2019: The (Early) Year In Review (Part 2)

UPDATE: Sims v. U.S., 15-CF-914 (decided August 15, 2019) and U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) were added to Evidentiary Issues section of this post on October 21, 2019. Beasley v. U.S., 17-CF-1398 (decided November 21, 2019) was added to Jury Selection section of this post on November 22, 2019. Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) was added to the Expert Testimony section and the new Physical Evidence section of this post on November 25, 2019. WCC

JURY ISSUES

Right to a Jury Trial

Miller v. U.S., 13-CM-628 (decided June 6, 2019) –

• Holding: Failure to provide a jury trial for a deportable offense was plain error in light of Bado v. U.S., 186 A.3d 1243 (D.C. 2018) (en banc), even if appellant was subject to deportation on other grounds at the time of trial and had no pre-existing right to remain in the U.S. 

Jury Selection

**Beasley v. U.S., 17-CF-1398 (decided November 21, 2019) –

• Holding 1: Following defense counsel’s Batson challenge, the trial court erred in finding no prima facie case of discrimination, where the government “used 80% of its peremptory strikes against black jurors, a group that comprised approximately 33% of the venire.” Slip. Op. at 8. A statistical disparity of this magnitude was sufficient to create prima facie case, notwithstanding the lack of evidence regarding the racial makeup of the seated jury and the fact that the defense also struck some of the black jurors included in its prima facie case. Although the court has “taken note in some cases when certain classes of people have been totally excluded from a jury through the government’s use of strikes,” it has “never signaled that this factor was” either necessary or sufficient. Id. at 9. Given that the reasons underlying the parties’ overlapping strikes are “not readily apparent, the overlap [is] not a valid basis for subtracting . . . jurors from the step-one analysis of the government’s strikes.” Id. at 10-11.
• Holding 2: As in Haney v. United States, 206 A.3d 854 (D.C. 2019), the trial court’s erroneous finding that the defense had failed to establish a prima facie case requires reversal because resuming the Batson inquiry on remand, after more than two years have passed, is not feasible. The government made “no contemporaneous proffers regarding its strikes of any jurors,” and as the government has conceded, the record provides no “obvious justification” for at least three of the relevant strikes. Id. at 13-14.

Haney v. U.S., 17-CF-420 (decided April 25, 2019) –

• Holding 1: The defense established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), where “the prosecutor used seven out of nine (or 78%) of her peremptory challenges,” including every one of her first six challenges, to strike black jurors, who comprised 39% of the qualified venire, and “used four (or 44%) of her peremptory challenges to strike black males, who constituted only 18% of the venire,” with the result that “no black males served on the jury in a case where the defendant is a black male.” Slip Op. at 12.
• Holding 2: The trial court’s erroneous refusal to proceed to step three of the Batson inquiry (based on its erroneous determination that the defense had not made a prima facie showing), required reversal, as opposed to remand, because the prosecutor proffered demeanor-based reasons for her strikes, the trial court made no contemporaneous findings regarding those reasons, the record provided no basis to test their accuracy, and, after more than two years, a remand hearing could not be expected to “replicate the probing inquiry to which appellant was entitled.” Id. at 15-19.

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

• Holding: “[U]se of [a noise-cancelling] husher during individual-juror voir dire d[oes] not constitute closure or partial closure of the courtroom," burdening the right to a public trial, "but instead was a reasonable alternative [] to closing the proceeding, that protected appellant’s public-trial right.” Slip Op. at 19-20 (internal quotation marks and citation omitted).

Jury Deliberations 

Roberts v. U.S., 15-CF-307 (decided August 8, 2019) –

• Holding 1: Where a juror’s note indicated a possible deadlock and a numerical split in the jury’s voting, the trial court erred and violated appellant’s constitutional right to be present and represented by counsel at trial when, in an effort to prevent itself from learning the numerical split, the court refused to allow defense counsel to read the note. Slip Op. at 8-11.
• Holding 2: The trial court’s error was not harmless beyond a reasonable doubt because, had defense counsel been able to read the note, he could have relayed its contents (minus the numerical split) and argued—“with authority” and a “reasonable possibility” of success—for a mistrial or an instruction that no juror should “surrender [her] honest conviction as to the weight or effect of evidence solely because of the opinion of [her] fellow jurors, or only for the purpose of returning a verdict.” Id. at 12-13. Although defense counsel sought these remedies unsuccessfully below, the trial court’s reason for refusing to grant them was its self-imposed ignorance regarding the note’s content. Id. at 13-14.

