Tuesday, September 16, 2014

Beware: The trial court can instruct the jury on lesser included offenses during deliberations even though the parties neither requested the instruction nor addressed it in closing arguments



Cedrick Lorenzo Shuler v. United States, No. 13-CF-107 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Fisher, Senior Judge King.  Opinion by Associate Judge Blackburne-Rigsby.  Thomas T. Heslep for appellant.  Trial Judge William M. Jackson.  

Facts:  The trial court instructed the jury on two possible theories on the charge of first degree murder while armed: that Mr. Shuler intended to kill the decedent, or that Mr. Shuler’s intent to kill a bystander transferred to the decedent.  The jury soon asked in a note whether it could consider a lesser offense.  Based on the note, the trial judge informed the parties that he was inclined to instruct the jury on the lesser included charge of second degree murder while armed.  The government agreed with that approach, while the defense objected.   

Issue: Whether the trial court may instruct the jury on a lesser included offense after closing arguments when neither party requested the instruction.

Holding:  Yes.  So long as the timing of the instruction is not unduly suggestive and the defendant is not prejudiced by failing to address the lesser included offense charge effectively, the jury may be given a post-summation supplemental instruction on lesser included offenses.

Of Note:

  • If you don’t want the jury to be instructed on lesser included offenses, you’re not out of the woods just because the instruction wasn’t given before deliberations began.  This case suggests two ways to avoid an instruction on lesser included offenses: 
    • Timing:  Argue that the timing of the instruction is unduly suggestive.  Here, the instruction was given in response to a question by jurors and no more than four hours into deliberations.  Distinguish your case from these facts. 
    • Prejudice:  Argue that the late instruction deprives your client of the opportunity to address the charge effectively or damages arguments you made during closing.  Mr. Shuler objected to the proposed instruction by saying that he would have argued differently during closing arguments had he known the instruction would be given, but the Court found this was insufficient to establish he would be prejudiced by the late instruction.  Mr. Shuler’s defense was that he wasn’t present during the shooting, and the defense did not address the elements of first degree murder during closing arguments.  Distinguish those facts when making a record about how you are prejudiced by a late instruction.
  • A reminder: the trial court is entitled to act sua sponte in giving a lesser included instruction, so long as one of the parties affirmatively agrees with the instruction when it is suggested.  Slip op. at 18 (quoting Hawthorne v. United States, 829 A.2d 948, 952 (D.C. 2003)).  NG

Thursday, September 11, 2014

DCCA announces a new rule for when harassing conduct can be charged as separate counts of stalking



Joy Whylie v. United States, No. 13-CO-480 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Thompson, Senior Judge King.  Opinion by Senior Judge King.  Andrew R. Szekely for appellant.  Trial Judge Robert I. Richter.  

Facts:  When Melody Parker began working at the Psychiatric Institute of Washington, she was warned that Joy Whylie had a penchant for making crank calls to the facility.  Ms. Whylie apparently proceeded to focus her attention on Ms. Parker, and made thousands of harassing phone calls to her between June of 2010 and February of 2011.  On July 16, 2010, Ms. Parker obtained a protective order that prohibited Ms. Whylie from contacting her.  A Superior Court judge entered a criminal stay-away order on December 3, 2010.  Ms. Whylie continued to call Ms. Parker.  In February of 2011, she also called Ms. Parker’s step-mother using “Spoofcard,” a service that made the call look as if it originated from Ms. Parker’s phone.  These phone calls made it appear to authorities that Ms. Parker was violating a separate no-contact order that she had with her step-mother, and led to the mistaken initiation of criminal prosecution against Ms. Parker in Maryland.   Ms. Whylie was convicted of, among other charges, four counts of felony stalking and one count of misdemeanor stalking.  

Issue: Under what circumstances does stalking behavior constitute a separate “course of conduct,” that can be charged as a unique violation of D.C. Code § 22-3133?  

Holding:  Stalking conduct that “could reasonably cause a victim to be frightened in a different way from previous or succeeding conduct (or not to be frightened at all) . . . should be deemed to constitute a separate course of conduct.”  Slip op. at 14.  In addition, “stalking that post-dates a no-contact order can be charged separately from conduct that precedes that court order.”  Id.

