Parental Discretion Advised: The DCCA Grapples with the Admissibility of Rap Lyrics and Other Issues in 9-Month, 6-Person Conspiracy Trial

 Note: This is our second installment on the 232-page decision that the DCCA issued in this case last November.  The first installment was posted on March 1.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015). 

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2004 murder of Terrence Jones and assault of Richard Queen, the 2006 murder of James Taylor and assault of Bernard Mackey, and obstructions of justice related to the Jones/Queen and Taylor/Mackey incidents. 

The issues analyzed in this post are numbered according to the section numbers used in the opinion.

Issues VII(A): Whether the evidence was sufficient to make out a single conspiracy involving all six appellants.  Whether the object of the conspiracy was lawfully constrained and defined in the indictment. 

Holding VII(A): Yes and yes. Because of the way the indictment was worded, the Court considers whether it established each appellant’s knowing participation in an agreement either to obstruct justice or assault or kill those whose interests were contrary to the defendants and their conspirators.  Testimony established that membership in the Crew was “a way of life” that implied certain reciprocal rights and responsibilities, including the need to retaliate against “snitches” and rival drug dealers.  (pp. 22-25).  Appellants’ participation in drug dealing and the violent overt acts in the indictment established their knowing participation in the conspiracy.  (pp. 25-34).  A conspiracy’s purpose should not be defined in too narrow terms.  The conspiracy count adequately apprised appellants of the scope and timing of the alleged conspiracy and allowed them to prepare a defense.  (pp. 34-35).

Issue VIII(E): Whether the trial court erred in admitting violent rap lyrics that referenced murder and drug-dealing, apparently authored by Mr. Rushing, Mr. Tann, and a third, unindicted person (Michael Smith), along with a social media profile authored by Mr. Beaver. 

Holding VIII(E):  No.  First, the rap lyrics bore sufficient indicia of authenticity in that they were primarily in the first person and purportedly autobiographical.  (pp. 127-29).

Second, testimony showed that Michael Smith was a member of the predicate conspiracy at all times relevant to the hearsay exception for co-conspirator statements.  (pp. 129-30).

Third, the statements at issue furthered the conspiracy by promoting the stature of the Crew within the community and spreading its messages of violence and intolerance toward would-be rivals and informants.  (pp. 130-32).

Fourth, as a matter of first impression in the DCCA, the trial court did not abuse its discretion in determining that the prejudicial effect of this content did not substantially outweigh its probative value, given the “specificity with which the lyrics describe the facts surrounding the offense(s) charged,” how hotly contested the conspiracy charge was, and the fact the trial court culled the government’s evidence for unfairly prejudicial content.  (pp. 133-35).

Issue VIII(F):  Where the jury had already found Mr. Harris and Mr. Arnette guilty of conspiring with Mr. Tann to, among other things, murder, but had not yet found Mr. Harris and Mr. Arnette guilty on separate aiding-and-abetting charges in the Taylor/Mackey and Jones/Queen incidents—

Whether the trial court erred in denying Mr. Harris and Mr. Arnette’s motion for mistrial or Mr. Harris’s motion to voir dire the jury, when Mr. Tann stood up and stated,

I don’t see how I can get found guilty and what type of court is this?  I wasn’t even there. . . . [N]owhere near . . . I get found guilty and I’m innocent.  God going to challenge y’all for this.  I’ll see y’all in heaven. . . .  I’m innocent.  How the fuck I get found guilty? . . .  That’s fucking—that’s crazy[,]

(pp. 135-39).

Holding VIII(F):  No.  Even taking as true the alleged juror statements that Mr. Tann had made a “death threat” to them and had similarly threatened witnesses throughout the trial, Mr. Tann’s statements did not expressly implicate his codefendants, the court issued a sua sponte curative instruction after his outburst, and no juror contacted the court with any concern following the outburst.  The trial court properly considered the risk that further inquiry would magnify a non-issue.  The cases cited by Mr. Harris, where the court has called for voir dire on juror bias, have all turned on facts outside the court’s direct knowledge, as opposed to Mr. Tann’s outburst (and the jury’s reaction), which happened in open court.  (pp. 141-42).

Of Note:
The outcomes of the issues summarized above turn on the particular facts of this case and therefore, practitioners grappling with similar issues in their own cases will want to study the opinion carefully.  
 

