Thursday, August 27, 2015

Brief Fist Fight on a Crowded Bus Was a Simple Assault, Not an Aggravated Assault or an Assault with Significant Bodily Injury

In re D.P. (decided August 13, 2015)

Players: Judges Fisher and Easterly, and Senior Judge Farrell. Opinion by Judge Easterly. Aaron Marr Page and Randy Evan McDonald for D.P. Trial Judge: Florence Pan.

Facts: Sixteen-year-old D.P. and her two friends started a fight with M.G. on a Metrobus on the way home from school. Blows were exchanged, and at the very end of the fight, which lasted only fourteen seconds, M.G. hit her head on a pole and briefly lost consciousness for “maybe a minute, maybe less.” M.G. was examined by emergency medical technicians who determined that she did not need to go to the hospital. No medical evidence was presented about M.G.’s injuries, and M.G. testified that she had “minor headaches” for “two/three days” after the incident. In the ensuing delinquency case, D.P. was adjudicated “involved” in an aggravated assault and an assault with significant bodily injury.

Issue 1: Was the evidence sufficient to find D.P. guilty of aggravated assault?

Holding 1: The evidence was insufficient to find D.P. guilty of aggravated assault because the evidence did not support a reasonable inference that D.P. had the requisite mental state, that is, she did not “manifest extreme indifference to human life.” The Court reiterates that the mental state required is “substantively indistinguishable” from the minimum state of mind required for second-degree murder, and held that the evidence was insufficient to prove that D.P. possessed that “gross recklessness/depraved heart malice.” In so holding, the Court noted that D.P. and her friends had no weapons, the assault was very brief and occurred in a crowded public place where bystanders could intervene, and the circumstances suggested that their intent was more to intimidate M.G. than to injure her. Accordingly, D.P.’s actions did not manifest extreme indifference to human life.

D.P. had also argued on appeal that M.G.’s injuries did not constitute “serious bodily injury” required for an aggravated assault conviction, but the Court declined to rule on that argument in light of its holding that the mens rea was not satisfied. The Court said that it is still an “open question” as to whether the brief loss of consciousness suffered by M.G., which required no medical treatment, would be enough to meet the definition of “serious bodily injury.”

Issue 2: Was the evidence sufficient to find D.P. guilty of assault with significant bodily injury?

Holding 2: The evidence was insufficient to find D.P. guilty of assault with significant bodily injury because M.G.’s injuries did not “require hospitalization or immediate medical attention.” The Court held that M.G.’s injuries were analogous to those suffered by the complainant in Quintanilla v. U.S., 62 A.3d 1261 (D.C. 2013), and that the Court was bound by the holding in that case. In both Quintanilla and D.P.’s case, the complainant had been examined by emergency personnel, and experienced soreness/pain for some days after the incident, but did not seek or require any further medical treatment. As such, M.G.’s injuries did not constitute “significant bodily injury” and the Court held the evidence insufficient to find D.P. guilty of assault with significant bodily injury. SN

Wednesday, August 19, 2015

Move to dismiss if you think your claim is jeopardy-barred

Stanley Moghalu v. United States (decided August 6, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Judge Fisher.  Rahkel Bouchet for Mr. Moghalu.  Trial judge: Patricia A. Broderick. 

Facts:  Mr. Moghalu was tried three times for unlawful possession of a firearm and carrying a pistol without a license.  The first two trials ended in mistrials.  At the second trial, over which Judge Henry Greene presided, “[o]ver appellant’s adamant objection, the trial court declined to given an anti-deadlock instruction and declared a mistrial.”  Mr. Moghalu was convicted at the third trial, Judge Broderick presiding. 

Issue:  Appellant argued that Judge Greene abused his discretion by declaring a mistrial when there was no manifest necessity to do so and asserted that his third trial was barred by the Double Jeopardy Clause.