Of Note:
  • The government was justified in charging the following acts as separate counts of stalking: 
    • The more than 1400 calls to Ms. Parker at PIW between June 14 and July 16, 2010, could be charged as one count of misdemeanor stalking.  The conduct that followed the July 16 restraining order could be charged separately, as it constituted conduct post-dating a no-contact order. 
    • The nearly 150 calls that Ms. Whylie made to Ms. Parker between December 4 and December 30, 2010, in violation of the December 3 no-contact order.  This conduct could also be charged separately, as it constituted conduct post-dating a no-contact order. 
    • The calls that Ms. Whylie made to Ms. Parker’s step-mother between February 5 and February 28, 2011, using the Spoofcard service.   This conduct could be charged separately because they were “designed to engender a different type of fear than the previous calls caused,” slip op. at 17, and therefore “reflected a purpose different from appellant’s purpose in making the previous calls and to have ‘invaded a different interest,’” id. (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988)). 
  • However, the government did err in dividing the following acts into two separate charges: 
    • The more than 800 calls that Ms. Whylie made between September 12 and October 24, 2010. 
    • The more than 700 calls that Ms. Whylie made between November 1 and December 2, 2010. 
    • These groups of calls could be charged separately from the pre-restraining order conduct, but could not be charged separately from each other.  There was nothing distinguishing these month-long periods of stalking conduct other than that they each lasted a month, but the Court held that duration alone is insufficient to establish that a series of acts constitutes a separate course of conduct.  Slip op. at 18.  NG
    •  Read full opinion here


Wednesday, September 3, 2014

A defendant’s fear that he had been discovered as a police informant by the decedent who called him a “snitch a** b****” was relevant to the defendant’s claim of self defense.


Troy Richardson v. United States, No. 11-CF-755 (decided August 28, 2014)

Troy Richardson v. United States, No. 11-CF-755

Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Senior Judge Belson.  Edward F.C. Gain, Jr., for appellant.  Trial Judge Gerald I. Fisher.

Facts:  Richardson was initially charged with first-degree murder while armed and carrying a dangerous weapon (CDW) in the stabbing death of Tyrone Wheaton.  After the first trial, the jury acquitted Richardson of first-degree and second-degree murder while armed, but hung on voluntary manslaughter while armed and CDW.  A second trial resulted in Richardson’s conviction on the manslaughter and CDW charges.  Government witnesses testified that after an argument, Richardson stated that he was going to kill Wheaton before stabbing Wheaton who was unarmed.  Wheaton’s two sons, testified as defense witnesses that Wheaton was swinging a crow bar at Richardson when Richardson stabbed him.  Richardson testified that the altercation began when Wheaton approached him and called him a “‘snitch-a** b****’” and then attacked him, hitting Richardson with something hard in his back before Richardson grabbed a knife and stabbed Wheaton.  At the first trial the jury heard evidence that Richardson had “‘snitched’” on Wheaton and his drug dealing operation to the police, a fact that was confirmed by the testimony of a police sergeant.  Richardson testified at the first trial that he was afraid of Wheaton because he believed Wheaton knew he had given information to the police and because “‘once you’re known in the neighborhood as being a snitch [it has] repercussions behind it.’”  Prior to the second trial, however, the government moved to exclude that evidence as irrelevant.  The trial court granted the government’s motion, excluding evidence that Richardson spoke to the police months before the stabbing about drug dealing at Wheaton’s apartment, that the police had executed a search warrant at Wheaton’s apartment, and testimony by Richardson that he believed Wheaton knew he had talked to the police.  The trial judge ordered Richardson not to discuss the matter in his testimony, explaining to him that “‘what you think people may have thought about you, just that view without more, is not relevant … unless you can prove that, in fact, they did have that thought.”         

Issue:  In a self-defense homicide case, was evidence that the defendant previously informed on the decedent’s drug dealing operation, and that the defendant feared that the decedent knew about the defendant’s previous informing activities, relevant to the defendant’s self-defense claim where the decedent allegedly called the defendant a “snitch a** b****” right before the altercation that ended in the decedent’s stabbing death?  

Holding:  The trial court abused its discretion in precluding the evidence as irrelevant.  The issue is not whether the decedent actually knew that Richardson was an informant and therefore actually wanted to harm him, the issue is whether Richardson was reasonably fearful of the decedent, for that reason and/or other reasons.  “We conclude that the trial court required Richardson to prove too much.  The trial court said that the ‘snitch’ evidence could not bridge the gap between what Richardson believed about what Wheaton thought and what Wheaton actually thought.  However, in order to raise self-defense in this case, Richardson did not have to show that his beliefs underlying his self-defense claim were true, only that they were reasonable and honestly held.”  Furthermore, the evidence would have supported Richardson’s testimony that Wheaton called him a “‘snitch-a** b****’” and the evidence would provide context that would make the “‘snitch-a** b****’” remark “seem more ominous and threatening.”  The exclusion prevented Richardson from presenting a complete defense and was not harmless.   