Such caution in interpreting and applying the Court’s opinion applies with great force to the issue of whether the trial court abused its discretion in determining that the prejudicial effect of admitting the evidence of violent rap lyrics did not substantially outweigh their probative value.  

In the Court’s own words—

While there is no abuse of discretion on this record, we could easily envision a case where lyrics, poetry, or other statements in a form traditionally understood to be artistic expression were not sufficiently specific to the charged crime so as to have such important probative value.  Evidence that doubles as a type of art will often be a confusing mixture of truth and fabrication.  Therefore, trial courts must very carefully scrutinize such materials and statements for unfair prejudice.  (p. 135 n.6).  WC

Read full opinion here.

 

The (new) law of unintended consequences: DCCA announces a new test for aiding and abetting

Note: Last November, the DCCA published a 232-page opinion deciding the consolidating appeals arising from a nine-month jury trial in 2008-2009.  The Court addressed multiple issues (it's never a good sign when an opinion has an index); we'll cover the highlights in two installments.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015).

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from the appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2006 murder of James Taylor and assault of Bernard Mackey. (pp. 5-6).

Mr. Taylor and Mr. Mackey were shot when several Crew members opened fire upon a third person, Omar Harrison.  Mr. Harrison had been in a fight with Ashley Tyndle, the girlfriend of Crew member Alphonce Little. Mr.  Harrison had allegedly slapped Ms. Tyndle and challenged her to “go get” Mr. Little.  When news of the fight and the challenge spread, Saquawn Harris and Michael Tann converged on Mr. Harrison from different directions and opened fire.  After the first wave of shots, Robert Foreman, another alleged Crew member (who was not a defendant in this trial) who was standing across the street and away from Harris and Tann, opened fire.  Mr. Taylor and Mr. Mackey were shot standing near the truck that Mr. Harrison used to narrowly escape.  (pp. 10-11). 

Mr. Taylor died from a single gunshot to the head.  Alphonce Little testified that Mr. Taylor was not shot until after Mr. Harris had run out of bullets.  Mr. Little further testified that after the incident, Mr. Foreman claimed credit for killing Taylor.  There was no evidence linking Mr. Mackey’s wounds to any particular shooter.  The government conceded that neither Mr. Harris nor Mr. Tann was aware of Mr. Foreman’s presence either before or during the shooting.  Mr. Foreman had decided to join the attack upon seeing and/or hearing Mr. Harris and Mr. Tann open fire.  (pp. 11-12, 52-53, 68). 

Mr. Harris and Mr. Tann were indicted for the first-degree premeditated murder while armed of Mr. Taylor and the assault with intent to kill while armed (AWIKWA) of Mr. Mackey.  At trial, the government argued that Mr. Harris and Mr. Tann either were principals or had aided and abetted the commission of the offenses.  Regarding the latter theory, the government argued that Mr. Harris and Mr. Tann were guilty by intentionally associating themselves with the actual shooter at the time of the shootings and firing at Omar Harrison, thereby aiding the shooter.  (pp. 53-54).

The trial court refused Mr. Harris and Mr. Tann’s request to instruct the jury that, assuming Mr. Foreman had fired the shots that killed Mr. Taylor and wounded Mr. Mackey, they could only be guilty of aiding and abetting if they knew of Mr. Foreman’s presence and knew that by firing first, they were helping or inciting him to commit murder and assault.  Mr. Harris and Mr. Tann were further prevented from arguing that their ignorance of Mr. Foreman’s presence precluded their guilt as aiders and abettors.  On the contrary, the trial court instructed the jury that Mr. Harris and Mr. Tann could be convicted, despite their ignorance of Mr. Foreman’s presence, as long as they knowingly associated in the commission of the crime.  The jury found Mr. Harris and Mr. Tann guilty of the murder of Mr. Taylor and the AWIKWA of Mr. Mackey.  (pp. 54-55).

Issue: “[W]hether the aider and abettor must know of the presence and conduct of the specific principal and form the intent to help him or her with the commission of his or her crime, as opposed to [merely sharing] in the mens rea required to commit the crime itself.”  (pp. 62-63). 

Holding: No. The aider and abettor need not know of the presence of the principal in order to be guilty under an aiding-and-abetting theory as long as the aider and abettor, while sharing the mens rea of the principal, foreseeably incited acts by a principal who shared in their “community of purpose.”  “Community of purpose” need not involve an actual agreement to commit a specific crime, as long as there is some understanding, even if tacit, connecting the accomplice(s) and the principal.  (pp. 74-75 & n.27).

