admitted on appeal that the man did not match exactly. While remaining in his car, De los Santos made two or three attempts to speak to this man—later identified as Mr. Grady—and asked him if he had argued with anyone that night. Mr. Grady responded, “No, what do you want to talk to me about,” before stopping between two parked cars about ten to fifteen feet from the officer. Mr. Grady then backed up towards either a “large station wagon or small SUV.” The officer claimed that at that point he could see Mr. Grady through the car’s windows and saw him “put one of his hands inside a middle zippered pocket of his coat and ‘fumble’ with something inside for about three to five seconds” before he suddenly heard “the sound of a hard or heavy object hitting the ground where” Mr. Grady was standing. De los Santos then got out of his car and went to that spot where he saw a gun lying on the ground. A second officer placed Mr. Grady under arrest.

The morning before jury selection, the defense served a subpoena duces tecum on MPD for “All data pertaining to reports or arrests of individuals unlawfully possessing a firearm, including but not limited to arrests for carrying a pistol without a license (CPWL), possession of an unregistered firearm, unlawful possession of a firearm and/or ammunition and felon in possession of a firearm in the MPD Third District Police Service Area (PSA 304),” which is where the crime occurred, “from 10/27/00 to 10/27/2014.” The government moved to quash the subpoena arguing that it was untimely, overbroad, and sought irrelevant information. The trial court agreed, ruling that the evidence sought was inadmissible and the subpoena too broad for MPD to comply with. The following day, the defense served a second subpoena, that was not part of the trial or the appellate record. The government having not seen the contents of the subpoena still sought to quash it and the trial court decided that it was standing by its previous ruling on the subpoena.

During trial, the defense tried to elicit testimony from Officer De los Santos about the neighborhood gun-crime statistics, asking whether “during the last few years, there ha[d] . . . been a number of gun-related crimes” in the area. The government objected on relevance grounds and the defense contended the testimony was relevant as to “how a gun could possibly end up there” without it having come from Mr. Grady. The trial court ruled the evidence was not sufficiently relevant to show how a gun could have been at that location at that time. But during redirect examination, the court permitted the government to ask the officer “how frequently” in his twenty-two years of experience he had “seen guns just lying on the ground in the first place or on the street.” The officer said never. The defense then sought to recross-examine the officer about the prevalence of gun crimes in the neighborhood, but the trial court would not allow it. Later at trial, Officer Fosso, the arresting officer, testified on cross-examination that it was “commonplace” to arrive at a scene to find a gun without there being a person to arrest because the gun had just been found there but he did not personally remember a time when he had found a gun while walking on a street.

Issue 1: Did the trial court abuse its discretion when it quashed the defense’s two subpoenas duces tecum because they were overbroad?

Holding: No. The Court concluded it was not an abuse of discretion to quash the first subpoena and refuse to enforce the second for seeking the same information as the first. The Court found no error in the trial court’s reasoning that the subpoena was “confusing and likely too broad for the department to comply with,” since it potentially encompassed an extremely large number of civilian calls and unsubstantiated claims. Also, the Court stated that the defense when given the chance failed to explain how the subpoena could be narrowly tailored. The Court also said any gun-crime statistics evidence would have been cumulative to Officer Fosso’s testimony that he knew of instances where guns were found without there also being a person to arrest.

Issue 2: Was it a violation of the Confrontation Clause for the trial court to preclude the defense from cross-examining and recross-examining Officer De los Santos on his knowledge of gun-crime rates in the neighborhood where the defendant was arrested?

Holding: No. The Court agreed with the trial court that any testimony regarding gun-crime rates that the defense sought would have been irrelevant because “[n]othing in the record” suggested that someone other than the defendant had the motive or the opportunity to have dropped the gun. The Court cited De los Santos’s testimony that he saw the defendant move to conceal himself behind a vehicle, saw his hands go into his pockets, and heard a heavy object hit the ground, which is exactly where police found a gun moments later.

