Wednesday, June 24, 2015

Telling Someone the State will Take Their Kids Away is Coercive, Who Knew?

Patrick Broom v. United States, No. 13-CF-1423 (decided June 18, 2015)

Players: Associate Judges Blackburne-Rigsby and McLeese, and Senior Judge Ferren. Opinion by Judge McLeese. Ian A. Williams for Mr. Broom. Trial Judge: Stuart Nash.

Facts: After a building manager discovered a bullet hole in the wall between two apartments and called the police, officers decided that the bullet had come from the apartment occupied by Shawnta Hagans. After asking to enter her apartment, the police “immediately” saw a bullet hole in the wall and placed Ms. Hagans and defendant Patrick Broom, who was present but said he did not live in the apartment, in handcuffs. The officers told Mr. Broom and Ms. Hagans that they were not under arrest, but also that they believed a firearm was present in the apartment; an allegation that Mr. Broom and Ms. Hagans denied.

After Ms. Hagans’s small child, who was also present, began to cry, the officers unhandcuffed Ms. Hagans, but then said that if there was a firearm in the apartment, both Mr. Broom and Ms. Hagans could be arrested and that the child would be sent to Child and Family Services. At this point, Ms. Hagans started crying and pleaded that Mr. Broom tell the officers where the gun was. Mr. Broom, still handcuffed, then led the officers to the kitchen where the police recovered a firearm in a cabinet. Ms. Hagans then led the officers to the bedroom and showed them the magazine for the gun, as well as ammunition. Only at this point did officers tell Mr. Broom that he was under arrest, but at no point did they inform Mr. Broom or Ms. Hagans of their Miranda rights.

The trial court found that the officers’ statement regarding Ms. Hagans's child was not intended to coerce Mr. Broom and Ms. Hagans to cooperate, but rather was “just stating the facts of life.”

Issue: Was Mr. Broom “in custody” at the time he told the police where the gun was such that the officers’ failure to give him Miranda warnings required suppression of his statements?

Holding: Yes. The Court finds that three facts rendered Mr. Broom “in custody:” (1) he was handcuffed; (2) the officers made a statement that would reasonably be understood as a highly coercive threat to take Ms. Hagans’s child into state custody, which predictably led Ms. Hagans to cry and beg Mr. Broom to cooperate with the officer; and (3) Ms. Hagans’s plea that Mr. Broom cooperate would reasonably have seemed to strengthen the evidence against Mr. Broom. Even when balanced against the facts that the police told Mr. Broom that he was not under arrest, did not draw their weapons or act aggressively, and removed Ms. Hagans’s handcuffs to allow her to see to her child, these did not outweigh the circumstances supporting a finding of custody.

Of Note:
  • The Court makes clear the officers’ intent in making the statement about Child and Family Services does not matter—objectively, a reasonable person would have viewed the statement as “highly coercive.”
  • The Court rejects the government’s argument that Ms. Hagans’s plea to Mr. Broom was irrelevant to the custody determination because she acted independently of the police, finding that, under these facts, her conduct was attributable to the officers’ threat about her child.  CP

Tuesday, June 23, 2015

Current Model Instruction on Mens Rea for Aggravated Assault is Incorrect: Extreme Indifference to Human Life Required

Marques An’Rico Johnson v. United States, No. 13-CF-929 (Decided June 18, 2015)

Players:  Chief Judge Washington and Associate Judges Fisher and Thompson.  Opinion by Judge Fisher.  Richard S. Stolker for Mr. Johnson.  Trial Judge: Heidi M. Pasichow.

Facts:  As Timothy Conrad and Danisha Kenner exited an apartment building on November 17, 2011, Mr. Johnson fired multiple shots in rapid succession at Mr. Conrad, striking him seven times. Mr. Johnson fled to an apartment where police later recovered a 9-millimeter handgun, loaded with bullets labeled “WIN .380 auto,” the same notation as was one seven shell casings recovered at the scene.  DNA testing revealed Mr. Johnson’s DNA on the recovered gun.  Mr. Johnson was convicted of, inter alia, aggravated assault.

Issue 1:  Whether the trial court committed plain error in instructing the jury that it could find Mr. Johnson guilty of the crime of aggravated assault if it found that he “was aware that his conduct created an extreme risk of serious bodily injury to [Mr.] Conrad, but engaged in that conduct nonetheless.”  

Holding:  No, BUT, the DCCA, assuming error, strongly signaled that this instruction, which is taken from the 2012 edition of the "Red Book" model jury instructions, is incorrect in light of Perry v. United States, 36 A.3d 799 (D.C. 2011).  In Perry, the Court found that D.C. Code § 22-404.01 (a)(2) requires that a person not only intentionally and knowingly engages in conduct that creates a grave risk of serious bodily injury, but also that he must do so “under circumstances manifesting extreme indifference to human life.”  Perry, 36 A.3d at 817.

However, in this case, and applying plain error review, the Court found no plain error because the facts of this case “powerfully demonstrate” a violation of the other type of aggravated assault, see D.C. Code § 22-404.01 (a)(1), a knowing or purposeful effort to cause serious bodily injury, meaning that “extreme indifference to human life” would not come into play and that Mr. Johnson had failed to prove prong three of the plain error test (whether the error affected "substantial rights"). 