Here, the evidence allowed the jury to conclude that Mr. Harris, Mr. Tann, and Mr. Foreman shot at Mr. Harrison with the same intent and purpose: to kill him for his transgressions against an associate of the alleged Crew.  Mr. Harris and Mr. Tann purportedly knew that firing at Mr. Harrison would elicit the support of other Crew members, like Mr. Foreman, who shared the same basic interest in retaliating against Mr. Harrison.  Thus, Mr. Harris and Mr. Tann foreseeably encouraged a group that included the principal to attack Mr. Harrison.  (pp. 75-77). 

While the trial court erred by failing to require the jury to find a “community of purpose” between accomplices and principal and foreseeability of the principal’s conduct, this error was harmless.  Given that the jury found that Mr. Harris and Mr. Tann (and possibly Mr. Foreman) were engaged in a conspiracy, one of the alleged objectives of which was to kill persons with interests contrary to the conspirators, there is no reasonable possibility that it would have found that the men did not share a common purpose and design to murder Omar Harrison. (pp. 87-88).

Of Note: 

• The portion of the opinion dealing with this issue should be studied with care, as the test for aiding and abetting recognized by the majority —shared mens rea, “purposive intent,” foreseeability, and “community of purpose”— is open-textured and its applicability to any case is necessarily fact bound.  

• The majority relied heavily on the facts, outcome, and reasoning of several cases in deriving the test applied in this case.  (pp. 60-72).  Attorneys grappling with the majority’s test in the future should also study those cases carefully.  

•  The Court separately addressed sufficiency of evidence to prove aiding and abetting earlier in the opinion, when considering whether the government had proven that Michael Tann had aided and abetted the murder of Terrence Jones, while Antonio Arnette simultaneously aided and abetted Mr. Tann’s armed robbery of Richard Queen. Although the court relied on the novel aiding-and-abetting theory to affirm Mr. Tann and Harris’s convictions for the Taylor/Mackey incident, its approach to analyzing aiding and abetting in the Jones/Queen incident was murkier and at times contradicted the Taylor/Mackey approach.

In 2004, Mr. Jones and Mr. Queen were beaten and shot after trying to mediate a conflict between Crew members Donald Matthews and Kyara Johnson.  When word of Mr. Jones and Mr. Queen’s interference reached Mr. Arnette, Mr. Arnette sent Lannell Cooper toward Mr. Jones and Mr. Queen, telling him to bring his gun.  Mr. Cooper pointed his gun at Mr. Jones and said words to the effect of “pat [their] pockets.”  Mr. Arnette punched Mr. Jones and patted his pockets.  Mr. Cooper shot Mr. Jones once, when Mr. Jones resisted, and shot Mr. Jones again, killing him, as Mr. Jones tried to crawl to safety.  At about the same time, Mr. Tann and others beat Mr. Queen and went through his pockets.  Mr. Tann shot Mr. Queen in the back with a gun that he picked up off of the ground as Mr. Queen tried to run away.  Mr. Queen testified that his assailants took cash and cigars.  (pp. 8-9).

The court affirmed Mr. Tann’s conviction for aiding and abetting Mr. Cooper’s murder of Mr. Jones (and Mr. Cooper’s possession of a firearm during the murder) because Mr. Cooper had coordinated the pat-down of both Mr. Jones and Mr. Queen and the attacks on both men had happened close enough to each other (about ten feet apart) to allow the jury to infer a “knowingly organized (if not verbally articulated) venture” to allow the attackers to “better subdue, rob, and eventually shoot both [men].”  (p. 38-39).  Mr. Tann had aided in the venture by subduing Mr. Queen.  (pp. 39-40).  Thus, arguably, Mr. Tann’s conviction depended on evidence of his intentional participation in the joint venture, as opposed to foreseeably aiding a separate attack on Mr. Jones.  (p. 38) (noting “powerful evidence of a joint and coordinated effort”; contrasting with Mr. Tann’s argument that the attacks were distinct).  The court similarly affirmed Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s robbery of Mr. Queen.  (pp. 46-47); see (p. 46) (“it was reasonable for the jury to have viewed the entire attack (including the robbery) as a coordinated venture”).  

