Friday, January 30, 2015

A sentencing judge should not secretly look at a defendant’s records from other cases in CourtView, and if he does he should not mischaracterize them

Jerome Bradley v. District of Columbia, No. 11-CT-955 (decided January 22, 2015).

Players:  Associate Judges Easterly & McLeese, Senior Judge Ferren.  Opinion by Associate Judge Easterly.  George Weiss for Mr. Bradley.  PDS as amicus curiae.  Trial Judges:  Florence Y. Pan & Frederick J. Sullivan, Magistrate Judge.

Facts:   Mr. Bradley was found guilty of charges arising from a reckless driving incident in which a person’s leg was injured.  At sentencing, Magistrate Judge Sullivan imposed the maximum sentence allowed, apparently after reviewing Mr. Bradley’s records from other cases in CourtView.  Judge Sullivan did not inform the parties what materials he was looking at or make them part of the record.  He remarked that he believed Mr. Bradley had spent his entire life “selling drugs, being around guns, [and] fleeing the police”; that he was going to “sell . . . drugs” and “shoot somebody” when he got out; that he had gotten a break in a previous case when he got probation instead of a 40-year sentence; and that he had almost killed someone while he was on probation.   It turned out that Mr. Bradley had only four convictions from two incidents, none of them were for selling drugs or gun violence, he had never received a sentence of probation (or faced a possible 40-year sentence), and had never come close to killing anyone.  Mr. Bradley sought review of the sentence from a Superior Court judge.  Judge Pan acknowledged Judge Sullivan’s “overstated and exaggerated” comments, which “if read literally, were not based on any evidence in the record,” but nevertheless found no reversible error in the sentence.  

Issue:  Did the sentencing violate due process because the magistrate judge based the sentence on an assessment of the defendant’s criminal history that was unsupported by the record and without informing the parties what materials he was reviewing?

Held:  Yes.  All of Judge Sullivan’s statements described above were unfounded, in part because he considered arrests and charges that did not result in a criminal conviction.  The resulting sentence violated due process for two reasons.  First, the unfounded statements were material to the Judge Sullivan’s sentencing decision.  Second, Judge Sullivan failed to inform the parties of his reliance on Mr. Bradley’s records in CourtView and Mr. Bradley thus was left unable to correct the judge’s mistaken understanding of his criminal history.  Judge Sullivan should have identified the CourtView documents he was relying on and made them part of the record.

Of Note:

  • Although the court does not reach the issue, it notes that the parties agree that a sentencing judge considering a defendant’s prior criminal conduct must find that the prior conduct has been proven by, at a minimum, a preponderance of the evidence.

  •  The court directed that resentencing should take place before a different judge.  DG

Tuesday, January 27, 2015

Alert! DCCA to go en banc to determine whether the "search incident to arrest" exception to the Fourth Amendment warrant requirement requires an actual arrest or just probable cause to arrest.

In United States v. Nash, 100 A.3d 157, 165-68 (D.C. 2014), decided September 25, 2014, the DCCA held that a warrantless search of the defendant's car was justifiable as a “search incident to arrest” because the police had probable cause to arrest his passenger for possessing an open container of alcohol, even though they had not actually arrested her for it and were at best undecided about whether they were going to.  (Click here to see our blog post on the decision.)  PDS petitioned for en banc rehearing, arguing that the panel's holding could not be reconciled with the Supreme Court's decision in Knowles v. Iowa, 525 U.S. 113 (1998) (holding that a valid search incident to arrest requires an actual arrest, not just grounds for one).  See also Butler v. United States, 102 A.3d 736, 742-48 (D.C. 2014) (Beckwith, J., dissenting) (articulating this argument).  On January 23, 2015, the Court granted PDS's petition for en banc rehearing and vacated the portion of the Nash opinion containing the search-incident-to-arrest analysis and holding (Part III).  Thus, Nash's discussion of this issue is no longer good law; stay tuned for the DCCA's final word.  GB.  