EVIDENTIARY ISSUES

Expert Testimony

**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019) –

• Holding: Where the government sent DNA profiles generated by one laboratory (DFS) to be interpreted by a second laboratory (Bode), amid reports of serious flaws in DFS’s interpretation procedures, the trial court did not abuse its discretion by allowing a Bode expert to testify regarding opinions that she derived from the data that DFS generated. The court had no reason to think the DFS data was unreliable given that “the criticisms of DFS pertained only to its statistical interpretation of DNA data,” not the procedures used to generate profiles, and given the Bode expert’s testimony that it was not uncommon for one laboratory to review and analyze data provided by another. Slip Op. at 20.

*U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) –

• Background: Appellant was convicted of multiple offenses related to an attack on his former landlord, Kelly, and the murder of Nichols, the man who replaced him as Kelly’s tenant. Kelly testified that appellant had entered his home after moving out and shot him in back of the head, before stabbing him, hitting him with a cinder block, and trying to put him in the trunk of a car. Witnesses corroborated that appellant fled Kelly’s house after the two struggled with each other. After Kelly called 911, police discovered Nichols’s body inside the house. At trial, the government’s theory was that appellant attacked Kelly to cover up the fact that he (appellant) shot Nichols earlier in the day. Appellant’s defense was that Kelly shot Nichols and then attacked appellant for refusing to help dispose of Nichols’s body. The government elicited false expert testimony purporting to match hair found on Nichols’s body to appellant, hair found on appellant’s coat to Nichols, and hair found on a cinder block in Kelly’s house to Kelly.
• Holding: The government’s false hair comparison testimony was material to appellant’s convictions related to the attack on Kelly because it tied appellant to Nichols’s murder, helping the government prove appellant’s alleged motive for assaulting Kelly. The prosecutor linked the two crimes in opening and closing and argued that hair analysis would prove that appellant was guilty of both. Moreover, by linking appellant to Nichols’s murder, the hair analysis contradicted appellant’s defense that Kelly had attacked him for refusing to help dispose of Nichols’s body. 

Williams v. U.S., 13-CF-1312 (decided June 27, 2019) (granting appellant’s petition for rehearing) –

• Holding: After Gardner v. U.S., 140 A.3d 1172 (D.C. 2016) and Motorola, Inc. v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), “it is plainly error to allow a firearms and toolmark examiner to unqualifiedly opine, based on pattern matching, that a specific bullet was fired by a specific gun.” Slip Op. at 22. 

Jackson v. U.S., 17-CF-943 (decided June 27, 2019) –

• Holding: In an assault case, the trial court reversibly erred in admitting evidence that appellant used PCP eighteen hours before he struck his longtime roommate in the eye with a knife, where the government presented no expert testimony to enable the jury to decide whether appellant was still under the influence at the time of the attack. Absent such expert testimony, appellant’s PCP use was substantially more prejudicial than probative and was not admissible to explain why appellant would attack the complainant or to impeach appellant’s ability to perceive and recall the incident. 

Jones v. U.S., 15-CO-1104 (decided March 7, 2019) –

• Holding: False testimony regarding microscopic hair comparison was material to the outcome of appellant’s armed robbery trial, given the high degree of certainty that the expert expressed regarding the comparison and the prosecutor’s forceful reliance on that certainty in closing. The remaining evidence, consisting of eyewitness identifications by long-time acquaintances, was not so overwhelming as to render the hair comparison immaterial. Slip Op. at 25-36. 

Hearsay

*Sims v. U.S., 15-CF-914 (decided August 15, 2019) –

• Holding 1: Where a government witness claimed that while talking to 911 outside of a crowded party, he overheard an unknown declarant accuse appellant of a shooting, the trial court erred by admitting the accusation as a present sense impression without sufficient evidence that it was based on personal knowledge. To satisfy the present sense impression exception, the proponent of a hearsay statement must show by a preponderance of the evidence, inter alia, that the statement was based on personal knowledge. Slip Op. at 10-13. The evidence presented did not meet this standard. No witness placed the unknown declarant at the shooting. Id. at 14-15. Although the declarant was inferentially near the government witness when the witness later found decedent’s body and called 911, the record does not show that this call happened close enough in time and place to the shooting to infer the declarant’s presence there. Id. at 15-18. 
• Holding 2: The trial court plainly erred in admitting evidence that when accused, appellant did not deny having dropped the clip from his gun while fleeing the scene of the shooting, under the adoptive admission exception to the hearsay rule, because government put forward no evidence from which a reasonable factfinder could infer that appellant heard and understood the accusation. Id. at 23-25.
• Holding 3: The trial court’s errors were not harmless because the government used the erroneously admitted hearsay statements to bolster the credibility of its only eyewitness, whose account and credibility were impeached on multiple fronts. Id. at 25-32.