However, the court vacated Mr. Arnette’s conviction for aiding and abetting the “while armed” element of Mr. Tann’s robbery of Mr. Queen, as well as Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s possession of a firearm during the robbery because the evidence did not show that Mr. Arnette had “meaningful notice” that Mr. Tann would use a gun to complete his attack on Mr. Queen.   (pp. 47-49).  (Mr. Tann had picked up the gun only after the robbery began.)  Seemingly contradicting its own Taylor/Mackey analysis, the Court held that while use of a gun may have been reasonably foreseeable to Mr. Tann, “foreseeability alone is insufficient to support such a judgment of conviction under an aiding-and-abetting theory of liability.”  (p. 47).  The Court only confused matters further by suggesting later in the opinion that a different result might follow if Mr. Arnette had known that “Tann was using a gun to carry out the robbery,” and “decided to proceed with his involvement in the attack on Terrence Jones and Queen” anyway.  (p. 49).  This seems to imply that reasonable foreseeability is sufficient for aiding and abetting. WC

Read the full opinion here.

Sleeping It Off in Your Car Can Be DUI (and a Statutory Presumption that Defendants with Prior DUIs who Refuse Breathalyzer Tests Were “Under the Influence” Is Not PLAINLY Unconstitutional)

Anthony Bell v. District of Columbia (decided February 25, 2016)

Players: Chief Judge Washington, Associate Judge Thompson, and Senior Judge Newman. Opinion by Judge Thompson. Joseph A. Scrofano for Mr. Bell. Trial Judge: A. Franklin Burgess, Jr.

Facts: Police found Bell asleep in the driver’s seat of a car that was parked outside a nightclub shortly after closing time, with the car keys in his pocket. They had difficulty rousing him, and upon removing him from the vehicle, noted a strong smell of alcohol and slurred speech by Bell. Bell failed the standardized field sobriety tests, was arrested and advised of his rights under D.C.’s Implied Consent Act, D.C. Code § 50-1905. He refused to consent to a breathalyzer test. Bell’s defense was that he was tired from working long hours and in a very deep sleep from which it was difficult to awake. He said he refused the breath test because he had consumed “a couple of beers” and “figured that it would register[.]” Finding “overwhelming” evidence that Bell—who had a prior DUI conviction— was under the influence, the trial judge found him guilty of DUI.

Issue 1: Was Mr. Bell “in actual physical control of the vehicle” as required by the DUI statute, D.C. Code § 50-2206.11?

Holding 1: Yes. Following the factually indistinguishable case of Berger v. District of Columbia, 597 A.2d 407 (D.C. 1991), the Court of Appeals concluded that Bell was in “actual physical control” of his car because he was alone, behind the steering wheel, and had the car keys in his pocket. Thus, he “was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive.”

Issue 2: Does the Implied Consent Act’s statutory presumption that individuals with a prior DUI conviction who refuse a breathalyzer test are “under the influence” unconstitutionally shift the burden to such defendants to prove their innocence?

Holding 2: Not in this case. Reviewing for plain error, the Court of Appeals held that the statutory presumption is not plainly unconstitutional because it is not plainly a mandatory presumption. Without deciding this unpreserved issue “definitively,” the Court noted that despite the mandatory-sounding statutory language, the presumption appears to be treated in practice as a constitutionally acceptable permissive presumption. The Red Book, for example, instructs that when a defendant with a qualifying conviction refuses to submit to chemical testing, jurors “may, but are not required to, conclude that s/he was under the influence.” In this bench trial, moreover, the judge’s ruling made clear that he did not treat the presumption as mandatory in finding Bell was under the influence.

Of Note:

• The Court does not “definitively” hold that the Implied Consent Act’s presumption is always constitutional. If, in a case where the presumption applies, the jury is not instructed with the Red Book’s permissive language, or in a bench trial the judge makes findings that suggest she felt bound by the presumption to find the defendant “under the influence,” defense counsel should object on constitutional grounds.

• The Court of Appeals noted that Bell was found “in the upright position of one intending to drive, rather than a reclined position” that might indicate “he lowered his seat back in order to sleep for a while.” One could use this footnote to attempt to distinguish other cases of intoxicated persons sleeping in a parked car’s reclined driver’s seat or where there are other indications that the person had no intention of driving the car. FT

Read full opinion here.

Sticks and stones may break my bones . . . but words will be punished more severely . . . when used in lieu of sticks or stones . . . to complete a robbery in D.C.

In re Z.B. (decided February 4, 2016).

The Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Senior Judge Pryor.  PDS for Z.B.  Trial Judge: Florence Y. Pan.