Other Issues: (1) The trial court did not abuse its discretion in refusing to compel the government to allow Mr. Johnson’s expert to independently test the recovered firearm because the government did not actually prevent such an examination and it was not clear that trial counsel ever requested such compulsion from the trial court; (2) the trial court’s refusal to allow Mr. Johnson to impeach Mr. Conrad with prior juvenile adjudications neither violated Mr. Johnson’s Sixth Amendment rights, because the adjudications did not go to bias, nor constituted an abuse of discretion, because such impeachment would have been cumulative and Mr. Conrad’s testimony was not central to the government’s case; and (3) the trial court did not abuse its discretion in permitting the government’s DNA expert to use a demonstrative slide show when testifying.

Practice Note: Trial lawyers should object to the language in the model instruction as it is and request it be modified to the language Johnson suggests. Appellate lawyers should keep an eye out for cases in which this might have mattered, since the Johnson court found no plain error for case-specific factual reasons. CP

Thursday, June 18, 2015

No Seizure Occurred Before Consent Search Leading to Discovery of “Teeny Tiny” Gun; Involuntary Manslaughter Is a Crime of Violence Under § 23-1331(4)

Edward Towles v. United States, No. 14-CF-509 (decided June 4, 2015).

Players:  Glickman, Thompson, King.  Opinion by Judge Thompson.  Barbara E. Kittay for Mr. Towles.  Trial judge:  Robert R. Richter.

Facts:  Police found a “teeny tiny” gun and PCP on Edward Towles after they encountered him on the street and stopped him while they were “looking for guns.”  Mr. Towles argued that he was illegally seized, and moved to suppress the gun and drugs. 

At the suppression hearing, a police officer testified that while he and three other law enforcement officers were driving in an unmarked car in Southeast, they saw Mr. Towles walking down the street with another man.  Mr. Towles looked over his shoulder at the police, then moved his hand near his waistband before breaking away from his friend, turning onto another street, and increasing his pace.  Getting out of the car, the officer asked Mr. Towles whether he had a gun, and Mr. Towles reached under his coat and produced a cell phone.  As he moved his coat, the officer thought it looked like the right pocket contained a heavy object that might be a gun.  The officer then approached, telling Mr. Towles in a “raised” voice, “[K]eep looking at me.  Keep looking at me,” and asked to pat him down.  He claimed that Mr. Towles consented to the pat-down, but that before it began, he volunteered that he had a gun.  In his right coat pocket, police found a .32-caliber semiautomatic weapon, measuring three inches from top to bottom.  After officers handcuffed him, he told them that he also had PCP.

Mr. Towles and his cousin offered a conflicting account, testifying that police repeatedly asked them for consent to search, but that Mr. Towles never gave consent.  The judge credited the police officer’s testimony, found that Mr. Towles had consented to the search, and denied the motion to suppress.

Issue #1:  Did the trial court err in denying the motion to suppress, where the defense argued that police illegally seized Mr. Towles by repeatedly demanding permission to search, and that any consent they obtained after that was invalid?  

Holding #1:  No.  Accepting the officer’s description of the encounter, as the trial court did, there was no seizure before the officer asked permission to conduct the pat-down, and after Mr. Towles consented to the search and then volunteered the information that he had a gun and PCP, officers had probable cause to arrest him and to search him incident to arrest.  

Issue #2:  Did Mr. Towles’s prior conviction in Maryland for involuntary manslaughter qualify as a “crime of violence” under D.C. Code § 23-1331(4), so that pursuant to § 22-4503(b)(1) he faced a mandatory minimum sentence of three years for possessing a firearm?      

Holding #2:  Yes.  The term “manslaughter,” as used in § 23-1331, refers to both voluntary and involuntary manslaughter.

Of Note: 

  • As to the Fourth Amendment issue, the Court observes in a footnote that “there may have been a seizure” when the officer used a raised voice to tell Mr. Towles, “[K]eep looking at me.  Keep looking at me.”  It does not reach that issue, however, “because neither in his motion to suppress, nor in the argument before Judge Richter, nor in his brief to this court, did appellant argue that appellant was seized for Fourth Amendment purposes when Officer Katz uttered those commands.”  MW.     

Friday, June 12, 2015

Proof of prolonged detention is not necessary for a kidnapping conviction

Anthony Richardson and James Walker v. United States, Nos. 12-CF-1303 & 12-CF-1409 (decided June 11, 2015).

Players: Judges Fisher, Blackburne-Rigsby, and Pan (sitting by designation).  Opinion by Judge Pan.  Cory Carlyle for Mr. Richardson.  PDS for Mr. Walker.  Trial Judge: Michael Ryan.

