Monday, October 20, 2014

Multiple Issues, Multiple Gunshots, Multiple ADWs

Charles E. Mobley, Dante Carpenter, and Gerald A. Thompkins v. United States, Nos. 09-CF-627, 12-CO-621, 09-CF-629, 09-CF-651, 09-CF-652, 09-CF-679, 12-CO-656, 12-CO-657 (October 16, 2014)

Players:  Chief Judge Washington, Associate Judge Thompson, Senior Judge Reid.  Opinion by Judge Reid.  Jennifer Wicks for Mr. Mobley.  PDS for Mr. Carpenter.  Judith A. Lovelace for Mr. Thompkins.  Trial Judge:  Harold L. Cushenberry, Jr. 

Facts:   A group of four men opened fire at someone they were “beefing” with outside a nightclub.  Four police officers in four separate marked police cars happened to be parked outside the club and were “in the line of fire,” though they were not hit.  The defendants were charged with multiple counts of assault on a police officer while armed (APOWA) and assault with a dangerous weapon (ADW) with respect to both their intended target and the officers who happened to be around. 

Issue:  Although the opinion addresses at least eight different legal issues, the most significant is the following one:  Do the convictions for ADW of two of the police officers merge with the conviction for ADW of the intended target because there was insufficient evidence that the defendants knew that the police officers were there?

Held:  No.  The ADW convictions do not merge because there were multiple shots fired and there was enough evidence that the defendants should have known, based largely on the presence of the four police cars and their location relative to the club, that the officers were in the line of fire.

·         Despite the many legal issues addressed in the opinion, the most interesting thing about this case is that the apparent target of the shooting, Ralph Anwan Glover (pictured above), played Slim Charles in the HBO television series The Wire.

Friday, October 10, 2014

Break out the bolt cutters: the DCCA holds that bolt cutters are not an "instrument . . . for picking locks" that may be punished under D.C. Code § 22-2501.

In re J.W., No. 12-FS-1771 (October 9, 2014)

Players:  Associate Judges Fisher and Beckwith, Senior Judge Farrell.  Opinion by Judge Fisher.  Trial Judge:  Robert R. Rigsby. 

Facts:   J.W. was adjudicated delinquent of the offense of possessing the implements of a crime, D.C. Code § 22-2501 (2012 Rep.).  He was arrested after being observed by police officers examining a scooter that was chained to a fence.  At the time of the incident – which took place at 3:45 a.m.  in the middle of the summer – he was wearing black ski pants, had a black ski mask perched on the top of his head, and was carrying two-foot-long bolt cutter.

Issue:  Did possession of the bolt cutter under those circumstances violate D.C. Code § 22-2501 (2012 Rep.), which criminalizes the possession of “any instrument, tool, or implement for picking locks or pockets, with the intent to use such instrument, tool, or implement to commit a crime.” 

Held:  No.  “Picking a lock” in this context means “the opening of the lock without the use of the original or duplicate keys and without damage to the lock.”  Therefore the possession of a bolt cutter – a tool more likely to be used to sever the chain or, perhaps, to break the lock – did not violated the statute.  JF.

Wednesday, October 8, 2014

Tequila or beer? The DCCA’s musings on drinking habits lead to different outcomes in two cases where cars were searched incident to POCA arrests.

United States v. William A. Nash, Jr. and David Lewis, Nos. 13-CO-1299 and 13-CO-1456 (decided September 25, 2014).

Players:  Associate Judges Fisher and McLeese, Senior Judge Pryor.  Opinion by Judge McLeese.  PDS for Mr. Lewis.  Cecily E. Baskir for Mr. Nash.  Trial Judge Robert I. Richter.