Facts:  The complaining witness flagged down a police officer to report the robbery of his cell phone moments earlier.  Ensuing radio broadcasts described “three young black male” suspects, including one six-foot-two-inches-tall seventeen-year-old, wearing a black jacket and blue gloves.  Following these broadcasts (which failed to mention the cell phone), two officers stopped Z.B., who was shorter than 6’2”, wearing one aqua and blue glove and a black ski mask that exposed his face, and carrying a cell phone that he put in his pocket upon seeing the police.  

The police brought the complaining witness to Z.B.’s location for show-up identification.  Upon positive identification, police placed Z.B. under arrest, at which point he asked: “How you going to say I robbed somebody?”  Subsequent search of Z.B.’s person revealed a cell phone that the complaining witness identified as his own. 

The trial court denied Z.B.’s motion to suppress the identification, his rhetorical question, and the cell phone recovered from him, as the fruits of an illegal stop under the Fourth Amendment.  It further adjudicated Z.B. involved with robbery, receiving stolen property, and two counts of misdemeanor threats to do bodily harm. 

Issue 1: Whether the trial court erred in denying Z.B.’s motion to suppress.

Holding 1: No.  “Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop.”

Issue 2: Whether Z.B.’s adjudications for robbery and misdemeanor threats to do bodily harm merge.

Holding 2: No.  Threats and robbery do not merge under Blockburger because each includes an element that the other does not.  Z.B.’s argument that it is an “absurd result” to punish the robber who uses threats more severely than the robber who uses force “misses the mark” because it fails to appreciate that the former has “not only committed an assault but also committed threats.”  WC

Read full opinion here.

You can burglarize a coal yard or a lumber yard, but not a construction site.

George Sydnor v. United States (decided January 14, 2016)

Players: Associate Judges Fisher and Easterly, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Sydnor. Trial Judge: John McCabe.

Facts: Mr. Sydnor entered a fenced-in construction site owned by Nicholson Construction Company and took six steel pipes. He was arrested shortly thereafter, and was charged with and convicted of burglary.

Issue 1: Did Mr. Sydnor's actions constitute burglary, where a person who breaks and enters a "yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade" with the intent to commit an offense is guilty of burglary? More specifically, was the construction site a place where goods or chattels were kept "for the purpose of trade?"

Holding 1: The construction site was not a place where goods or chattels were kept "for the purpose of trade," and so Mr. Sydnor could not be guilty of burglary for his actions there. The Court, in its de novo analysis of the meaning of that clause of the burglary statute, held that "for the purpose of trade" means goods that will eventually be bought or sold. It rejected the interpretation that the government urged: that any goods used in business -- i.e., a trade -- were covered. Applying the principle of "ejusdem generis," the Court held that by naming lumber and coal, Congress indicated that the "goods or chattels" in such a yard had to be commercial objects, like lumber or coal, that would be bought and sold. In this case, none of the items in the construction site were intended for commercial sale; they were stored there to be used in the construction project. Mr. Sydnor's conviction for burglary therefore must be vacated.

Issue 2: Was Mr. Sydnor nevertheless guilty of unlawful entry?

Holding 2: The court seemed to doubt that unlawful entry was a lesser-included offense under the Blockburger test, but because Mr. Sydnor had requested an unlawful entry instruction at trial the Court found that Mr. Sydnor was precluded from raising that argument on appeal. The Court then analyzed the sufficiency of the evidence that Mr. Sydnor committed unlawful entry and found it sufficient. It remanded the case for the court to enter a judgment of guilty on unlawful entry. SN

Read full opinion here.

No residue (or other additional evidence), no crime for possession of drug paraphernalia.

DeAndre Brooks v. United States (decided January 28, 2016).

Players: Associate Judges Blackburne-Rigsby and McLeese, Senior Judge Farrell. Opinion by Judge McLeese.  Trial Judge: Truman A. Morrison, III. Jamison Koehler for Mr. Brooks.