Sleeping while drunk in the driver’s seat of a parked car with the engine running is driving under the influence, and you really should have known that

Mohamed Fadul v. District of Columbia, No. 13-CT-226 (January 22, 2015).

Players:  Associate Judges Glickman & McLeese, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  M. Kamionski for Mr. Fadul.  Trial Judge:  Truman A. Morrison III

Facts:   Mr. Fadul was found asleep in the driver’s seat of a parked car.  His urine showed that he was intoxicated.  He was charged with driving under the influence of alcohol (DUI).  

Issue 1:  Was there sufficient evidence that the defendant “operate[d]” and was “in physical control” of the parked vehicle as required by the DUI statute?

Holding 1:  Yes.  Operating a vehicle means being capable of putting the vehicle into movement or preventing its movement.  It is not limited to actual driving.  Thus, a person sleeping in the driver’s seat of a parked car with the engine idling is operating and in physical control of the car.

Issue 2:  Is the DUI statute unconstitutionally vague because a reasonable person could not have been on notice that sleeping in a parked car could violate the statute?

Holding 2:  No.  Because the court has consistently interpreted operation and “in physical control” to mean being capable of putting the vehicle into motion rather than actually moving, a person could have reasonably understood that sleeping in the driver’s seat with the engine running while intoxicated would violate the statute. DG

Monday, January 26, 2015

In an unlawful entry case based on the violation of a barring notice, the government has to prove the barring notice is valid

Darius Winston v. United StatesNos. 13-CM-1463 & 13-CM-1464 (January 22, 2015)

Players:  Associate Judges Thompson & Beckwith, Senior Judge Nebeker.  Opinion by Judge Thompson.  Rahkel Bouchet for Mr. Winston.  Trial Judge:  Marisa Demeo

Facts:   A D.C. Housing Authority (DCHA) officer observed Mr. Winston sitting on a stoop in a public housing complex.  After determining Mr. Winston was not a resident of the housing complex, the officer issued a notice barring Mr. Winston from the complex for one year.  The officer made no attempt to determine if Mr. Winston was there as a resident’s guest, but merely assumed he was not a guest.  In fact, Mr. Winston’s mother lived in the complex and testified that he visited her there regularly and also had friends who resided there.  When Mr. Winston was seen in the complex on two separate occasions after the bar notice was issued, he was arrested both times and charged with unlawful entry.

Issue:  In an unlawful entry case premised on the violation of a DCHA barring order, is the validity of the barring order an element of the offense and, if so, was that element satisfied?

Held:  Yes, it is an element, and no, that element was not satisfied.  The government must prove that the barring order was issued for a reason described in DCHA regulations and must offer evidence that the DCHA official who issued the notice had an objectively reasonable basis for believing that the criteria identified in the relevant regulation were satisfied.  Here, the officer made no attempt to verify whether Mr. Winston was a guest or if he was otherwise an “unauthorized” person under the DCHA regulations and thus lacked authority to bar him from the complex.  Because the barring notice was not valid, Mr. Winston could not be convicted of unlawful entry for violating it. DG.

Thursday, January 22, 2015

"You are under oath, sir!" . . . It might be error for the judge to admonish your witness, so object

Eddie Williams v. United States, No. 12-CF-1837 (Decided January 15, 2015)

Players: Associate Judges Thompson and Easterly, Senior Judge Ruiz.  Opinion by Senior Judge Ruiz.  Ian A. Williams for Mr. Williams.  Trial Judge: Florence Y. Pan.

Facts: Mr. Williams approached his neighbor, D.J., and threatened to shoot him.  D.J. and his friend testified that they saw Mr. Williams reach into his jeans and reveal what looked like the handle of a gun.  This was not the first hostile interaction between Mr. Williams and D.J.  D.J. testified that about a year earlier, Mr. Williams put what looked like a toy gun to his head and tried to “jack” him.  After the encounter, Mr. Williams taunted D.J. on a regular basis.  Defense counsel objected to the admission of this line of evidence as past bad acts propensity evidence. 

