Abuse of Discretion To Exclude Defense Expert from the Courtroom During Cross-Examination of Government Expert

Cynthia Sanchez v. District of Columbia, No. 13-CT-128 (decided November 6, 2014)

Players:  Beckwith, McLeese, Newman.  Opinion by Senior Judge Newman.  Grey Gardner for Ms. Sanchez.  Trial judge:  Heidi M. Pasichow.

Facts:  In a DUI bench trial, the government’s principal fact and expert witness was the U.S. Capitol Police officer who stopped Ms. Sanchez’s car, administered sobriety tests, and arrested her.  During the defense’s cross-examination of the officer, the trial judge summoned the parties to the bench and sua sponte invoked the rule on witnesses to exclude the defense’s expert witness from the courtroom, stating that it was not “appropriate” for him to hear the cross-examination of the officer.  Defense counsel argued that his expert needed to be present during cross-examination to see the officer demonstrate the sobriety tests he conducted and opine as to whether he administered the tests correctly, as well as to help defense counsel formulate questions for cross-examination.  The trial judge refused to reconsider her ruling.

           

Issue:  Was it reversible error to exclude a defense expert witness from the courtroom during the cross-examination of the government’s principal fact and expert witness in a DUI bench trial?

Holding:  Yes.  Under the Federal Rules of Evidence and this Court’s prior cases, including Johnson v. District of Columbia, 655 A.2d 316 (D.C. 1995) (per curiam), and Garmon v. United States, 684 A.2d 327 (D.C. 1996), “the presence in the courtroom of expert witnesses is the norm, subject to exceptions,” and in this case there was “no valid basis” for the expert’s exclusion.

Of Note:

• The defendant’s right to present expert witnesses “includes the need to afford the expert appropriate means of gathering the ‘facts and data’ upon which to base an opinion,” as well as “a right to have his attorney consult with the expert during cross-examination of the government’s expert so as to enable defense counsel to conduct meaningful cross-examination.”  Slip op. at 9.
• The erroneous exclusion of the defense expert was prejudicial even though the expert was able to rely on the officer’s direct examination and defense counsel’s retelling of the “facts” elicited from the officer on cross-examination to opine that the officer had not administered some of the sobriety tests correctly, because “the defendant was deprived of further opportunity to evaluate [the officer’s] methodology directly and to point out any additional flaws as [the defense expert] testified,” and also “deprived of the use of her expert to meaningfully assist counsel in the conduct of the cross-examination of [the officer].”  Slip op. at 11.  MW.

Read full opinion here.

Pre-Arrest Search of Driver After a Traffic Stop Valid as a Search Incident to Arrest Where Police Smell “Fresh” Marijuana in the Car and the Driver Is the Sole Occupant

Thomas Butler v. United States, No. 11-CM-985 (decided November 6, 2014)

Players:  Blackburne-Rigsby, Beckwith, Belson.  Opinion by Judge Blackburne-Rigsby.  Dissent by Judge Beckwith.  Thomas T. Heslep for Mr. Butler.  Trial judge:  Herbert B. Dixon.

Facts:  Police stopped Thomas Butler’s car because it had broken brake lights, and when Butler lowered his window to speak with the officer, the officer smelled “the strong odor of ‘fresh’ marijuana coming from inside the vehicle.”  The officer asked Thomas to get out of the car and then searched him.  During the search, the officer pulled up Thomas’s pant leg and found a bag of pills and a bag of marijuana “wedged between the sock and shoe.”  The officer then arrested Thomas and searched the vehicle for more drugs, but found nothing.    

           

Issue:  Was the pre-arrest search of a driver following a traffic stop a lawful search incident to arrest where police smelled the odor of “fresh” marijuana emanating from the vehicle in which the driver was the sole occupant?                                      

Holding:  Yes.  Police had probable cause to arrest Mr. Butler because he was the sole occupant of the vehicle and because the odor was of “fresh” marijuana, and under Millet v. United States, 977 A.2d 932, 935 (D.C. 2009), “[a] search incident to arrest may precede the actual arrest if probable cause exists, independent of the search, to justify the arrest, and if the arrest follows ‘quickly on the heels’ of the search.”