Facts: United States Park Police were searching for robbery suspects and encountered Mr. Brooks and three other men. When police asked them to stop, Mr. Brooks began to walk away, and after an officer touched Mr. Brooks’s shoulder, Mr. Brooks “swatted” away the officer’s hand and struck the officer’s forearm. Officers attempted to arrest Mr. Brooks, but he “flailed about, kicking and trying to break free.” Eventually, police placed him under arrest. During the search incident to arrest, an officer with twelve years experience investigating drug offenses found in Mr. Brooks’s pants pocket “a metal grinder with a picture of Bob Marley on the front that is commonly used for grinding up marijuana.” At trial, another officer who had been involved in over 500 drug operations, testified that he had recovered grinders numerous times, that grinders are commonly used to grind up marijuana by people who smoke marijuana, and that there typically is green plant material in the grinders police find on people. Police also seized a black ski mask and four cell phones from Mr. Brooks.

Following a bench trial, the trial court found Mr. Brooks guilty of both possession of drug paraphernalia and assault on a police officer. The trial court explained: “I find that although there is not a rich amount of detail about Bob Marley grinders, the last witness has told us that he has seized them on many occasions, that they are commonly used to grind marijuana and I think that is enough to infer an intent to use in the absence of any other explanation emerging from the evidence that would cast a doubt on that[.]”

Issue 1: Was the evidence sufficient to convict Mr. Brooks of possession of drug paraphernalia?

Holding: No. D.C. Code § 48-1103(a)(1) makes it “unlawful for any person to use, or to possess with intent to use, drug paraphernalia” to “process,” “prepare,” “contain,” “or otherwise introduce into the human body a controlled dangerous substance.” Despite viewing the evidence in the light most favorable to the government and that a trial court’s factual findings after a bench trial will not be reversed unless “plainly wrong or without evidence to support [them],” D.C. Code §17-305(a), the Court of Appeals determined that there was insufficient evidence to show that Mr. Brooks intended to use the grinder in a manner prohibited by D.C. Code §48-1103(a)(1). The Court concluded that “there was no evidence that anyone saw Mr. Brooks use the grinder in any way,” “that Mr. Brooks made any statements suggesting an intent to use the grinder for drug-related purposes,” or “that Mr. Brooks possessed or used drugs, either at the time of the offense or at any previous time.” 

The government argued that his intent to use the grinder could be inferred from three pieces of evidence: “(1) the grinder bore the likeness of Bob Marley; (2) an experienced narcotics officer testified that people who smoke marijuana commonly use grinders to grind up marijuana, and (3) another experienced narcotics officer testified that he had recovered grinders numerous times.” The Court disagreed with all three arguments. First, the Court reasoned that even if it is commonly known that Bob Marley is “virtually synonymous” with marijuana, at trial the United States did not introduce any such evidence and did not ask the trial court to take judicial notice of such an association. Ultimately, the Court stated that the picture of Bob Marley on the grinder served “only as an unexplained identifying characteristic, similar to color or physical description, with no independent significance.” Second, the Court stated that the evidence did support a conclusion that there is an association between grinders and marijuana, but that alone is not sufficient, as drug use can be associated with a wide array of items and there needs to be additional evidence. And third, as to the officer testifying that he had recovered grinders numerous times, the Court noted that his testimony also was that those grinders contained green plant material in them, whereas there was no suggestion in the present case that the grinder recovered from Mr. Brooks had such material in it. Lastly, the Court said that it was unaware of “any case upholding a conviction for possession of drug paraphernalia based solely on evidence that a single item possessed by the defendant is commonly used for drug-related purposes.”

Issue 2: Did the trial court err in refusing Mr. Brooks’s request for a continuance?

Holding: No. The government charged Mr. Brooks in the present case on January 16, 2014. After a status hearing in March, 2014, Mr. Brooks rejected a plea offer in this case and trial was set for June 6, 2014. In the meantime, the government charged Mr. Brooks in a number of other cases. On June 4, 2014, Mr. Brooks filed a motion to continue trial because he had “not yet received a global plea offer to resolve all matters,” that he was represented by a different attorney in one of the cases, and that it was “likely that these matters can be resolved short of trial.” That same day, the government communicated via email a global plea offer, and the trial court denied the continuance. On the day of trial, Mr. Brooks’s trial attorney orally renewed the motion to continue, and explained that the most recent plea offer was not valid, as it required Mr. Brooks to plead guilty to being a felon in possession of a firearm, but that he had not actually been charged with that offense and did not have a prior felony conviction. The trial court informed counsel that it had scheduling concerns and asked how likely it was that an agreement could be reached. Defense counsel said she would have to discuss that with Mr. Brooks. The trial court agreed to briefly pass the case, but indicated it would not grant a continuance in the absence of an assurance that a plea agreement was likely. When the parties returned after the break, defense counsel made no further representations about a plea agreement and trial began.