Of Note: 

·         There is some language in the harm analysis that, if taken out of context, could be confusing.  Specifically: “[D]efendants have a right to present crucial relevant evidence establishing a valid defense.  Not all relevant evidence meets this bar.”  (quotations and citations omitted).  This does not mean that when defendants proffer evidence it must be more than relevant – “crucial” – to be admissible.  Relevant evidence should never be excluded because it is not “crucial.”  The question of whether the evidence is “crucial relevant evidence establishing a valid defense” only relates to the appellate court’s determination of which harm standard to apply when a trial court has erroneously excluded relevant evidence.  The “crucial” language is in the Court’s harm analysis, which the Court engaged in only because it had already concluded that the exclusion of relevant evidence – even if it is not “crucial” – was erroneous.  The Court quoted the “crucial” language from harm discussions in other cases, which focused on determining whether the erroneous exclusion of particular evidence in those cases rose to the level of constitutional error, requiring application of the Chapman beyond a reasonable doubt standard, or whether the exclusion was non-constitutional and the Kotteakos harm standard should be applied. JA.

Tuesday, September 2, 2014

Prosecutions of APO against US Park Police officers don’t violate the Home Rule Act.

(please note that the photograph above is an image obtained from the internet, which was marked for public use; it does not depict the appellant or the arrest in this case)

Scott Myerson v. United States, No. 12-CM-1642 (decided August 28, 2014)

Players: Associate Judge Blackburne-Rigsby, Senior Judges Pryor and King.  Opinion by Judge Blackburne-Rigsby.  Jeffrey L. Light for appellant.  Trial Judge Juliet J. McKenna.

Facts:  Park Police officers were arresting a pedicab driver for refusing to move his pedicab from a handicap space.  Myerson, another pedicab driver, pedaled up on his pedicab and tried to tow the other pedicab away from the handicap space.  The officers ordered him to release the pedicab and Myerson did so.  Myerson, however, argued with one of the officers.  The officers then issued Myerson a ticket for parking his pedicab in a no parking zone.  Myerson screamed loudly and pulled out his cell phone and held it front of the face of one of the officer’s (presumably to take a photograph or video).  The officer ordered Myerson to put his phone away, but Myerson refused.  The officer then arrested Myerson for refusing the order.  During the arrest, Myerson “‘aggressively pulled his right arm free.’”  In response, the officer forced Myerson to the ground.  In the process of forcing Myerson to the ground, the officer injured his (the officer’s) knee.  Myerson was convicted of misdemeanor APO. 

An off-duty police officer visiting from Pennsylvania provided a written account to the police.  Myerson’s defense counsel sought to speak to the witness, but the witness refused.  The defense sought to subpoena him, but the government refused to provide his address and instead represented that it would call the witness in the government’s case.  At trial, the government did not call the witness.  The government agreed, however, to a continuance of the trial in order to produce the witness.  The defense refused and instead asked that the case be dismissed.

Issue 1:  Does the assault on a police officer (APO) statute violate the Home Rule Act when the complainant is a federal officer?

Issue 2:  Where the defendant does not seek to subpoena a witness based on the government’s representation that it will call the witness in the government’s case, and the government fails to call that witness but offers to produce the witness after a continuance, are the defendant’s constitutional rights to a speedy trial or compulsory process violated?

Holding 1:  The original APO statute originates from a 1953 congressional act that preceded the 1973 Home Rule Act.  The 2006 modification of the APO statute did not exceed the authority of the Home Rule Act that explicitly permitted amendments to Titles 22-24.  Enforcing the APO statute with respect to these federal Park Police officers, who were enforcing local traffic ordinances at the time, did not impede on a “federal function” and therefore did not violate the Home Rule Act

Holding 2:  There was no violation of the defendant’s speedy trial rights because the brief continuances were not unreasonable, and the reasons for the continuances were neutral and valid reasons, and there was no prejudice caused by the delays.  There was no violation of the right to compulsory process because the defendant failed to show that the witness’s testimony would have been favorable to the defense, given that the witness’s statement essentially corroborated the government’s case. 

Read the full opinion here.

Thursday, August 28, 2014

Hands Up, Hands Down, Hands Up, Hands Down


Donald Brown v. United States, No. 12-CF-803 (decided August 8, 2014)

The Players: Washington, Glickman, Ruiz.  Opinion by Judge Ruiz.  Cynthia Nardone for Appellant.   Trial judge: Florence Pan.

The Facts:  The police received a 911 call reporting a man with a gun wearing a “black hood, black hoodie, blue jeans” with a “brown complexion” gambling “in a hallway” with others.  When police arrived at the apartment complex, they did not see anyone gambling, but they observed three people standing outside. One wore a black hoodie and blue jeans, a second was Appellant Brown. Upon seeing the police, the man with the hoodie walked away.  Police approached the other two and asked if they would talk to the officers.  They then asked if either man a weapon.  The two said that they did not.