Facts:  In these two unrelated cases, the police conducted car searches after observing individuals possessing open containers of alcohol (POCA).  The trial court found both car searches illegal and suppressed the guns and other contraband that police found while searching the cars.  The government sought interlocutory review of those rulings.  On appeal, the DCCA upheld the suppression ruling in Mr. Nash’s case but reversed in Mr. Lewis’s case.  In both cases, the defendants did not appear to police to be intoxicated.  The relevant differences are as follows:

  • Officer Parrish saw an open can of Four Loko in the center console.  He confirmed by smell that the can contained alcohol and observed that it was less than half full.  Mr. Nash was placed under arrest for POCA.  Officer Parrish then searched the car for additional alcohol.  During the search, he found a handgun in a clear box on the front passenger seat and ammunition in the trunk. 
  • Police officers began following Mr. Lewis’s car when they observed that one headlight was not working.  They pulled the car over after determining that Mr. Lewis had a suspended license.  During the stop, Officer Alto observed an open, half-full bottle of Patron tequila in the center console cup holder.  Mr. Lewis’s passenger said that the bottle was hers.  Police arrested Mr. Lewis for driving on a suspended license.  They then searched the car for additional open containers of alcohol because, according to Officer Alto, “the majority of times when there is a tequila or liquor type of beverage in a vehicle, they’ll be drinking through cups.”  Another officer agreed that “people rarely drink directly out of Patron bottles and instead use cups.”  Police found a handgun and ammunition in a bag in the back seat. 

Issue #1: In what circumstances may police conduct a car search incident to an arrest for POCA?

Holding:  A car search incident to an arrest for POCA is illegal unless the police can articulate specific reasons to believe that they will uncover additional evidence of POCA during the search. 

Issue #2 (from Mr. Lewis’s case only): May the police conduct a search incident to arrest for POCA before effectuating the arrest?

Holding: Yes.  The police had probable cause to arrest Mr. Lewis’s passenger for POCA, so it is immaterial that they searched the car before actually arresting her.

Of Note: 

  • In Mr. Nash’s case, there was no evidence that the police officers had any particular reason to think that additional cans of Four Loko or other evidence of POCA would be in the car.  In contrast, in Mr. Lewis’s case, police testified that they had reason to believe they would uncover evidence of POCA during the search because of the characteristics of tequila drinkers and because the tequila was found in the center console of the car: According to the officers, people usually use cups to drink tequila, so the police had reason to believe they would find cups containing tequila once they observed the open Patron bottle.  In addition, the court reasoned that the location of the bottle in the center console could lead police officers to reasonably conclude that the occupants were drinking the liquor.  So, try to distinguish your case if it involves liquor located somewhere in the car other than the center console.

  • Beware the DCCA’s other holding in Lewis – that the search of the car was “incident” to Ms. Gibbs’ arrest even though she had not yet been arrested – as it expands the search incident to arrest exception to the warrant requirement.  Under this reasoning, as long as the police had probable cause before the search and ultimately do arrest the suspect, it doesn’t matter whether the search is actually incident to an arrest.  NG

Tuesday, October 7, 2014

Laumer lives to fight another day, but stay tuned . . . en banc review may be on the horizon

William McCorkle and Andre Clinkscale v. United States, Nos. 11-CF-1667 and 11-CF-1668 (decided September 25, 2014).

Players:  Associate Judge Fisher, Chief Judge Washington, and Senior Judge Ruiz.  Opinion by Judge Fisher.  PDS for Mr. McCorkle.  Andrew R. Szekely for Mr. Clinkscale.  Trial Judge Lynn Leibovitz.

Facts:  This triple homicide stemmed from an altercation after Mr. McCorkle cut in front of the decedent in a line at a gas station.  Mr. McCorkle testified that as he fled the scene, he saw Trey Joyner, a friend of his, firing into the decedent’s car.  Mr. Joyner had died by the time of the trial.  At trial, Mr. McCorkle and Mr. Clinkscale sought to admit the testimony of Tywon Hager, who was prepared to testify that he had heard Mr. Joyner admitting, against his penal interest, to participating in the killings. The defendants sought to admit this hearsay statement as a statement against penal interest, so the trial court analyzed its admissibility under Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc).  

The first prong of the Laumer test requires the trial judge to assess the credibility of the witness to determine whether the out-of-court declarant in fact made the statement.  Noting Mr. Hager’s “significant” record of impeachable convictions, close relationship with the accused, and failure to mention the statement by Mr. Joyner in an earlier interview with police, the trial court ruled that the proffered hearsay statement was never made, and that Mr. Hager’s testimony on this point was therefore inadmissible.  Slip op. at 13 & n.6. 