The Court also did not think such evidence was needed to minimize the incriminating effect of De los Santos’s testimony on redirect because introducing “isolated testimony on gun-crime statistics would [have] provide[d] the jury with an incomplete account of the actual likelihood that someone other than [the defendant] had left the gun at the spot where he was stopped and arrested.” The Court reasoned that statistics alone do not prove a systematic pattern. “If Officer De los Santos had been permitted to testify regarding the prevalence of gun-crime rates in PSA 304, the jury, without hearing statistics of other neighborhoods as a comparison could have idly speculated that another person left the gun, even if the rate was low, relative to other neighborhoods. . . . [The defense] tried to show that the rate of gun crimes is tied to the frequency with which people discards gun, but he failed to introduce any evidence to support his claim.”

Of note:

• To any extent the government tries to use evidence of frequency of gun crimes against a defendant, either at a suppression hearing, preliminary hearing, or trial, this opinion may be able to be used against them.

• If a defendant in the future wants to seek similar statistics as part of the defense, the key to negating this opinion’s impact will likely be limiting the request to some degree and having an argument to respond to the Court’s statement in the opinion that the defense did not present evidence connecting the rate of gun crimes to the frequency with which people discard guns. BM

Read the full opinion here.

The DCCA holds that whether trial counsel would have presented suppressed, favorable evidence is irrelevant under Brady, but finds no Brady violation on the facts presented.

Andrews v. United States (decided February 22, 2018)

Players: Chief Judge Blackburne-Rigsby, Senior Judges Washington and Steadman. Opinion by Senior Judge Washington. Michael S. Bailey, Donald P. Salzman, and Michael A. McIntosh for Mr. Andrews. Trial Judge: Ronna Lee Beck.

Facts: Appellant and his co-defendant Mack were convicted for murder of Deyon Rivers after a joint trial at which Morris Jones was the key eyewitness. Jones testified that shortly before the murder, appellant’s friend, David Braddy, told appellant and Mack that Rivers had nearly hit Braddy’s girlfriend with a bottle rocket. Jones testified that he later accompanied Braddy to smoke marijuana and drink on Braddy’s porch and that after Braddy went inside to answer the phone, Rivers drove by and stopped at nearby corner. According to Jones, appellant and Mack then emerged from an alley and shot into Rivers’ car.

At trial, Jones was the only witness who placed appellant at the crime scene. The government also presented evidence that police found a magazine from the likely murder weapon under the driver’s seat of a burgundy Cadillac, which also contained several items belonging to appellant—e.g., medical prescriptions, traffic citations, and a vodka bottle—as well as some that did not, including a hotel receipt for Octavian Brown. Jones testified that appellant confessed to the shooting the day after it happened.

The government did not call David Braddy to testify and disclosed only limited parts of his statements to police and the grand jury—specifically, his statement, contrary to Jones’ account, that Braddy had been home alone the night of the shooting. Neither appellant nor Mack called Braddy at trial, in part because he refused to speak with defense counsel. Mack called David Braddy’s father, James, who testified that he had not seen Jones on the porch after the shooting.

Before Mack’s retrial on the same charges, the government disclosed additional statements by David Braddy, which further contradicted that Jones had been at the house near the time of the shooting or at the fireworks incident. At the retrial, Braddy testified, and the court declared a mistrial after the jury was unable to return a verdict.

Appellant moved for a new trial, arguing that the government violated Brady by failing to disclose David Braddy’s prior statements and that conflicts of interest with respect to Octavian Brown and another potential alternate suspect, Kevin Bellinger, deprived him of his right to counsel. The trial court denied both claims. Regarding the Brady claim, it ruled that David Braddy’s statements were not material, in part because the court found incredible trial counsel’s testimony that she would have called him as a witness. The trial court ruled that counsel’s representation of Brown and Bellinger did not violate the Sixth Amendment because her relationship with Bellinger did not meaningfully begin until after appellant’s conviction and there was insufficient evidence connecting Brown or Bellinger to the murder.

Issue 1: Did the government violate Brady by failing to disclose David Braddy’s videotaped interview and grand jury testimony?

Holding 1:  No. A Brady violation requires suppression, favorability, and materiality. The trial court erred by taking into account whether counsel “would have actually used the suppressed Brady evidence,” which is “irrelevant once evidence is found to be favorable and suppressed.” A court may appropriately recognize “the benefits and potential disadvantages of suppressed evidence,” but should proceed “directly” to assessment of materiality “in light of the entire record, without speculat[ing] as to the defense counsel’s actual use of that evidence and without making a finding as to trial counsel’s credibility.”