The officers then stated that they might need to frisk the individuals.  One agreed and walked to the fence, positioning himself to be frisked.  Brown followed, but after initially putting his hands up, he put them down again, put them up again, and then put them down for a second time.  Sensing his indecisiveness, one officer suggested that Brown put down the fast food bag he was carrying.  Brown then fled the scene.  As he ran, one officer grabbed his jacket.  Brown “wriggled” out of it and kept running.  The officer subsequently searched it and found a .22 caliber gun.  Brown was apprehended by other officers a few blocks away.

Issue: Did the officers have reasonable, articulable suspicion to seize Brown, and was the warrantless search of his jacket constitutional?

Holding: Yes.  The Court found there was reasonable, articulable suspicion to seize Brown because:  (1) it was a high crime area; (2) police were there in search of a man with a gun, and Brown was with someone who matched the lookout for a man with a gun, and (3) Brown was indecisive, evasive, and tried to flee.   

Police also found that Brown had abandoned his jacket when he wriggled out of it, and so the trial court’s finding that Brown lacked a reasonable expectation of privacy in that jacket was not clearly erroneous.

Of note: The Court’s emphasis on Brown’s association with someone who matched the lookout is somewhat surprising given the Court’s statements in other cases discouraging guilt by association. JB.

Read the full opinion here.

Tuesday, August 26, 2014

Happy birthday, blog!


Today, the PDS Criminal Law Blog celebrates its first birthday.  We'd like to extend a big thank you to all of our readers and contributing writers.

Monday, August 25, 2014

Once jurors, given a “reasonable efforts” instruction, move on to decide a lesser included offense, the court may not order them back to deliberation on the greater offense unless it first concludes that they have not expended reasonable efforts to reach agreement on that greater offense.


Ronald O. Douglas v. United States, No. 11-CF-790 (decided August 21, 2014)

The Players:  Thompson, Beckwith, Farrell.  Opinion by Judge Beckwith.  R. Michael Labelle for Mr. Douglas.  Trial judge:  Florence Pan.

The Facts:  Mr. Douglas was tried on possession with intent to distribute (PWID) and the lesser included offense (LIO) of possession of a controlled substance after police found almost a pound of marijuana, worth $5,310, inside a car he was driving.  The jury was instructed to consider PWID first, moving on to the LIO only if it was unable to agree on a PWID verdict “after making all reasonable efforts” to do so.  Three hours into deliberations, the jury sent a note indicating it could not reach agreement on PWID.  The trial court expressed doubt that “they’ve made a reasonable effort yet,” and instructed the jury to break for the day and resume deliberations in the morning.  By mid-morning, the jury sent a second deadlock note and asked if it could now consider the LIO.  The court responded, “If you have exercised reasonable efforts and are unable to reach a unanimous verdict on possession with intent, you may consider the charge of possession.”  Within an hour, the jury reached a verdict on the LIO.  The court took the guilty verdict and then, over defense objection, delivered a Gallagher anti-deadlock instruction, see Criminal Jury Instructions for the District of Columbia, No. 2.601(III)(C) (5th ed. rev. 2013), and sent the jury back to continue deliberating the PWID charge.  Eventually, the jury found Mr. Douglas guilty of PWID.

Issue:  Did the trial court unduly coerce the jury by instructing it to reconsider PWID after the jury had twice stated it could not reach a unanimous verdict on that charge and followed the “reasonable efforts” instruction to find Mr. Douglas guilty of the LIO?

Holding: Yes.  “[B]efore a judge may make a jury continue deliberating on a greater charge where that jury has said or implied by its action that it cannot reach a verdict on the greater charge despite reasonable efforts to do so, the judge must be unpersuaded—and the record must make clear that she is unpersuaded—that the jury has, in fact, applied reasonable efforts to the decision.”  Slip Op. at 15 (emphasis added).  Here, the trial court appeared to assume the jurors did expend all reasonable efforts and to believe, wrongly, that it had authority to order them back to deliberations anyway.  In any event, the absence from the record of “the necessary signs that the trial court believed the jury had not exercised reasonable efforts” when it ordered them back to deliberations was dispositive that it had abused its discretion.  Slip. Op. at 14-15.

Of Note:  The DCCA distinguished Jackson v. United States, 683 A.2d 1379 (D.C. 1996), on which the trial court had relied, because in that case, the trial court had expressly asserted that it did not believe the jury expended reasonable efforts before it ordered them back to deliberating the greater offense.  FT.