Holman v. D.C., 15-CT-335 (decided February 28, 2019) –

• Holding: A police officer’s notes regarding the phone number that called complainant (in alleged violation of a civil protective order), were admissible, insofar as the officer transcribed the number from the call log on complainant’s phone, which contained machine-generated output, rather than the out-of-court statements of a human declarant. Appellant’s hearsay objection did not preserve a separate challenge to the reliability of the call log, and the trial court did not plainly err in admitting evidence of it despite reliability concerns expressed on appeal.

Physical Evidence

**Ruffin v. U.S., 15-CF-1378 (decided November 21, 2019)

• Holding: The trial court did not err in admitting into evidence a silver and black folding knife that police found in appellant’s jean pocket months after the attack on complainant, given that it fit complainant’s general description of the knife used during the attack. Although complainant never identified appellant’s knife or mentioned its black handle in describing the knife used by her attacker, and although there was a seven-week gap between the attack and when appellant would stipulate that his knife was in his possession, none of these factors was significant enough to deprive the knife of any probative value. Slip Op. at 24-25.

Mugshots

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

• Holding: Any error in admitting photo arrays that contained appellant’s mugshot was harmless beyond a reasonable doubt where, “[d]espite learning that appellant had broken the law” by possessing an unregistered gun and ammunition, the jury found him not guilty on some charges. Slip Op. at 24. 
• Of Note: In assessing whether admission of the photo arrays was harmless, the court reasoned, contrary to the trial court below, that “the unsmiling expressions on the men’s faces do suggest that the photos may be mugshots.” Id. at 23.

*Added October 21, 2019
**Added November 22/25, 2019

-WCC

2019: The (Early) Year In Review (Part 1)

The PDS Criminal Law Blog has been on hiatus since the beginning of 2019. During this time, the editors have been re-evaluating how best to serve its readers while summarizing the criminal jurisprudence of the D.C. Court of Appeals. Readers and editors agree that the blog would be more useful if its posts were shorter and relied more on readers to read opinions and understand the facts presented and arguments raised in each case.

During the blog's hiatus, the D.C. Court of Appeals has decided some 26 criminal cases. In the interest of updating practitioners and testing a shorter blog format, the blog will post brief synopses of the Court's 2019 criminal opinions, grouped by subject area, in a "year-in-review" format. Part 1 of this update follows. (Cases will appear in this update multiple times if their holdings span multiple subject areas):

UPDATE: Andrews and Jackson were added to the Fourth Amendment section of this post on October 15, 2019. WCC

DETENTION

In re R.O., 18-FS-760 (decided January 17, 2019) –

• Holding 1:  The DYRS order revoking R.O.’s community placement and placing him in a secure facility was not subject to direct review by the DCCA, but would be subject to appellate review on the merits where a Superior Court judge erroneously dismissed R.O.’s Administrative Procedure Act petition for lack of subject matter jurisdiction. Slip Op. at 2-13. 
• Holding 2: Revocation of R.O.’s community placement was unconstitutional where DYRS relied in part on an arrest that was not supported by probable cause. Id. at 13-14.

Jeffers v. U.S., 19-CO-35 (decided May 23, 2019) –

• Holding: To establish a “substantial probability of guilt,” giving rise to a presumption that no conditions of pre-trial release will reasonably assure community safety, “the United States must show at a minimum that it is more likely than not that the defendant would be found guilty beyond a reasonable doubt at trial of an offense permitting detention under [D.C. Code] § 23-1325.” Slip Op. at 9 (emphasis added).
• Of Note: The court took no position on whether a substantial probability requires “strong likelihood” or “reasonable certainty” of success at trial because the government’s proof did not meet the “more likely than not” standard. Id. at 11.