Nevertheless, David Braddy’s suppressed statements were not material because they were in part cumulative of James Braddy’s testimony and largely went to impeach Jones, who was significantly impeached at trial, and further because the statements were in part harmful to appellant, in that David had said that appellant carried a gun and drove the Cadillac where the magazine from the murder weapon was found and that his father had seen appellant running from the scene of the shooting after it happened. Neither David Braddy’s testimony at Mack’s retrial nor the outcome of that retrial change this conclusion, in light of the differences in the respective cases against Mack and appellant.

Issue 2: Did trial counsel’s relationships with Brown and Bellinger create conflicts of interest that violated appellant’s right to counsel?

Holding 2: No. Notwithstanding any conflict, appellant failed to show that he was prejudiced by counsel’s failure to pursue Brown and Bellinger as alternate suspects because there was insufficient evidence to establish that they had the requisite “practical opportunity to commit the crime.” See Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc). Thus, counsel would not have been able to present Brown and Bellinger as alternate suspects.—WC

Read the full opinion here.

Multiple Shootings, Mutliple Defendants, Multiple Issues Leads to Affirmance in South Capitol Street Case

Bost et al. v. United States (decided February 15, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Kristina A. Crooks for Mr. Bost. E. Benton Keatley, Jeffrey T. Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald for Mr. Best. Thomas T. Heslep for Mr. Williams. PDS for Mr. S. Carter. R. Trent McCotter, Jessie K. Liu, and Michael W. Khoo for Mr. O. Carter. Trial Judge: Ronna Lee Beck.

Facts: The Carter brothers (Sanquan and Orlando), along with Best, shot and killed Jordan Howe on Alabama Avenue in retaliation for the suspected theft of Sanquan’s bracelet. Sanquan was arrested shortly after that shooting and played no role in subsequent events. The following day, a group of Howe’s associates shot and wounded Orlando. In retaliation for that, Bost, Orlando, Best, and Williams planned to attack Howe’s funeral. The group first planned to rob Tavon Nelson for his gun. Best and Bost carried out the robbery, which turned into a shootout that left Nelson dead. The group then did a drive-by shooting of a house on South Capitol Street where Howe’s friends had gathered after the funeral, leaving three dead and several wounded.

Issue 1: Should Sanquan’s case have been tried separately from the others on the ground that he was charged in connection with only the Alabama Avenue shooting? Same as to Bost, who was charged in only the South Capitol Street shooting?

Holding 1: No. Although the issue was not “an easy one,” the charges from the Alabama Avenue and South Capitol Street shootings were properly joined under Super. Ct. Crim. R. 8(b) as part of “the same series of acts or transactions.” Although there was an intervening event — the shooting of Orlando — between the Alabama Avenue and South Capitol Street shootings, there was still a causal connection between them, which is sufficient to make the latter a “sequel” to the first crime. The DCCA rejected the government’s alternative argument that the two shootings were part of a “common scheme or plan.”

Severance was not required to prevent prejudice from the presentation of evidence as to the shootings in which Sanquan and Bost were not involved. Because both were “active participants in conspiracies to commit first-degree murder,” their complicity in the overall venture is not “de minimis.” The evidence was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” And “the trial court made efforts to ensure that the jury was not confused about the charges,” by reminding the jury that Sanquan and Bost were not charged with certain offenses, instructing the jury that certain statements could not be used against one or the other, and giving a “strongly worded curative instruction,” in response to the prosecutor’s rebuttal argument, that Sanquan had no responsibility for the South Capitol Street shooting.

Issue 2: Was there a risk of a coerced verdict because a juror reported “pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree”?

Holding 2: No. The potential of coercion from the note was low, because the juror did not report pressure from the entire group, or that they disagreed on all counts. The identity of the juror was not revealed in open court, “making it less likely that the juror felt undue pressure from the rest of the jury.” The exact division of the jury was (theoretically) unknown. No verdict had been announced, and the court did not give an anti-deadlock instruction. The note did not report any improper behavior during deliberations, only that they were “spirited.” Because the coercive potential was low, the trial court appropriately gave a “neutral, even ‘bland,’ instruction” in response, asking them to resume deliberations and remain civil. An anti-deadlock instruction would have been premature “as there was no indication that the jury was deadlocked at the time of the note.”