Facts: Mr. Richardson and Mr. Walker were convicted of kidnapping while armed and a host of other charges relating to an incident that occurred in the early morning hours of November 20, 2011.  They challenged their kidnapping convictions, urging the court to adopt the majority approach to construing the elements of kidnapping, which would require the government to prove that the detention underlying the kidnapping was prolonged or for an appreciable length of time, and not incidental to another offense.  Mr. Richardson also challenged his conviction for carrying a dangerous weapon related to a knife found in Mr. Walker’s possession.

Issue 1: Does the kidnapping statute encompass an element of “non-incidental” confinement requiring the government to prove prolonged detention of the victim?

Holding: No.  Although recognizing that other jurisdictions impose such a requirement to “address the risk of severe sanctions being imposed for kidnapping based on a broad and ill defined range of behavior, including relatively trivial types of restraint,” the DCCA held that it was bound by its decision in Hagins v. United States, 639 A.2d 612 (D.C. 1994), in which the Court considered and rejected a similar argument. 

Issue 2: Was there sufficient evidence to find Mr. Richardson guilty of carrying a dangerous weapon when there was no evidence that he actually possessed the weapon?

Holding: Yes.  The Court found that the defendant could be properly convicted under a Pinkerton conspiracy liability theory.  It did not matter to the court that the jury acquitted appellants of the actual conspiracy charge, as the verdicts on an indictment do not have to be consistent.

Of Note:

  • The court recognized that a footnote in Parker v. United States, 692 A.2d 913, 917 n.5 (D.C. 1997) may cast doubt as to the validity of Hagins, but was “unwilling to conclude that the footnote in Parker overrules a case that it does not even mention.”  DH

Failing to show at a probation status hearing leads to jail ten years later.

Robert Alexander v.United States, No. 13-CO-1105 (decided June 11, 2015).

Players: Associate Judges Glickman and Thompson, Senior Judge Reid.  Opinion by Judge Thompson.  Lisa Chanel for Mr. Alexander.  Trial Judge: Brian F. Holeman.

Facts: Mr. Alexander pled guilty to possession of marijuana in February 2002 and was sentenced to one year of probation.  The court set a status hearing 40 days before the expiration of the probationary period (January 6, 2003) to assess Mr. Alexander’s compliance with the terms.  Mr. Alexander showed up late to the hearing and failed to return to court after a lunch recess.  The court issued a bench warrant for Mr. Alexander’s arrest that same day, and the warrant was reissued in March 2004, February 2005, and on July 15, 2013.  In August 2013, ten years after the scheduled hearing, Mr. Alexander was arrested on the warrant.  The court revoked Mr. Alexander’s probation and sentenced him to 180 days’ incarceration.

Issue: Did the court have the authority to revoke Mr. Alexander’s probation and sentence him to incarceration 10 years after the probation term was set to expire?

Holding: Yes.  Mr. Alexander’s failure to appear at the January 2003 hearing and the resultant bench warrant tolled the running of the probationary period until his arrest, and “provided the court with jurisdiction to complete the revocation proceedings, even after the probationary term would have otherwise ended.” Sumpter v. United States, 564 A.2d 21, 23 (D.C. 1989).  DH

Violation of a condition in a juvenile pretrial release order is not punishable as contempt

In re Q.B., No. 14-FS-645 (decided June 11, 2015).

Players: Associate Judges Thompson and Beckwith, Senior Judge Steadman.  Opinion by Judge Beckwith.  PDS for Q.B.  Trial Judge: Danya Dayson. 

Facts: The District filed a delinquency petition charging Q.B. with unlawful entry, and the trial court determined pretrial detention was necessary.  On the defense’s motion, the court subsequently released Q.B. from detention subject to several conditions, one of which was a 7:00 p.m. curfew.  A week before trial, Q.B. was caught violating curfew.  The District therefore filed a second petition charging Q.B. with contempt under D.C. Code § 11-944(a)(2).  The original petition was dismissed for want of prosecution, but the District pressed on with the contempt prosecution.  Q.B. filed a motion to dismiss the second petition arguing that it failed to charge an offense.  The trial court agreed and dismissed the petition. 

Issues 1: Did the trial court have the authority to dismiss the petition for failing to state a charge before holding a hearing? 

Holding: Of course. Juvenile Court Rule 12 provides that “any defense objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion and in accordance with Rule 47-I.”  Specifically, this includes “‘defenses and objections based on defects in the petition,’ including failure to charge an offense.”

Issue 2: Did the petition validly charge an offense under the general contempt statute, D.C. Code § 11-944, by alleging that Q.B. violated a condition of his pretrial order? 

Holding:  No.  Relying on (Anthony) Jones, 51 A.3d 1290 (D.C. 2012), the court held that the violation of a pretrial release order is not punishable as contempt in juvenile court.  The court distinguishes its prior cases affirming contempt convictions in similar situations by finding they have no stare decisis effect given that the argument was never made in those cases that violation of a release order could not be prosecuted as contempt.

Of Note:
  • The court did not decide the question whether a court can issue a freestanding order to a pretrial juvenile requiring that he or she abide by a condition independent of the pretrial release power (fn 6). 
  • The court also did not decide Q.B.’s claim that § 11-944 does not define an “offense” that can be prosecuted as a delinquent act, but notes that it is an open question (fn 9).  DH