FOURTH AMENDMENT (updated December 9, 2019)

**Dozier v. U.S., 15-CF-1098 - Seizure/Terry Stop

• Holding 1: Appellant was seized for Fourth Amendment purposes by the time he complied with an officer’s request to put his hands on the wall so that police could frisk him for weapons, where armed, uniformed police parked in front of the alley appellant was walking out of, got out, walked up to appellant, and asked if they could speak to him (twice), if he had any weapons, and after appellant exposed his waistband to prove he did not, if they could pat him down. “Even assuming [this] interaction . . . began in a consensual manner, . . . there was a Fourth Amendment seizure by the time appellant submitted to the officers’ request to a pat-down” because “an innocent person in appellant’s situation would not have felt free to decline that request.” Slip Op. at 12. Factors relevant to the court’s determination include: the natural apprehensiveness any person would feel when approached by multiple officers in a secluded alley late at night, id. at 15; the officers’ persistence which signaled that appellant could not terminate the encounter until police finished their investigation, id. at 15-16, 23-24; and the restraint on appellant’s movement caused by the officers parking at the secluded alley’s entrance and walking toward appellant from that direction, id. at 23. 
• Of Note: In addition, the Court considered that “the encounter took place in a ‘high crime area’”--one subject to “frequent[] and visibl[e]” patrols--“and involved an African-American man.” Id. at 16. The court deemed these factors relevant because even an innocent man in such a neighborhood might reasonably perceive that he is the target of a criminal investigation when approached by police; id. at 16-17, 19; because “persons of color” were “more likely to be subjected to this type of police surveillance” and therefore “particularly justified” in fearing it; id. at 19; and because “[i]n the isolated setting where the encounter took place, appellant . . . reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened,” id. at 22.
• Holding 2: Because there was no reasonable articulable suspicion to seize by the time appellant submitted to being patted down, testimony that appellant took flight during the pat-down and subsequently threw an object containing a controlled substance should have been suppressed as the fruits of the illegal seizure. Id. at 27-28.

*Jackson v. U.S., 16-CO-523 (decided August 22, 2019) – Special Needs Search

• Holding 1: Warrantless GPS monitoring of appellant, a probationer, based on CSOSA criteria designating him a high-risk offender, was a constitutional “special needs” search because [1] appellant’s “reasonable expectation of privacy as a convicted offender on probation was diminished and . . . outweighed by the strong governmental interests in effective probation supervision,” and [2] there was no evidence “CSOSA placed him on GPS monitoring as a subterfuge to enable the police to [circumvent] the warrant and probable cause requirements of the Fourth Amendment.” Id. at 3.
• Holding 2: Appellant had no objectively reasonable expectation that CSOSA would withhold his GPS tracking data from the police, given [1] CSOSA’s “publicly-declared practice of sharing its GPS tracking data with the MPD,” id. at 40, [2] the right of law enforcement agencies to share lawfully acquired information under the Fourth Amendment, id. at 45-46, and [3] MPD’s limited use of the data, which focused solely on whether any monitored supervisee had been present during a particular robbery, id. at 47-48. 
• Of Note: Recognizing the sensitive nature of location information and the potential for abuse from unfettered police access to that data, the court has expressly limited its holding to situations where police engage in a narrowly tailored search to see whether any monitored probationer was present at the scene of a crime. Id. at 51-52.

*Andrews v. D.C., 17-CT-523 (decided August 15, 2019) – Warrant Affidavit 

• Holding 1: A warrant affidavit failed to establish probable cause to search appellant’s home because it targeted a different person, Andre Becton, and failed to establish any valid connection between Becton and appellant’s address: 3518 6th Street SE #6. The affidavit asserted, repeatedly, that Becton lived somewhere else (3815 6th Street SE #6) and, while this mismatch might be the result of a typographical error, a court “cannot properly uphold the Fourth Amendment if [it] simply assume[s] that [a warrant] affidavit contain[s] a harmless transposition of numbers.” Slip Op. at 7. Moreover, the affidavit was too conclusory to establish probable cause because it referred to “muliple databases” and “corroborating information from several sworn MPD members” without explaining “what the ‘multiple databases’ were, what the ‘corroborating information’ was, who provided it, how or when it originated, or how it was obtained.” Id. at 7-8. 
• Holding 2: The trial court erred in denying appellant’s motion to suppress evidence obtained pursuant to the invalid search warrant for his home because the affidavit “was so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Id. at 9 (quotation marks and citation omitted).

McGlenn v. U.S., 18-CF-103 (decided July 11, 2019) – Community-Caretaking Doctrine

• Holding: The “community-caretaking doctrine” applies to “temporary seizures of persons who are out in public” and justified seizing appellant pending the arrival of an ambulance, where appellant’s “frightening” behavior caused his mother “to run to a neighbor’s house [to] call the police”; “there was reason to believe [appellant] was under the influence of PCP, a drug known to cause sudden bursts of aggressive and violent behavior”; appellant “physically resisted” officers upon their arrival; and appellant “showed signs of [anger,] incoherence[,] and disorientation.” Slip Op. at 12, 17.
• Of Note: The DCCA “express[es] no view as to the applicability of the community-caretaking doctrine to searches of a home.” Id. at 12.