Issue 3: Was Best’s trial counsel ineffective for failing to move to suppress Best’s videotaped interrogation on Miranda grounds?

Holding 3: No. Best’s attorney reasonably believed that the factual allegations supporting the motion suppress “were not true.” In addition, the motion to suppress would have been futile because the incriminating portions of the video came in response to questioning by Best’s mother, not police.

Issue 4: Was a mistrial required due to the prosecutor’s conduct during opening — referencing the “Equal Justice Under Law” inscription on the Supreme Court building; asserting that the government’s role was to “fairly enforc[e] the criminal laws”; and decrying “vigilante justice” — and closing — characterizing certain government witnesses as “heroes,” one of whom was doing “God’s work”; asserting that the jury should be “proud” of the police investigation; presenting a blown-up photo of a murder victim that elicited an emotional response in the courtroom; and pleading that the victims’ families were asking for “justice” rather than vengeance?

Holding 4: No. The prosecutor’s comments during opening statement “did not appear to cross the line of permissible opening statements, as the comments were not argumentative.” Even if they were improper, they were “not so grave as to warrant a mistrial.” The trial court’s curative instruction after the openings to base their verdicts on evidence rather than emotion was an appropriate response.

The prosecutor’s statements in closing that the jury should be proud of the police and characterizing certain witnesses as heroes were “not improper when considered in context.” These statements did not “urge the jurors to place themselves ‘in the position of the victim,’ nor did the statements rise to the level of an appeal ‘to the jury’s emotions.’” The prosecutor’s comment about the families asking for justice rather than vengeance “may have appealed to the sympathy of the jurors,” but did not rise to the level of improperly “asking the jurors to ‘send a message to the defendant[s]’ or to the community with their verdicts.” The use of the photograph was not improper because it was admitted into evidence.

Issue 5: Should the trial court have instructed the jury on withdrawal from a conspiracy because Williams left the vehicle before the South Capitol Street shooting, saying, “Y’all about to go commence. Y’all can let me out right here”?

Holding 5: No. To withdraw from a conspiracy, one must act to “disavow” or “defeat the purpose” of the conspiracy. Simply leaving the scene is insufficient to establish withdrawal.

Of Note:

• The DCCA rejected an argument based on a malfunctioning courtroom “husher,” reasoning that there was no evidence any of the jurors actually overheard any of the bench conferences.

• The DCCA also rejected an argument for a change of venue due to adverse pretrial publicity because a change of venue is generally unavailable in Superior Court, and the jurors empanelled had not been influenced by media reports on the case. 

• The DCCA held that Best’s non-verbal “confession” to his mother, and a verbal confession to a friend, were properly admitted as statements against penal interest. 

• The DCCA rejected a number of other issues summarily. Although the court “question[ed] whether the government needed to present testimony from four mothers of the victims,” it ruled that this did not show that the jury decided the case based on emotion. The court held the trial judge did not improperly curtail cross-examination of a cooperating witness. And the court held that the trial court did not err in precluding evidence that the cooperator fired a gun in 2007. DG

Read the full opinion here.

Court rules DNA testing problems at DFS not enough for new trial

Barber v. United States (decided March 1, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Pryor. Opinion by Chief Judge Blackburne-Rigsby. Matthew B. Kaplan for Mr. Barber. Trial Judge: Russell F. Canan.