Of Note:

• The court rejected the government’s argument that the odor of marijuana was itself sufficient to provide probable cause to arrest and search.       
• “[T]he calculus of probable cause in future cases such as this may change” as a result of the Marijuana Possession Decriminalization Amendment Act of 2014.  Slip op. at 2.
• The majority maintains that “our case law does not approve—and indeed actively guards against—‘fishing expeditions’ for contraband.”  Id. at 7 n.6. 
• But it also asserts that its opinion “is in accord with” the “holding and reasoning” of United States v. Nash, --- A.3d ---, Nos. 13-CO-1299  & 13-C)-1456 (Sept. 25, 2014), which held “that a search incident to arrest is lawful even if, at the time of the search, the police had not yet arrested the suspect and did not subjectively intend to do so.”  Slip op. at 7 n.6. 

 The Dissent:

• In dissent, Judge Beckwith states that she “would reverse Mr. Butler’s convictions on the ground that the search of his person was not incident to any arrest.  That is, the record is devoid of signs that the officer was arresting Mr. Butler for possession of marijuana when he conducted the search and instead indicates that he was conducting an investigative search not incident to any arrest.”  Slip op. at 15 (Beckwith, J., dissenting).
• The dissent sharply disagrees with both Nash and the majority’s acceptance of it on the ground that it “flatly defies the U.S. Supreme Court’s Fourth Amendment jurisprudence, including precedent, such as Knowles v. Iowa, 525 U.S. 113 (1998), in which the fact that an officer did not intend to arrest a suspect was what made a purported search incident to arrest illegal.”  Slip op. at 14. 
• Taking issue with the Nash Court’s (and the majority’s) reliance on Millet, the dissent contends that “Millet cannot have intended a holding that so offhandedly brings such a fundamental change to the law governing the search-incident-to-arrest exception to the warrant requirement.”  Id. at 23-24.  MW.

Read full opinion here.

Got a FIP? Watch out for suggestions by the prosecutor that the conviction shows your client has a criminal character

Renaldo K. Lucas v. United States, No. 12-CF-240 (decided October 30, 2014).

Players:  Associate Judge Thompson, Senior Judges Ruiz and Steadman.  Opinion by Senior Judge Ruiz.  PDS for Mr. Lucas.  Trial Judge Robert I. Richter.

Facts:  During closing arguments in this gun possession case, the prosecutor argued that Mr. Lucas “had [the gun] on his person just like he had that prior conviction on his record.”  The defense objected but was overruled.  During deliberations, the defense revisited the issue, asking for a mistrial or a curative instruction.  Both requests were denied.  Mr. Lucas was convicted of possession of a firearm by a felon, and related charges.

Issue: Whether the prosecutor’s comment during closing arguments that the defendant “had [the gun] on his person just like he had that prior conviction on his record” improperly invited the jury to engage in criminal propensity reasoning, and if so, whether the court’s failure to sustain an objection to the comment was prejudicial. 

Holding: The defense’s objection “was well founded and should have been sustained.” Slip op. at 16 (quoting Williams v. United States, 549 A.2d 328, 334 (D.C. 1988)).  Although the government was entitled to remind the jury of the parties’ stipulation regarding Mr. Lucas’s prior conviction, the prosecutor “was required to do so in a manner that would not be reasonably understood by the jury as an invitation to convict based on a perception of appellant’s propensity to commit crime.”  Slip op. at 15-16.  However, the error was not prejudicial.

Of Note:

Keep this case in mind for trials where your client’s prior convictions are admissible.  Prosecutors may not say anything to the jury that would imply “a propensity relationship between the two facts—appellant’s prior conviction and [the current alleged conduct.]”  Slip op. at 15. NG

Read full opinion here.

Handing off a loaded gun and driving the get-away car aren't enough to establish aiding and abetting liability for murder

Curtis L. McKnight and Robert H. Pumphrey v. United States, Nos. 12-CF-825 and 12-CF-1007 (decided October 30, 2014).

Players:  Associate Judges Glickman and Easterly, and Senior Judge Pryor.  Opinion by Judge Easterly.  Dissent by Senior Judge Pryor.  Craig N. Moore for Curtis L. McKnight.  Julian S. Greenspun for Robert H. Pumphrey.  Trial Judge William M. Jackson. 