Hooks v. U.S., 17-CF-1382 (decided May 30, 2019) – Seizure/Reasonable Articulable Suspicion

• Holding 1: Appellant, who was sitting in a lawn chair on a walkway in front of an apartment building, was “seized” for Fourth Amendment purposes when, after driving past the building, four uniformed officers stopped their car, reversed, got out of the car, walked directly up to appellant, and told him to “get up.” Slip Op. at 9. 
• Holding 2: Police lacked reasonable articulable suspicion to believe appellant had committed the crime of “crowding, obstructing, or incommoding” a sidewalk or entryway because his conduct could not have conceivably met the second requirement of the statute—that he resume blocking the walkway after being told to disperse. Id. at 13-16.

Posey v. U.S., 16-CF-1126 (decided February 21, 2019) – Headlong Flight/Reasonable Articulable Suspicion

• Holding: Appellant’s unprovoked flight from uniformed officers in a high crime area did not provide reasonable articulable suspicion to stop him for committing a robbery reported in that area, where (a) the officers had only a vague suspect descriptions, (b) the record did not show precisely when the robbery occurred, and (c) nothing about appellant or his group’s conduct before or during the flight suggested involvement in the robbery—“[A] nondescript individual distinguishing himself from an equally nondescript crowd by running away from officers unprovoked does not, without more, provide a reasonable basis for suspecting that individual of being involved in criminal activity and subjecting him or her to an intrusive stop and police search.” Slip Op. at 14.

*Added October 15, 2019
**Added December 9, 2019

FIFTH AMENDMENT/STATEMENTS AND INTERROGATION

Walker v. U.S., 14-CF-839 (decided February 21, 2019) –

• Holding 1: Appellants’ claim that an inculpatory witness statement was coerced, involuntary, and unreliable, raised for the first time in appellants’ motions for new trial, was forfeited and subject to plain error review on appeal because appellants failed to raise it in a pretrial motion to suppress. Slip Op. at 11-14.
• Holding 2: The trial court did not plainly err by admitting a witness statement later ruled by the DCCA to have been coerced by police because neither the Supreme Court nor the DCCA had recognized the defendant’s right to exclude a statement coerced from a witness, as opposed the defendant him- or herself.  Id. at 14-16. Even assuming there was a right to exclude coerced witness statements, the court would not find that it had been violated on the record presented. Id. at 16.
• Holding 3: Neither the DCCA opinion finding coercion nor the evidence that the statement was coerced qualified as “newly discovered evidence” under Rule 33. Id. at 16 n.5.

Johnson v. U.S., 17-CF-1117 (decided May 9, 2019) –

• Holding: Appellant was not in “custody” for Miranda purposes where detectives questioned her at her home for about half an hour; the tone of the interview was conversational, not menacing; detectives never threatened arrest; appellant was neither handcuffed nor physically restrained; detectives’ weapons were concealed; and neither detective was standing guard at the door. Slip Op. at 6-7.

SIXTH AMENDMENT/CONFRONTATION CLAUSE

Green v. U.S., 16-CM-187 (June 13, 2019) – In a simple assault case, where appellant cross-examined his complainant using parts of her 911 call, none of which was admitted into evidence, and the government responded on re-direct by moving the entire 911 call into evidence –

• Holding 1: The trial court erred and violated the Confrontation Clause by denying appellant the opportunity to recross-examine the complainant on new, material information contained in the call. Slip Op. at 5-10
• Holding 2: The trial court’s error was not harmless beyond a reasonable doubt where it asked, specifically to hear 911 call and it helped bolster the complainant’s credibility in a case that came down to her credibility. Id. at 10-12.
• Of Note: The 911 call was not admissible under the rule of completeness because no part of it had been admitted into evidence up to that point. Id. at 10 n.12. 

- WCC

Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

Holdings:
1. In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.


Of Note: 
- The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.

Criminal Prohibition on Negligent Stalking Withstands Constitutional Challenge despite Potential Ambiguity

Beachum v. United States (decided July 31, 2018; published December 20, 2018)

Players: Associate Judges Fisher, Beckwith, and McLeese. Per curiam opinion. Vincent A. Jankoski for Mr. Beachum. Trial Judge: Patricia A. Broderick.