Issue 1: Did the trial court abuse its discretion by admitting evidence of Mr. Williams threatening and taunting D.J. and possessing what looked like a gun a year before the crime?

Holding: While the trial court erred in exercising its discretion by admitting the evidence, any error was not substantial, because the court gave a limiting instruction as to how the jury could use the evidence, the jury did not appear to give the evidence great weight given that they acquitted Mr. Williams of the armed offenses, and the weakness of the evidence connecting the two weapons was pointed out during closing.  Thus, there was no abuse of discretion. 

Issue 2: Did the trial court commit plain error in reminding D.J. that he was under oath and directing him to answer counsel’s questions truthfully, thereby discrediting D.J.’s exculpatory testimony?

Holding: The DCCA has never addressed whether it is an abuse of discretion for the trial judge to remind a witness to tell the truth.  The Court noted, however, that other courts have allowed such statements, although they run the risk of implying that the judge thinks the witness might not be telling the truth.  The Court did not decide the issue, instead holding that the error here, if any, would not have been obvious to the judge, thus succumbing to plain error review.

Of Note:

  • The Court left open the question of whether it is an abuse of discretion for a trial judge to remind a witness to tell the truth.  Counsel should make sure to object to any such admonitions.  DSH

Wednesday, January 21, 2015

Does an inconsistent statement have to be inconsistent to be admissible as an inconsistent statement? What is the meaning of inconsistent? Is there an answer? Not today.

Darweshi McRoy v. United StatesNo. 12-CF-1797 (Decided January 15, 2015)

Players: Fisher, Thompson, Easterly.  Opinion by Judge Fisher.  PDS for Mr. McRoy.  Trial Judge: William M. Jackson.

Facts: A jury convicted Mr. McRoy of thirteen counts of sex abuse for the alleged abuse of his stepdaughters—D.J. and M.J.—and their friend, E.W.  In 2010, D.J., who was fourteen at the time, gave a videotaped statement at the Child Advocacy Center (“CAC”) describing the first instance of abuse that occurred when she was nine years old.  In her grand jury testimony a year later, D.J. stated that what she said in the CAC statement was true.  At trial, D.J. was reluctant to testify.  When asked by the government to tell the jury what happened, D.J. refused, saying that she did not want to talk about it.  Rather than push her to testify or request that the court order her to testify, the government instead introduced the videotaped CAC statement.  Defense counsel argued that her refusal to testify was not, in fact, inconsistent with her CAC statement, and that the government was introducing the statement simply to bolster its recalcitrant witness’s testimony.  Nevertheless, the court admitted the tape to impeach D.J.’s credibility and to show her demeanor.

Issue 1: Given D.J.’s refusal to testify, was the videotaped statement admissible as an inconsistent statement?

HoldingNo.  The Court did not decide whether the outright refusal to testify is inconsistent with a previous statement (although it did offer some musings).  Instead, the Court held that the government did not lay a sufficient foundation for admitting the video, noting that the government did not push D.J. to answer, did not attempt to lead D.J. through her testimony, and did not request that the court order her to testify.  Consequently, the Court was not satisfied of D.J.’s outright refusal to testify.

Issue 2: Should the court have granted a mistrial after D.J.’s and M.J.’s mother referenced the fact that Mr. McRoy spent time in jail?

Holding: No.  The court issued a curative instruction, and the reference to McRoy having been in jail was brief, non-specific, and not intentionally elicited by the government.

Issue 3: Was there sufficient evidence to convict Mr. McRoy of contact with “M.J’s breast . . . between on or about August 1, 2005 and on or about November 30, 2007, at the residence on E Street., NE,” when M.J. testified that she was not touched until the family moved to a residence on Shepherd Street in 2009?

Holding: No.  Even though the Court gives prosecutors leeway when it comes to children witnesses remembering dates and locations, the jury could not have reasonably inferred from M.J.’s unequivocal testimony that the conduct happened at an earlier time in a different place.