Facts:  The government’s case against Mr. McKnight and Mr. Pumphrey rested on the testimony of Shanicka Adams.  Ms. Adams testified that from her bedroom window, she had observed Mr. McKnight and Mr. Pumphrey standing by Mr. Pumphrey’s car, while Mr. McKnight and the decedent argued.  The decedent then got out of his car and began searching through his trunk.  Mr. Pumphrey said, “He’s looking for something, he’s looking for something,” as the decedent rummaged through the trunk of his car.  Mr. Pumphrey then retrieved a gun from the passenger side of his car and handed it to Mr. McKnight. Mr. McKnight shot and killed the decedent.  Mr. Pumphrey drove Mr. McKnight away in Mr. Pumphrey’s car.  Mr. Pumphrey was convicted of second-degree murder while armed, under an aiding and abetting theory. 

Issue: Whether there was sufficient evidence for the jury to conclude that Mr. Pumphrey intended to commit second-degree murder while armed. 

Holding: No. 

Of Note:

This case can be helpful in establishing the limits of aiding and abetting liability.  At 2:00 a.m., Mr. Pumphrey observed his co-defendant arguing with the decedent.  As the decedent searched through his trunk, Mr. Pumphrey warned his co-defendant that the decedent was looking for something.  Mr. Pumphrey then retrieved a loaded gun from his car and gave it to his co-defendant, who shot the decedent.  Mr. Pumphrey drove his co-defendant from the scene.  Nonetheless, there was no evidence “from which one could determine that Mr. Pumphrey intended Mr. McKnight to shoot [the decedent] or should reasonably appreciated that there was an extreme risk that Mr. McKnight would do so.”  Slip op. at 11.  NG

Read full opinion here.

Twenty years later, a detective's lie is uncovered and leads to a new trial

Gary Gathers & Keith Mitchell v.United States, Nos. 09-CO-422, 11-CO-1676, 11-CO-1677, 12-CO-1411, 12-CO-1412 (decided October 23, 2014).

Players: Associate Judges Blackburne-Rigsby and Beckwith; Senior Judge Steadman. Opinion by Judge Steadman. Seth Rosenthal for Mr. Gathers. Amit Mehta for Mr. Mitchell. David Goodhand for the United States. Post-Trial Motions Judge Russell Canan.

Facts: Wayne Ballard was killed while inside his car during a driveby shooting in 1993. The government’s case against Mr. Gathers and Mr. Mitchell rested on two foundations. First, the passenger in Mr. Ballard’s car identified appellants as the culprits. But his identification was “attacked in significant respects” at trial. Second, the government’s theory of motive was that appellants killed Mr. Ballard to prevent him from testifying against Mr. Gathers’s brother, Gregory, in Gregory’s trial for a different murder. To show that appellants knew Mr. Ballard would testify against Gregory, the government presented Detective Crawford’s testimony that, during the preliminary hearing in Gregory’s murder case, Detective Crawford had named Mr. Ballard in open court as the government’s eyewitness to the murder. But Detective Crawford’s trial testimony was false, as Detective Crawford had not identified Mr. Ballard by name during Gregory’s preliminary hearing. During a pretrial motions hearing in appellants’ case, the prosecutor represented that Detective Crawford did not identify Mr. Ballard by name during Gregory’s preliminary hearing. But after Detective Crawford falsely testified inconsistently with this representation, the prosecutor did nothing to correct his error, and instead relied on it to convict appellants.

Issues:

• Was the government’s conceded violation of Napue v. Illinois, 360 U.S. 264 (1959), harmless, as the trial court held?

• Was this Napue claim procedurally barred under Shepard v. United States, 533 A.2d 1278 (1987), because appellants either knew or should have known of the factual basis for the claim during the pendency of their direct appeal and thus could not show “cause” and “prejudice” to excuse their failure to raise the claim at that time?

Holding:

• No. The trial court erred by placing the burden of showing prejudice on appellants. Once a defendant establishes a Napue violation, the burden falls on the government to prove “beyond a reasonable doubt” that the error did not affect the verdict. And the government could not make that showing here.