Facts: Following a bench trial, Mr. Beachum was convicted of attempted stalking in violation of D.C. Code § 22-3133(a)(3), which makes it unlawful:

to purposefully engage in a course of conduct directed at a specific individual . . . [t]hat [one] should have known would cause a reasonable person in the individual’s circumstances to: (A) Fear for his or her safety or the safety or another; (B) Feel seriously alarmed, disturbed, or frightened; or (C) Suffer emotional distress. 

Evidence at trial showed that between 2016 and 2017, Mr. Beachum made a series of escalating advances toward the complainant, Ms. Telfer, despite her attempts to ignore or rebuff him. He first encountered her while visiting one of her neighbors. Thereafter, he appeared on her block regularly and tried to engage her in conversation. Though she rebuffed him, he persisted. Once, he asked to speak to her while sliding his hand down his pants. Even after the neighbor moved, Mr. Beachum continued to appear on the block almost daily and to approach Ms. Telfer.

In January 2017, Mr. Beachum approached Ms. Telfer as she was arriving home and said that he wanted to speak with her. He was “extremely more aggressive” than in previous encounters and persisted, even as she tried to ignore him and unlock her door. When she got inside, Ms. Telfer called the police. While she waited for them to arrive, Mr. Beachum went to his van, wrote something down, came back, and then rang the doorbell and banged on the door for about one minute. Mr. Beachum left before the police arrived. Ms. Telfer later found a note stating: “It’s not about being your friend, it’s about being your best friend. Can you? Hi.”

Issue: Whether D.C. Code § 22-3133(a)(3) is unconstitutional because it permits conviction based on the negligent failure to realize that one’s conduct would cause fear, serious alarm, or emotional distress?

Holding: No. Although the DCCA and the U.S. Supreme Court have held that criminal threats convictions require a more culpable state of mind than negligence, see Elonis v. United States, 135 S. Ct. 2001 (2015); Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), these cases did not ban all convictions based on negligence. Rather, they presented an issue of statutory interpretation—whether statutes must be construed to require a more culpable state of mind than negligence, in the absence of a clear statement of legislative intent to the contrary. Here, by contrast, the legislature gave a clear statement of its intent to enact a ban on negligent stalking.

The statute provides adequate notice of what it prohibits by requiring proof that the person convicted had reason to believe his conduct would engender, fear, serious alarm, or emotional distress. The argument that “diverse cultural norms make it impossible to know what conduct might engender” such a response has no merit here, where, despite Ms. Telfer’s repeated efforts to rebuff him, Mr. Beachum made escalating advances, ultimately ringing her doorbell and banging on her door for about a minute.

Of Note: 
The Court does not rule out the merit of a challenge to D.C. Code § 22-3133(a)(3) in a different case, based on the argument that “diverse cultural norms make it impossible to know what conduct might engender fear, serious alarm, or emotional distress in a reasonable person.” Slip Op. at 7-8. WC.

Read the full opinion here.

DCCA: Social security numbers may fall within Miranda’s “routine booking exception”; the government need not prove an unregistered firearm is not antique unless the record suggests that it is.

(Image of Social Security Cards from Wikimedia Commons)

Toler v. United States (decided December 20, 2018)

Players: Associate Judges Beckwith and McLeese, Senior Judge Steadman. Opinion by Judge Steadman. Ian A. Willams for Mr. Toler. Trial Judge: Hon. Maribeth Raffinan.

Facts: While executing a search warrant on Mr. Toler’s apartment, members of the Gun Recovery Unit handcuffed him and, without obtaining a waiver of his Miranda rights, asked for his name, date of birth, phone number, and social security number. Mr. Toler provided this information and volunteered that he was a former U.S. Marine. During their search, officers seized three firearms, assorted ammunition, and Mr. Toler’s apartment lease. An indictment later charged him with, inter alia, possession of an unregistered firearm and unlawful possession of a firearm by a person previously convicted of a crime punishable by more than one year of imprisonment. A jury found Toler guilty of the latter offense, based on his un-Mirandized statements to police and a certified copy of a U.S. Marine Corps court martial conviction, stating that someone with the name and social security number that Toler provided to police had been convicted of a crime punishable by more than one year imprisonment. The same name and social security number also appeared on the lease seized from Mr. Toler’s apartment.

Issue 1: Whether the social security number provided by Mr. Toler was subject to suppression absent a valid waiver of his Miranda rights?