Of Note:
·       The Court did not answer the broader question of whether the refusal to testify is inconsistent with a prior statement.  It is important to continue to litigate the issue and to push the government to use all possible measures, including the sanction of contempt, to get a reluctant witness to give live testimony.
·    The Court rejected the government’s argument for issue 3 that defense counsel was really making a constructive amendment or impermissible variance argument.  The Court held that the argument was rightly framed as a failure of proof argument.

Tuesday, January 20, 2015

A trial court may err by failing to ferret out inconsistencies at a Rule 11 plea colloquy.

Sequarn Tibbs v. United States, No. 13-CF-1425 (decided January 15, 2015)

Players: Thompson, Newman, Ferren.  Opinion by Judge Thompson.  Nancy E. Allen for Mr. Tibbs.  Trial Judge: Herbert B. Dixon, Jr.

Facts: Mr. Tibbs and two co-defendants pled guilty to assault with a deadly weapon (“ADW”), conspiracy to commit ADW, two counts of voluntary manslaughter, and carrying a pistol without a license.  The government proffered the following facts during the Rule 11 plea colloquy: Late one night, the two co-defendants and three co-conspirators went to Clay Terrace, where one of the co-defendant’s mothers—Ms. Wilkins—lived.   The group suspected that Clay Terrace residents had stolen a handgun from Ms. Wilkins’ home.   Armed with guns of their own, the group went to retrieve the gun.  They approached a group of Clay Terrace residents, demanded the return of the gun, and spent the night awaiting its return.  Mr. Tibbs joined the group in the early morning hours.  Later that morning, a Clay Terrace resident returned Ms. Wilkins’ gun.  Satisfied, the group left Ms. Wilkins’ home.  According to the prosecutor, “instead of leaving the neighborhood, [the group] went into a courtyard where a number of Clay Terrace residents were present.”  A gun battle ensued.  Two people died and three people were wounded.

The court did not ask the defendants if the government’s proffer was correct.  Instead, the court asked each defendant about his “participation as far as the shootout is concerned.”  In their responses, Mr. Tibbs and his co-defendants contradicted a key part of the proffer—all three insisted that they attempted to leave the neighborhood, and only went to the Clay Terrace courtyard after a resident called them there.  They also insisted that they drew their guns in self-defense.

At sentencing, Mr. Tibbs’ counsel moved to withdraw the guilty plea, contending there was no factual basis for the plea since Mr. Tibbs described an act of self-defense.  The court summarily denied the motion. 

Holding: No.  The trial judge erred by failing to address whether appellant made a valid assertion of legal innocence.  See Gooding v. United States, 529 A.2d 301 (1987).  The government argued any error was harmless, as Mr. Tibbs had no valid claim of self-defense because he “voluntarily placed himself in a position which he could reasonably expect would result in violence.”  See, e.g., Howard v. United States, 656 A.2d 1106, 1111 (D.C. 1995).  This argument fails because the line of precedent on which it relies deals with defendants who had violent or threatening encounters with specific individuals and then sought out those same individuals.  Here, the government’s proffer made no mention of any threatening or violent encounter, and even if there was such an encounter, the group never sought to reinitiate.  Put simply, the trial court “did not make a full inquiry to ferret out additional details during the plea proceeding to determine whether appellant could avail himself of a self-defense claim.”  The Court remanded for further consideration.    

How to Use/Of Note:
·     The trial court must consider all three Gooding factors and any inconsistencies between the government’s proffer and the defendant’s statement should be fully resolved.  When making a motion to withdraw a guilty plea, make sure to highlight any factual inconsistencies or claims of error supporting the motion.
·     The line of precedent holding that a claim of self-defense is unavailable to defendants who place themselves in situations that could reasonably be expected to result in violence has been cabined.  Now, it is incumbent upon the government to show a recent history of threatening or violent interactions and that the defendant reinitiated contact.  DSH