The Court of Appeals held that the trial court did not abuse its discretion in denying the request for a continuance. The Court explained that denial of a request based on a desire to continue plea negotiations is “different in character from the kinds of prejudice reflected in cases in which this court has reversed,” such as a request to obtain a witness whose testimony could exonerate the defendant, or a request because new counsel needed the opportunity to be prepared to rebut the government’s evidence.

In the present case, the Court determined there was no abuse of discretion in the trial court’s decision for three reasons. First, despite acknowledging the importance of plea bargaining, the Court reasoned that defense counsel “was unable to provide any concrete assurance” about “the likelihood that a global plea agreement would be reached.” Second, the Court noted that the written motion for a continuance was not filed until two days before trial, which was the last day on which such a motion can typically be filed pursuant to Super. Ct. Crim. R. 111(c). The Court stated “that defense counsel could have been more diligent in trying to work out a plea agreement before the trial date, as well as on the trial date.” And third, despite the fact the government did not oppose the request and there was no suggestion that Mr. Brooks was acting in bad faith, the Court concluded that the trial court “reasonably pointed out that trial in this case would only take a few hours and that routinely continuing such minor matters in the hope of obtaining a global plea agreement involving more serious charges could cause delay and congestion on the court’s calendar.” Ultimately, the Court believed that the trial court “reasonably balanced the relevant considerations and acted within its discretion to deny the request for a continuance.”

Of Note:

• The Court, citing a number of cases from other jurisdictions, made it clear that to convict someone of possession of drug paraphernalia, a single item by itself likely will never be sufficient. It contrasted cases where evidence was found to be insufficient when police found a single pipe, or a syringe, but nothing else, with cases where the evidence was sufficient where police found a needle and syringe and the defendant had track marks on his arm, or a syringe and aluminum bags with traces of heroin, or a scale and glass pipe near a large quantity of crack cocaine. 

• When asking for a continuance based on a desire to continue plea negotiations, the Court “assume[d], without deciding, that a defendant in some circumstances might be able to establish that a continuance to permit further plea bargaining was ‘reasonably necessary for a just determination of the cause.’” (quoting Kyles v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). The Court also cited Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012), where the Supreme Court reiterated the “‘central role plea bargaining plays in securing convictions and determining sentences.’” If you are seeking a continuance based on a desire to continue plea negotiations, try to do so as soon as practicable, and be sure to make a clear record as to exactly what the prejudice will be to your client if the court denies the request and the chances of an agreement being reached. See Daley v. United States, 739 A.2d 814, 817 (D.C. 1999) (discussing relevant factors in determining if a trial court abused its discretion in denying a request for a continuance, including “the reasons for the request,” “the prejudice resulting from its denial, the party’s diligence in seeking relief, any lack of good faith, and prejudice to the opposing party”). BM

Read full opinion here.

OBJECT if a Firearms Examiner Testifies with Any Degree of Certainty That Markings on Recovered Bullets Were Produced By a Specific Gun

Marlon Williams v. United States (decided January 21, 2016)

Players: Associate Judges Thompson and Easterly, Senior Judge Nebeker. Opinion by Judge Easterly. Concurrence by Judge Easterly. Enid Hinkes for Mr. Williams. Trial Judge: Russell F. Canan.

Facts: Soon after Min Soo Kang was found shot to death in Southeast D.C., police used the OnStar navigation system installed in his Cadillac Escalade to recover the vehicle. From a digital database of known fingerprints, they identified Marlon Williams as a possible source of fingerprints found on and inside the Escalade. A subsequent search of Williams’s home turned up a gun in his bedroom. A firearms and toolmark examiner test-fired the gun and compared the resulting bullet markings to markings on bullets recovered from Kang’s vehicle. At trial, the examiner testified that every gun leaves “unique” marks on the bullets it fires, and that based on his comparison, there was not “any doubt in [his] mind” that the bullets recovered from Kang’s vehicle were fired by the gun recovered from Williams’s room. On the basis of this evidence—along with a cooperating witness’s testimony that Williams made incriminating statements and eyewitness testimony that someone matching Williams’s description was opening and closing the hood of the Escalade around the time the OnStar service remotely disabled it—a jury convicted Williams of first-degree felony murder while armed, attempted robbery while armed, PFCV, and CPWL.