Issue: Whether the first prong of Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc), which requires a trial court to assess the veracity of a witness who has been offered to repeat an out-of-court statement against penal interest, unconstitutionally invades the province of the jury and has been implicitly overruled.

Holding: No. 

Of Note:

  • While Judge Fisher explained in a concurring opinion that he continues to believe the Laumer approach correctly allows the trial court to exclude unreliable evidence, Senior Judge Washington and Chief Judge Washington wrote separate concurrences calling for en banc reconsideration of the first prong of Laumer.
  • The DCCA acknowledged that a recent amendment to the Federal Rules of Evidence states that the judge may not base admission or exclusion of a hearsay statement on the court’s assessment of the testifying witness’s credibility, and that the Laumer approach requiring the trial court to assess the credibility of the in-court witness represents a minority view.  See Slip op. at 8-9.
  • Footnote 8 may be useful in getting better curative instructions during trial.  Trial judges are often reluctant to tell a jury a fact as part of a curative instruction, and prefer to give the lukewarm “there has been no evidence that” (which suggests that while the damaging information may be true, the jury hasn’t heard evidence of it).  This footnote may be useful to show trial judges that the DCCA thinks the more direct route is not only allowed, but preferable.  It reads: “The trial judge instructed that ‘[y]ou have heard evidence that a person named Trey Joyner is no longer alive.  There is no evidence that either defendant or anyone associated with either defendant ever played a role in Mr. Joyner’s death.’  Perhaps it would have been clearer to say:  ‘Neither defendant nor anyone associated with them had anything to do with the death of Mr. Joyner.’”  Slip op. at 20 n.8.  JF & NG

Wednesday, October 1, 2014

If a statement is made in the Home Depot and no one feels threatened, can it be a threat?

Myron O’Neal Gray v. United States, Nos. 12-CM-2045 and 12-CM-2050 (decided September 25, 2014).

Players:  Associate Judges Glickman and Fisher, Senior Judge Ruiz.  Opinion by Senior Judge Ruiz.  Rose Mary Drake for Mr. Gray.  Trial Judge Yvonne Williams.

Facts:  This case arose from an interaction between co-workers at a Home Depot.  Jonathan Lowery testified that Mr. Gray, whom he considered a friend, approached Mr. Lowery at work: “[He] was threatening me, said he will kill me, I’ll see you outside of work.  He pointed his finger at me in my chest, I will kill you I see you outside of work.”  Slip op. at 3.  Mr. Lowery also testified that he responded by walking away and reporting the incident to a supervisor, and that he was not frightened by Mr. Gray’s statement. 

Issue: When determining whether certain words or actions would constitute a threat to a reasonable person, to what degree should the trial court consider the actual hearer’s reaction to the purported threat?

Holding: “[A]ll the surrounding circumstances, including what the actual hearer knew” are relevant to determining whether a statement constitutes a threat.  Slip op. at 7. 

Of Note:

  • While the government need not prove that the hearer actually felt fear or intimidation, the hearer’s response is still relevant.  The hearer’s reaction can be evidence of whether a reasonable person in that situation would interpret the statement to present a risk of serious bodily harm or injury: “[E]vidence about an actual person’s response to a situation is evidence, sometimes the best evidence available, of how a reasonable person would have responded under the circumstances.”  Slip op. at 9. 

  • Here, it was not dispositive that Mr. Lowery said he did not feel Mr. Gray’s words presented a real threat of serious bodily harm.  The court noted that Mr. Lowery thought that his co-worker seemed “serious,” and that Mr. Lowery walked away to avoid further confrontation and reported the incident to a supervisor.  In addition, there was no evidence that Mr. Gray was joking.  Under these circumstances, there was sufficient evidence to conclude that Mr. Gray’s words would convey fear of serious harm or injury to the ordinary hearer.  Slip op. at 12-13.  NG