Facts: Appellant Tavon Barber was convicted of theft, armed burglary, three counts of third-degree sexual abuse, and eight counts of possession of a firearm during a crime of violence (PFCV) in connection with two home invasions on June 4 and 5, 2013. The evidence of sexual abuse consisted of testimony to the effect that Mr. Barber slapped the bottom of a female victim during the second home invasion and then fondled and ran his gun barrel along her body. The government relied in part on DNA evidence in its case against Mr. Barber, using testimony both of a DFS employee and of independent expert Dr. Bruce Budowle. Dr. Budowle generally agreed with DFS’s conclusions as to whether or not samples collected from the scene “matched” the suspects and victims but voiced concerns about the statistical calculations underlying these conclusions. Following trial, both DFS and the U.S. Attorney’s Office engaged in an internal audit led by Dr. Budowle himself, and the panel’s report identified multiple systemic flaws in DFS’s protocol for interpreting forensic DNA tests and calculating “match” probability. Based on these findings, Mr. Barber filed a Rule 33 motion for a new trial on the theory that the report “unequivocally demonstrates the unreliability of DFS testing and invalidates the entire testing process” and thus significantly undermines the DNA evidence used to convict him. Judge Canan denied this motion, noting that the challenged DNA evidence was “not the ‘key evidence’” in the prosecution’s case and that even Dr. Budowle had no concerns about the particular evidence used against Mr. Barber. 

Issue 1: Did the trial judge err in denying appellant’s motion for a new trial based on newly discovered evidence?

Holding 1: No. Rule 33 imposes four requirements for motions for a new trial based on newly discovered evidence, two of which were contested here: whether the new evidence is “material…and not merely cumulative or impeaching” and whether the evidence is “of a nature that it would probably produce an acquittal.” The Court found that the Budowle Report failed both of these prongs. Regarding materiality, the Court of Appeals noted that the systemic issues identified after trial were essentially remedied in Mr. Barber’s case by Dr. Budowle providing his own, undisputed conclusions to the jury. The Court also found that any cross-examination of the DFS expert concerning the lab’s systemic issues would have served merely to impeach her, which cannot be the basis for a new trial under Rule 33.

With respect to the evidence’s probability of producing an acquittal, the Court of Appeals agreed with the trial judge, finding that the DNA was not crucial to the prosecution’s case. The government introduced various other pieces of evidence incriminating Mr. Barber, including fingerprint evidence in a stolen car, a hand-print from the scene, the identifying testimony of one of the victims, and a third-party witness’s relation of Mr. Barber’s detailed confession to the crimes. Accordingly, because the new evidence was merely impeaching and unlikely to have produced an acquittal, the Court of Appeals held that the trial court did not abuse its discretion in denying Mr. Barber’s motion.

Issue 2: Should the appellant’s three sexual abuse and eight PFCV charges have been merged into one charge of sexual abuse and one charge of PCFV?

Holding 2: No. Criminal acts do not merge when “there is an appreciable length of time between the acts…or when a subsequent criminal act was not the result of the original impulse but a fresh one.” Sanchez-Rengifo v. United States. For sexual assault cases, the Court of Appeals inquires whether “the defendant sought a ‘new and different kind of sexual gratifications,’ with each act committed against the victim, such that [the Court is] convinced that the defendant was acting ‘in response to a fresh impulse.’” The Court held that the three acts of sexual assault charged here—slapping the victim’s bottom, flipping her over to touch her breast, and touching the victim’s thighs and buttocks with a firearm—pass this test. In finding that the first two do not merge, the Court placed emphasis on appellant’s forcing the victim to change position, distinguishing the facts here from Cullen v. United States, in which acts of sexual assault had merged. In addition, the Court held that appellant’s use of the firearm implicates the third-degree sexual abuse statute’s specific mention of threats of bodily injury; this mention “denotes the legislature’s attempt to distinguish different counts … based on differences in the nature and character of the acts.”

Regarding appellant’s eight PFCV charges, such charges merge only when their predicate crimes merge, and here, all of the eight predicate offenses  were found to pass the “fork-in-the-road” test—“appellant was at a fork in the road an had an opportunity to reconsider his actions.”—Jackson Myers.

Read the full opinion here.

ICYMI: the OAG may not prosecute voyeurism.

In re Perrow (decided Nov. 9, 2017)

Players: Chief Judge Blackburne-Rigsby. Associate Judges Glickman and Thompson. Opinion by Chief Judge Blackburne-Rigsby. Leonard L. Long for Mr. Perrow. Trial Judge Wendell P. Gardner, Jr.