Holding: No. Miranda only applies to interrogation, which includes express questioning and words or actions reasonably likely to elicit an incriminating response but excludes “routine booking questions,” such as those related to identity. Like name and date of birth, social security number is “a routine means of identifying oneself.” Slip Op. at 8. Since questioning is allowed as to these other identifiers, “it is difficult to see any meaningful distinction that would generally prohibit a request for a social security number.” Id. at 8-9. While such questions may trigger Miranda if they are “reasonably likely to elicit an incriminating response,” the question here does not fall into that category. Id. at 9. That the question was asked on the scene rather than at booking, without more, does not transform it into interrogation. See Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc)

Of Note: An exception to the general rule that questions about suspect identity are not “reasonably likely to elicit an incriminating response” may exist where the information is relevant to an element of a crime other than identity, e.g., the suspect’s date of birth in a statutory rape case. Slip Op. at 8-9 (citing State v. Locklear, 531 S.E.2d 853 (N.C. Ct. App. 2000)).

Issue 2: Whether Mr. Toler’s conviction for possessing an unregistered firearm required proof that the firearm was not “antique?”

Holding: No. Although the D.C. firearm registration requirement excludes firearms manufactured in or before 1898, antiquity is an affirmative defense that the government need only disprove when there is some evidence in the record to support it. Courts have uniformly interpreted the D.C. statute’s federal counterpart in the same manner. That the registration requirement excludes four other firearm categories further supports that the government need not disprove each one during its case in chief. To do so would be impracticable. As there was no evidence that the firearms seized from Mr. Toler’s apartment were antique, the government had no burden to prove otherwise. WC

Read the full opinion here.

To be punishable under D.C. Code § 22-1321(a)(1), "disorderly conduct" must cause actual, subjective fear of harm.

 Edvard Munch, The Scream, 1893, National Gallery Oslo

Solon v. United States (decided Nov. 29, 2018)

Players: Associate Judges Fisher, Thompson, and Beckwith. Opinion by Judge Thompson. Thomas C. Paynter for Ms. Solon. Trial Judge: Juliet J. McKenna.

Facts: A judge found Ms. Solon guilty of disorderly conduct in violation of D.C. Code § 22-1321(a)(1), which makes it a crime “to intentionally or recklessly act in such a manner to cause another person to be in reasonable fear that a person or property in a person’s immediate possession is likely to be harmed or taken.” Ms. Solon’s charges arose out of her interaction with climate march participants in April 2017. Holding a “TRUMP: Make America Great Again” sign, Ms. Solon tried to push her way between marchers, who were standing arm-in-arm. When she was not pushing, Ms. Solon walked from side to side, while the marchers looked on impassively. Others laughed or took photos of Solon. At one point, someone appeared to bump into her on purpose. March staff testified that her behavior was “scary” and “aggressive” but could not identify any objective on her part beyond getting between the marchers. Ms. Solon told an officer at the scene that her aim was to impede the march.

The trial court found Ms. Solon guilty of violating D.C. Code § 22-1321(a)(1) by “ramming her body into individuals who . . . were standing peacefully, expressing their views[.]” In so doing, the court rejected Ms. Solon’s argument that § 22-1321(a)(1) required the victim’s actual, subjective fear of injury. The court found that although the government had not proven actual, subjective fear, conduct sufficient to create objectively reasonable fear of immediate bodily harm would suffice for conviction. In the court’s view, Ms. Solon’s “demeanor,” “agitation,” and “volatility” met this standard.

Issue 1: Whether a conviction for disorderly conduct under D.C. Code § 22-1321(a)(1) requires proof that the charged conduct caused actual, subjective fear of harm?

Holding: Yes. On its face, D.C. Code § 22-1321(a)(1) appears to require proof that the perpetrator’s conduct “cause[d] [someone] to be in . . . fear.” Legislative history confirms this interpretation. When a subcommittee proposed that § 22-1321(a)(1)’s general prohibition on intentional or reckless conduct made a separate anti-jostling provision of the statute redundant, the Judiciary Committee disagreed, noting § 22-1321(a)(1)’s distinct requirement for the victim’s actual, subjective fear of harm. “In light of th[is] legislative history, . . . § 22-1321(a)(1) requires proof that the defendant’s charged conduct placed another person in fear of harm to his or her person.”

Issue 2: Whether Ms. Solon’s conviction may stand?

Holding: No. The trial court’s verdict relied solely on its erroneous determination that the government did not have to prove that Ms. Solon’s conduct caused actual fear among the demonstrators. Although, ordinarily, the Court would remand for a correct application of the statute, the Court will not do so here because the trial court already found that Ms. Solon’s behavior did not place anyone in fear of harm. This finding was neither plainly wrong nor without evidence to support it— none of the marchers manifested any fear of Ms. Solon, who by herself; rather, some were laughing; police were nearby; and witnesses confirmed that she appeared to lack any objective beyond getting in between the marchers. WC

Read the full opinion here.