•  No. The Court assumed, without deciding, that belatedly filed Napue claims are subject to the cause and prejudice requirements of Shepard, but held that appellants satisfied these requirements here.
• Appellants showed “cause” for two reasons. 
• Appellants were not “on notice” that Detective Crawford’s trial testimony was false. Even though the prosecutor represented before trial that Detective Crawford had not identified Mr. Ballard by name at the preliminary hearing in Gregory Gathers’s case, defense counsel did not act unreasonably by “accept[ing] that the first-hand testimony from Detective Crawford on the stand . . . was accurate rather than that of the prosecutor made orally in a somewhat confused earlier discussion[.]”  Slip op. at 15. 
• “[A]ny negligence by defense counsel was utterly outweighed by that of the government.”  Id. at 16.

• Appellants showed “prejudice” because, at least for Napue claims, the test is “equivalent to that on the merits,” i.e. that the error must be harmless beyond a reasonable doubt.  Id. at 18 n.15.

Practice tip: Argue that Shepard’s requirements do not apply — or, at the very least, do not apply in their usual way — outside the ineffective assistance of counsel context.  JM

Read full opinion here.

Brady applies to pre-trial suppression motions

Lamont A. Biles v. United States, Nos. 11-CM-612 & 11-CM-613 (decided October 23, 2014).

Players: Associate Judges Thompson and Beckwith; Senior Judge Farrell. Opinion by Judge Beckwith; concurring opinion by Judge Farrell; opinion concurring in the judgment by Judge Thompson. Anna Scanlon for appellant. David Goodhand for the United States. Trial Judge Brook Hedge (first trial); Judge Geoffrey Alprin (second trial).

Facts: Appellant was twice convicted, in separate trials, for trying to sell counterfeit DVDs at a flea market on two different occasions. In the first incident, appellant offered to sell DVDs to an officer wearing plain clothes. The officer said he was not interested, and reported this discussion to another officer, Davis. When approached by Officer Davis, appellant said he was not selling DVDs. Officer Davis arrested him and, relying on an informant tip, found, about eight feet away from appellant, a stack of crates with counterfeit DVDs underneath appellant’s backpack, which contained his ID. In the second incident, about a month after the first, Officer Davis found appellant’s backpack lying near crates containing counterfeit DVDs. Although Officer Davis did not find an ID inside appellant’s backpack this time, she knew the backpack (and thus the DVDs) belonged to him because she recognized it from the first incident.

Issue: Did the prosecutor violate Brady by belatedly disclosing, in the middle of the first trial, that Officer Davis found the backpack containing appellant’s ID and the counterfeit DVDs about eight feet away from appellant rather than, as the prosecutor had implied, as part of a search incident to appellant’s arrest?

Holding: Yes.

• Appellant preserved his Brady claim, even though trial counsel “did not invoke Brady by name,” because counsel made an objection with “the clear hallmarks of a Brady claim” by seeking exclusion of the government’s physical evidence as a sanction for the prosecutor’s belated disclose of the informant tip.

• Brady applies to facts “tending to show the inadmissibility of government evidence,” including — as here — facts that would support a successful Fourth Amendment motion.

• Here, the suppressed information tended to show that Officer Davis’s warrantless search of appellant’s backpack and crates, which were outside of appellant’s “wingspan,” did not fall within the search-incident-to-arrest exception to the warrant requirement.

• The prosecutor “suppressed” this information because the belated disclosure made the defense unable to “use the favorable material effectively.” The “confused aftermath” of the belated disclosure made counsel unable to “appreciate [its] full legal significance” during the first trial. This led the trial court to erroneously rule that the government’s physical evidence was admissible, and counsel had no obligation to seek reconsideration of this ruling, which constituted “law of the case” for both trials.

Practice tips:

• During discovery, cite this case to demand that the government turn over any information that would tend to justify suppression of its evidence. And if the government fails to comply, seek Brady sanctions.

• Cite this case when the government argues that your appellate claim was not preserved at trial because counsel either (a) didn’t specifically cite the controlling rule or (b) didn’t seek reconsideration of the trial court’s initial ruling.  JM

Read full opinion here.