Facts: In 2006, the D.C. Council enacted the Omnibus Public Safety Amendment Act, outlawing voyeurism and delegating exclusive authority to prosecute the offense to the Office of the Attorney General (“OAG”). Thereafter, the U.S. Attorney’s Office (“USAO”) charged Mr. Perrow with voyeurism. Mr. Perrow moved to dismiss the charge, arguing that the OAG had sole authority to prosecute under the Council’s 2006 legislation. The USAO opposed, arguing that under D.C. Code § 23-101, as enacted by Congress in 1970, the Council could not allocate power to prosecute voyeurism to the OAG. Judge Gardner certified to the Court of Appeals the question of whether the Council’s 2006 delegation of prosecutorial authority was valid.

Issue: Was the D.C. Council’s attempt to delegate authority to prosecute voyeurism to the OAG valid?

Holding: No. While the Home Rule Act allows the Council to enact new criminal statutes, the Council may not designate the OAG prosecutor of those new offenses, unless they fall into one of two categories that Congress authorized the OAG to prosecute in 1970: D.C. Code § 23-101(a) violations of police or municipal ordinances or regulations or penal statutes in the nature of such an ordinance and regulation with a maximum punishment of a fine or one year or less of imprisonment; and (b) violations of the statutes prohibiting “disorderly conduct” and “lewd, indecent, or obscene acts.” The Court reaches this conclusion because D.C. Code § 23-101(c) reserves authority to prosecute all other crimes to the USAO, “except as otherwise provided by law,” and, under the Home Rule Act, the Council may not enact laws that affect the “duties or powers” of the USAO. Thus, if a crime falls without the scope of § 23-101(a) and (b), the Council may not delegate any authority to prosecute it to the OAG, as doing so would affect the duty and power of the USAO to prosecute the same offense.

Mr. Perrow was charged with recording a woman’s private area without her knowledge or permission, in violation of D.C. Code § 22-3431(d). The Council may authorize the OAG to prosecute under this statute, only if it (a) constitutes a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation or (b) proscribes “essentially” the same behavior as either the “disorderly conduct” statute or the “lewd, indecent, or obscene acts” statute. Voyeurism does not meet either test.

Voyeurism is not a “lewd, indecent, or obscene act[]” because it does not involve exposing one’s own genitalia or making obscene or indecent sexual proposals to a minor. Although voyeurism is similar to the “Peeping Tom” variety of “disorderly conduct,” a “Peeping Tom” offense requires only that a person look stealthily into a dwelling, occupied or not, under circumstances in which the occupant would have a reasonable expectation of privacy. Voyeurism, by contrast, requires that the defendant intend to view, record, or capture the image of a person’s body, regardless of whether that body occupies a dwelling. Other “disorderly conduct” offenses are not even remotely similar. The OAG and Mr. Perrow do not even contend that the voyeurism law is a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation. WC

Read the full opinion here.

Convictions reversed based on erroneous introduction of physical evidence without proper foundation

Smith v. United States (decided December 28, 2017)

Players: Associate Judges Thompson and Beckwith. Senior Judge Farrell. Opinion for the Court by Judge Thompson. Opinion concurring in part and dissenting in part by Judge Farrell. Ian A. Herbert, Nathaniel Edmonds, Jamie Gardner, Matthew Crossman, and Danielle R.A. Susanj for Mr. Smith. Trial Judge Rhonda Reid-Winston.

Facts: A man “with dreadlocks, or cornrows” knocked on complainant’s apartment door one evening and asked for a cigarette. Complainant recognized the man as someone he had given cigarettes before but told the man that he did not have any and closed the door. About a half-hour later, the same man knocked on complainant’s door and asked the same question. When complainant again said no, someone pushed the door open, and the cornrowed-or-dreadlocked man entered the apartment with two others who, unlike their companion, were wearing ski masks.

A masked man subdued complainant and bound his hands, while the mask-less man started removing complainant’s televisions. A masked man told complainant not to say anything to the police, adding “[w]e know where you live.” Later, when there was a knock at the door, the mask-less man opened it, closed it very quickly, announced that the police were at the door, and ran out of the back bedroom. The masked men also ran.

Officer Simic testified that when he knocked on complainant’s door (in response to a call for an assault in progress), a man in a dark outfit with long dreadlocks wearing black gloves opened the door and slammed it seconds later. At trial, Simic identified appellant as the man who answered the door and testified that he saw appellant jump out of a window after Officer Ellis yelled “Police[.] [D]on’t jump.” Ellis, who chased the jumper on foot, gave inconsistent testimony about his identity.