Show me the note! Defendants have a right to see all jury notes; judges cannot respond blindly to jury notes in the name of shielding themselves from the jury’s numerical split

Coley v. United States (decided November 15, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion for the Court by Judge Glickman. Deborah A. Persico for Coley.  PDS as amicus curiae. Trial Judge: Michael Ryan.

Facts: Appellant was tried for assault with intent to kill and related offenses.  The defense was misidentification. On the third day of deliberations, the jury sent a note that it had reached a unanimous verdict. However, when the third juror was polled about whether she agreed with the verdict, she responded, “I can’t.” Judge Ryan stopped the poll and instructed the jury to continue deliberating. Twenty-five minutes later, Judge Ryan informed the parties that the jury had sent a note.  However, he had not read the note because his clerk had taken the note to Judge Canan so that Judge Ryan would not learn improper information such as a numerical split. The parties were not shown the note. 

Judge Canan reviewed the note, determined that it contained information Judge Ryan should not see, and advised Judge Ryan to remind the jury not to reveal its voting split. Judge Ryan proposed also telling the jury that he had not read the note, did not want to know who sent it, and that the jury should resume deliberations. Defense counsel moved for a mistrial. In the alternative, he requested the bracketed portion of Instruction 2.603, known as a Crowder instruction, to reduce the risk of coercion by instructing the jurors that they are not required to surrender their honest convictions. Defense counsel maintained that the note likely revealed an 11:1 split and that the dissenter was likely the juror who dissented in the poll. He argued that in the absence of a Crowder instruction, the court’s directive would signal to the lone holdout that she was required agree everyone else. Judge Ryan denied the request for a Crowder instruction on the ground that there was insufficient evidence of a likelihood of coercion and that defense counsel’s suggestion was speculative.

One hour later, the jury returned a unanimous verdict. The parties subsequently learned that the note was written by the poll dissenter and read, “I don’t feel that he did it.” Defense counsel moved for a new trial on the ground that the verdict was likely tainted by coercion. Judge Ryan denied to motion. 

Issue 1: Did the trial judge err in failing to disclose to defense counsel the contents of a jury note which it believed contained the numerical divide of the jury?

Holding: Yes.  The trial court “plainly erred” by withholding the juror’s note from appellant.  This was a “clear violation” of the court’s prior cases interpreting a defendant’s right to be present at every stage of the trial. The court explained that even if the trial judge needed to be shielded from who wrote the note and what it said, appellant should have been allowed to argue the significance of the note to the consulting judge, who was in effect a second decision maker in the case.

Issue 2: Did the trial judge abuse his discretion when he denied the defense request for a Crowder instruction, where he was ignorant of the jury note’s content and author, and the consulting judge was ignorant of context such as the prior poll breakdown? 

Holding: Yes. The court held that the trial judge lacked a firm factual foundation for his ruling because he was ignorant of material facts necessary to evaluate the likelihood of juror coercion. The two-judge procedure, while well-intentioned, was “flawed” because neither judge had sufficient information to evaluate the coercive potential of the situation or fashion an appropriate response. Judge Ryan did not know what the note said, and Judge Canan lacked contextual information, such as knowledge of the poll breakdown, necessary to advise Judge Ryan on how to respond. The court suggested that this problem could have been remedied if the parties had seen the note and been allowed to argue its significance to Judge Canan.     

Issue 3: Was there a substantial likelihood of a coerced verdict requiring a new trial?

Holding:  Yes.  The juror’s note both clarified that she had intended to publicly dissent from the verdict during the poll and revealed the settled nature of her belief. Because the follow-up note was from the poll dissenter alone and spoke only of her belief in innocence, it was a strong indication of her isolation in a jury that was 11:1 for conviction.  Unlike the typical poll breakdown where the split is unknown, after the note, the risk of coercion was sufficiently great to require an affirmative effort by the judge, such as a Crowder instruction, to dispel the risk that an instruction to continue deliberating would culminate in a coerced verdict.       

Of Note: 
• The Court’s opinion suggests that trial courts may continue to utilize a two-judge procedure to insulate the trial judge from knowledge of the jury’s division. However, counsel must be allowed to see the note, address the reviewing judge, and argue the note’s significance to the reviewing judge so that he or she can make an informed recommendation.  SS

Read the full opinion here.