Held:  The Court holds that the double jeopardy claim was waived because appellant had not raised the “double jeopardy defense” prior to the third trial, before Judge Broderick.  It bases its ruling on cases that establish that double jeopardy claims can be waived if not raised at trial, and notes that this waiver need not be a Johnson v. Zerbst, “knowing, voluntary and intelligent” waiver.  The Court also states that it “need not decide” whether appellant may obtain relief under the plain error doctrine, because even if there were a colorable claim of double jeopardy (something the Court finds “highly doubtful”), it would not have been “clear or obvious” to Judge Broderick. 

Of Note:

  • The upshot here is that you must file a motion to dismiss on double jeopardy grounds if you have a claim that a mistrial was granted over objection when there was no manifest necessity for doing so at a prior trial.  (Note that a denial of such a motion is appealable pre-trial, if you are so inclined.)

  • The analysis in the opinion is questionable, because an objection to a mistrial on the ground that there was no manifest necessity is precisely the same claim as an objection to a retrial on double jeopardy grounds because a mistrial was granted when there was no manifest necessity.  And some of the Court’s opinion seems to turn on the fact that the judge at the third trial was different than the judge at the second -- suggesting that a lawyer needs to give the new judge a chance to pass on the question.  It would seem that the “trial court” is all one, however, and that the question whether there was manifest necessity justifying a mistrial was litigated and resolved at the second trial; indeed, the law of the case doctrine might even have militated against a new judge revisiting the same claim prior to the third trial.  In any event, the law is now the law:  file a motion to dismiss on double jeopardy grounds if this happens to you and you want the issue to be preserved for appeal.  JF

Friday, August 14, 2015

Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:
  • In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    
  • The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Tuesday, August 11, 2015

Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:
  • The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.
  • The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT

Monday, August 10, 2015

The “Bias-Related Crime” Enhancement Can Apply to Any Crime on the Books

Girma Aboye v. United States (decided August 6, 2015)

Players: Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation. Opinion by Judge Glickman. Fletcher P. Thompson for Mr. Aboye. Trial judge: Robert E. Morin.

Facts: Mr. Aboye and his dog, Tarzan, had a tense relationship with the complainants, a gay couple. On one occasion when the couple approached Tarzan with their own dog, Mr. Aboye told them Tarzan “doesn’t like homosexuals.” A few months later, during a verbal exchange with the couple, Mr. Aboye “heatedly yelled, ‘Shut up you faggots[;] I’m going to kill you with my dog. I’m going to have my dog kill you.’” The complainants reported that Tarzan, a brindled pit bull mix, was not acting aggressively, and the officer who later arrested Mr. Aboye testified that he found Tarzan to be friendly and nonthreatening. After a bench trial, Judge Morin found Mr. Aboye guilty of bias-related threats to do bodily harm.

Issue 1: The sentencing enhancement for “bias-related crime” applies to “a designated act that demonstrates an accused’s prejudice based on the actual or perceived . . . sexual orientation . . . of a victim of the subject designated act.” D.C. Code § 22-3701(1). A “designated act” is defined as “a criminal act, including arson, assault, burglary, [and twenty-two other enumerated crimes].” D.C. Code §22-3701(2). Can the enhancement apply to threats, even though threats is not on the list of “designated act[s]”?

Holding 1: Yes. Elsewhere, the D.C. Code provides that “unless specifically provided otherwise: . . . . The word[] . . . ‘including’ mean[s] . . . ‘including, but not limited to.’” D.C. Code § 1-301.45(10). Thus, the plain language of the bias-related crimes law — like its statutory context and legislative history — indicates that the list of “designated act[s]” is not exclusive. The court held that “the term ‘designated act’ in D.C. Code § 22-3701(2) means any criminal act recognized under D.C. law.”

Issue 2: Was there sufficient evidence to prove the second element of threats, that Mr. Aboye’s words could convey fear of serious bodily harm or injury to the ordinary hearer?

Holding 2: Yes, in spite of Mr. Aboye’s argument that the evidence showed Tarzan to be a real pussycat, he was “no miniature lap dog,” and had already been described to the complainants as “hostile to homosexuals.” In any event, “even if Tarzan was friendly and tame, appellant’s death threat was not.” FT

Friday, August 7, 2015

Get Your Hands Out of Your Pants! . . . Or The Police Can Stop and Frisk You

Edward Morgan, Jr. v. United States (decided August 6, 2015)

Players: Judges Thompson, Easterly, and McLeese. Opinion by Judge McLeese. Dissent by Judge Easterly. Stephanie L. Johnson for Mr. Morgan. Trial judge: J. Michael Ryan.