Issue: Should the firearms and toolmarks examiner have been permitted to testify that the markings on the bullets recovered from Kang’s Escalade were “unique” and that he was without “any doubt” that they were fired by the gun recovered from Williams’s room?

Holding: The majority opinion strongly implied — and Judge Easterly’s concurrence expressly concluded — that the examiner should not have been permitted to testify with such absolute certainty that the recovered bullets matched Williams’s gun, but the Court declined to reverse on that ground because the unobjected-to testimony did not rise to the level of plain error. Although the same issue was presented in an earlier case, Jones v. United States, 27 A.3d 1130 (D.C. 2011), the government had at that time assured the Court that its policy was “to only elicit firearms examiners’ opinions [of a match] to a reasonable degree of scientific certainty,” not “100% certain[ty].” In light of this assurance, the Court in Jones merely “assume[d], without deciding, that [firearms and toolmark] experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.” Id. at 1139 (emphasis added). Thus, there was no controlling precedent in this jurisdiction at the time of Williams’s trial, nor was there sufficient weight of authority from other jurisdictions to say that the trial court “plainly” erred in allowing the examiner’s testimony. And while the government concededly violated its own policy in this case, the Court held that such a policy is not binding law and cannot by itself form the basis of a plain error determination.

Concurrence: In addition to authoring the majority opinion, Judge Easterly wrote a separate and forceful concurrence in which she concluded that D.C. courts should “preclude a firearms and toolmark examiner from testifying with unqualified, absolute certainty.” The reason, Judge Easterly explained, can be found in two reports published by committees of the National Research Counsel (NRC), an arm of the publicly chartered National Science Foundation. The first, a 2008 report commissioned by the Department of Justice, found that there is simply not enough scientific research to establish that “firearms-related toolmarks are unique: that is, [that] a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others,” and that experts’ commonplace testimony to that effect “cloak[s] an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.” The second NRC publication, a 2009 report commissioned by Congress, similarly concluded that there is no statistical basis to say with any particular degree of certainty that toolmarks on a bullet match a specific gun or other bullets fired from that gun. In light of these findings, Judge Easterly concluded, “[c]ertainty statements” like those at issue in this case are not only not helpful to juries, they are misleading, and they create an “alarming” risk of wrongful convictions. As Judge Easterly put it, “a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic . . . .” As such, they are not admissible as expert testimony.

Of Note:

• So misleading is testimony that an examiner is certain of a match to a specific gun—and likewise, testimony that each gun leaves a “unique” mark on bullets it fires—that Judge Easterly suggested defense counsel is constitutionally ineffective if he or she fails to object, and the government is in violation of its obligation under Napue v. Illinois, 360 U.S. 264 (1959), to avoid knowingly presenting false or misleading evidence if it elicits or allows such certainty statements to go uncorrected.

• Judge Easterly’s concurrence could provide substantial support to argue that an examiner’s claim of any degree of certainty in a match, even if not 100% certainty, is impermissibly misleading. The concurrence specifically notes that firearms examiners should not be permitted to claim “a reasonable degree of scientific certainty” about a toolmark match, because the 2009 NRC report found it impossible to say “how many points of similarity are necessary for a given level of confidence in the result.” It also cites with approval cases from federal district courts that have prohibited an examiner from saying he reached his conclusions with any degree of certainty and limited an examiner to describing the observed toolmark similarities without stating any conclusion of a match.

• The majority opinion rejected, for lack of plain error, an unpreserved claim that the firearms examiner failed to present the images or other “documentation” underlying his opinions for the jury to evaluate for itself. It nevertheless left the door open for a future argument that toolmark pattern-matching testimony must include “sufficient documentation to permit the jury to meaningfully evaluate the expert’s subjective conclusions,” noting one federal district court had so held, and another had urged, but not required, supporting documentation.

• Williams also raised several other issues on appeal, including sufficiency of the evidence for attempted armed robbery; a hearsay and Confrontation Clause challenge to the firearms examiner’s report, which bore the signature of a second, non-testifying examiner; an unpreserved challenge to the admission of fingerprint evidence; an unpreserved argument that he was entitled to a hearing based on Franks v. Delaware, 438 U.S. 154 (1978), because of a discrepancy between the fingerprint examiner’s testimony and the search warrant issued for his home; and a claim that his attempted robbery and corresponding PFCV conviction must merge with his felony murder conviction. The Court rejected all but the merger argument. FT.

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