Officer Hernandez followed in his vehicle to a wooded area where he eventually found appellant lying on the ground and arrested him. Appellant told Hernandez he had “the man’s” wallet in his back pocket. In addition, police found several items that belonged to complainant on appellant’s person. Appellant told police that someone passed the property to him when either “we” or “they” were jumping out of the window.

Hernandez did not find the gloves that Simic included in his description of the door-answerer on or near appellant at the time of his arrest. Nevertheless, the government introduced a pair of gloves at trial that Simic testified he received from another officer who did not testify. Simic testified that these gloves were the ones worn by the door-answerer.

Complainant testified that he had “never seen [appellant] before,” and that the man who entered his apartment without a mask was much taller. Appellant testified that as he was walking by complainant’s apartment window on the date in question, a man asked him to help with a TV and then disappeared inside. Appellant then saw a man in a black coat leap from the window and run away. Appellant testified that he picked up a wallet, phone, and MP3 player from the grass where the man landed and ran after the police started chasing him. Appellant denied wearing gloves that evening.

Although the government argued that appellant was one of the burglars inside complainant’s apartment, the trial court instructed the jury on aiding and abetting, stating that it was not necessary for appellant to have been present while the crime was committed. Appellant requested a three paragraph theory of the case instruction which stated not only that he had not been present during the burglary but also that the property he picked up had been dropped by an unknown person. The trial court refused to give the final paragraph of the instruction regarding how appellant came to possess the property. The jury found appellant guilty of first-degree burglary, kidnapping, robbery, and threatening to kidnap or injure a person.

Issue 1: Was there sufficient evidence to support appellant’s convictions?

Holding: Yes. The jury was free to credit Officer Simic notwithstanding the discrepancies in his description of appellant. The jury could also credit that appellant stated “we” jumped out of a window, when he was being arrested. The jury was entitled to discredit appellant’s innocent explanation for how he came to possess complainant’s property.

Issue 2: Did the trial court reversibly err in admitting the gloves without proper evidence of where they were found?

Holding: Yes. Although a missing link in the chain of custody generally goes to weight rather than admissibility, the DCCA has applied this principle only to items found in the defendant’s possession. Here, appellant was not wearing the gloves when he was arrested; nor were they found where he was arrested. Even assuming, as Simic testified, that the man who answered the door was wearing the gloves, they did not tend to prove that appellant was the door-answerer absent proof that police recovered them from appellant. The gloves were thus irrelevant.

Similarly, the gloves were prejudicial because they suggested—without actually proving—that appellant was the man who answered the door, which was the central dispute of fact at trial. The government emphasized the gloves in closing as key corroboration for Simic’s identification of appellant. Without improper corroboration from the gloves, it is reasonably likely that the jury would not have discounted appellant’s misidentification defense. The government's case was not overwhelming. The officers other than Simic were inconsistent or equivocal in their identifications of appellant as the jumper. The complainant testified that appellant was not the person who entered his home.

Issue 3: Did the trial court err by removing the third paragraph of appellant’s proposed theory-of-the-case instruction regarding how he came to possess complainant’s property?

Holding: Yes. Given that the jury was instructed on aiding and abetting, appellant was entitled to have the jury instructed on his contention that he did not know—and thus could not have been aiding—the burglar who jumped out of the window and dropped complainant’s property. This contention was a necessary component of appellant’s defense to aiding and abetting. Without it, appellant “may” have been deprived of his constitutional right to present a defense to aiding and abetting.

Of Note:

• Judge Farrell concurs in the Court’s assignments of error but would not reverse.
• While noting that appellant “arguably” failed to preserve his objection to admitting the gloves, the Court declined to apply the plain error standard because the government did not urge its application. 
• In light of its ruling that the gloves were irrelevant and prejudicial, the Court declined to resolve appellant’s argument that admitting the gloves without proper foundation amounted to implied hearsay in violation of the Confrontation Clause. The Court noted, however, that it was “fair to say” that the gloves either were irrelevant and prejudicial, as it concluded, or relied on implied hearsay in violation of the Confrontation Clause. WC

Read the full opinion here.