Facts: Police received a phone tip about potential drug activity from a caller who had just seen a man on a red bicycle exchange small objects with another man. The tipster said that during the transaction, the man on the bicycle “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in.” Shortly thereafter, the tipster called again, this time reporting that the man on the bicycle was at a particular intersection. Police arrived at the intersection to find Mr. Morgan, who had a red bicycle and fit the physical description provided by the tipster. They initiated a Terry stop, which led to the discovery of cocaine in Mr. Morgan’s waistband and a conviction for possession of same.

Issue: Did the police have reasonable articulable suspicion (RAS) to stop Mr. Morgan?

Holding: Yes. The majority held that “a person’s removal and replacement of an object from inside the waistband of the back of his pants during an exchange will typically create reasonable articulable suspicion to believe the suspect was involved in criminal wrongdoing,” and it was “natural[]” to interpret the tip about Mr. Morgan reaching into “the back of [his] pants” to mean he reached into his waistband. The tipster thus gave police reason to believe the person he described was involved in unlawful activity, and Mr. Morgan sufficiently matched the suspect's physical description to be stopped.

Of Note:
  • Despite the broad language of the majority’s ruling that reaching into a waistband gives rise to RAS, the modifying phrase “during an exchange” is an important limitation. The majority distinguished a New Jersey case that found no RAS arose from the suspect placing a paper bag inside his pants on grounds that “there were no other indications of a drug transaction, whereas the present case involves an exchange of small objects out on a street.” (emphasis added)
  • Judge Easterly dissented, highlighting the rule that when a police officer does not observe suspicious activity first-hand, RAS can only arise if the tipster gives a specific description of suspicious activity rather than reporting a “hunch.” She concluded that the description of Mr. Morgan reaching into “the back of [his] pants” was vague and could well have referred to all manner of innocent activity, such as reaching into a back pocket for a wallet. The police ought to have asked for more detail, and the prosecution ought to have presented more detail, to develop and show RAS. FT

Monday, August 3, 2015

Stalking Gets You Nowhere

Ronald L. Atkinson v. United States (decided July 30, 2015).

Players: Associate Judges Beckwith and McLeese, Senior Judge Nebeker.  Opinion by Judge Nebeker.  Judith L. Wheat and Marlon C. Griffith for Mr. Atkinson.  Trial Judge:  Robert I. Richter

Facts: This is a case of love gone wrong.  Ronald Atkinson and the complaining witness, Ms. Roebuck, had an intimate relationship that subsequently soured.  Ms. Roebuck moved on, Mr. Atkinson did not.  Mr. Atkinson repeatedly attempted to contact Ms. Roebuck even though she wanted nothing to do with him; she eventually obtained a civil protection order against him.  Contrary to the order, Mr. Atkinson did not stay away.  As a result, he was charged with and convicted of one count of stalking and six counts of violating the terms of the CPO.  

Issue:  Did the trial court err when it merged alternative theories of liability with respect to the stalking charge?  

Holding: Yes, but the error was harmless.  At the government’s urging, the trial court instructed the jury that to be guilty of stalking, it needs to find that Mr. Atkinson “knew or should have known that his conduct would cause Halima Roebuck or a reasonable person in Halima Roebuck’s circumstances” to fear for her safety.  This was error because the inquiry for stalking is objective, considering how a reasonable person in the complainant’s shoes would feel.  The instruction here “impermissibly reduced the government’s burden to convict by allowing the jury to find appellant guilty if he caused Ms. Roebuck to subjectively but unreasonably experience the enumerated emotional harm.”  However, applying the Chapman standard of harmless error, the court found that because the jury was presented with “overwhelming evidence” of Mr. Atkinson’s “objectively frightening behavior,” his conviction must be affirmed.  DH