Wednesday, March 25, 2015

Sorry, marijuana decriminalization is not retroactive

Robert E. Washington v.United States, No. 13-CM-1331 (Decided March 19, 2015)

Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Fisher.  William T. Morrison for Mr. Washington.  Trial Judge: John F. McCabe.

Facts:  On July 5, 2013, Mr. Washington was charged with possessing 1.8 grams of marijuana and drug paraphernalia—five days before the Marijuana Possession Decriminalization Amendment Act of 2014, D.C. Law 20-126, was introduced before the City Council.  The act decriminalized “the possession of transfer without remuneration of marijuana weighing one ounce or less,” as well as the possession of paraphernalia associated with such possession.  Marijuana Decriminalization Amendment §§ 101(a) and (c), 409(a), 61 D.C. Reg. 3482, 3482 (2014).  The act became law on July 17, 2014.  61 D.C. Reg. 8250 (2014). 

Issue:  Does the Marijuana Possession Decriminalization Amendment Act of 2014 apply retroactively to offenses committed before July 17, 2014?

Holding:  No.  The act was passed against the backdrop of the general savings statutes, 1 U.S.C. § 109 (2012) and D.C. Code § 49-304 (a) (2012 Repl.), which provide that the repeal or amending of statutes will not affect offenses committed under those statutes unless the legislature expressly provides as much.  The DCCA held that “[t]here is no language in the Marijuana Decriminalization Amendment or its legislative history that expressly states or necessarily implies that the statute applies retroactively to” offenses committed before July 17, 2014.  CP

Tuesday, March 17, 2015

DCCA declines to open Pandora’s box

Brian Lamont Copeland v. United States, No. 13-CO-746 (decided March 12, 2015).
Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Ferren.  Opinion by Judge Fisher.  Jenifer Wicks for Mr. Copeland.  Trial Judge: Anthony C. Epstein.

Facts: Brian Copeland was convicted of first-degree sexual abuse, and his conviction was affirmed on appeal.  Mr. Copeland subsequently filed a motion for relief under D.C. Code § 23-110, alleging that his trial attorney had performed deficiently during jury selection.  At trial, Mr. Copeland’s defense attorney had conducted voir dire at the bench, and the trial judge had turned on the “husher,” a white noise machine intended to prevent those present in the courtroom from overhearing conversations at the bench.  Mr. Copeland remained seated at defense counsel’s table and did not participate in voir dire.  His attorney did not advise him of his right, pursuant to Super. Ct. Crim R. 43(a) and the Fifth and Sixth Amendments, to be present at the bench during voir dire.  When Mr. Copeland challenged this oversight by filing a § 23-110 motion in Superior Court, the trial judge rejected his motion without a hearing.

Issue 1: Assuming that the performance of Mr. Copeland’s trial attorney was deficient, did Mr. Copeland establish that he had been prejudiced by that performance?

Holding 1: No.  Mr. Copeland filed an affidavit in support of his § 23-110 motion, but the affidavit did not claim that Mr. Copeland would have exercised his right to be present at the bench during voir dire and did not assert that his trial attorney should have conducted voir dire differently or challenged any other jurors.  Consequently, Mr. Copeland failed to show that he had been prejudiced by his attorney’s conduct.

Issue 2: Can Mr. Copeland’s failure to show prejudice be excused because the trial court’s voir dire procedures violated Appellant’s right to a public trial and, thus, amounted to a structural error in which prejudice must be presumed?

Holding 2: No.  Unlike situations where the public is excluded from the courtroom during trial, the common practice of conducting individual voir dire at the bench is not a structural error.  It is worth noting that if the Court had ruled that defense counsel’s behavior at trial amounted to deficient performance and that it was a structural error, most criminal defendants who were recently convicted in D.C. would have valid § 23-110 claims.

Of note: The Court’s opinion highlights the importance of identifying a specific form of prejudice when filing § 23-110 motions.  The opinion also suggests that challenges to the trial court’s voir dire procedures are unlikely to garner defendants relief if trial counsel has not lodged a timely objection.  CK

Monday, March 16, 2015

When can a witness make an ID from surveillance video?

Darius Young v. United States, Nos. 12-CF-1860 & 12-CF-1861 (decided March 5, 2015).

Players:  Associate Judges Fisher and Thompson, Senior Judge Belson.  Opinion by Senior Judge Belson.  PDS for Mr. Young. Trial judge:  Ronna L. Beck.

Facts:  Darius Young was arrested for a daytime carjacking that was caught on surveillance video.  The carjacker’s face was obscured in the video, but his coat was visible.  Police found and arrested Mr. Young after tracking the signal of an iPhone left in the stolen vehicle.  Although Mr. Young was wearing a coat similar to the one in the video, the stolen SUV was nowhere near him and he did not have the iPhone.  At trial, the government relied on identification testimony from a social worker who had worked extensively with Mr. Young and his family the previous year and who had last seen Mr. Young after the date of the carjacking.  The social worker testified that she recognized the carjacker in the surveillance video as Mr. Young based on his face, his stance, his gait, and his jacket.    

Issue:  Was it an abuse of discretion to admit lay opinion testimony from a witness who knew Mr. Young that Mr. Young was the person depicted in a surveillance video of a carjacking?

Holding:  No.  The lay opinion identification testimony was admissible under Sanders v. United States, 809 A.2d 584 (D.C. 2002), because the social worker had had “extensive contact” with Mr. Young, and because her superior ability to identify Mr. Young’s face, stance, gait, and jacket was helpful to the jury.   MW.

Thursday, March 12, 2015

No Abuse of Discretion in Denying Missing Evidence Instruction Where the Government Loses “Potential Evidence,” and No Error in Concurrent Intent Instruction

Donell Washington v. United States, No. 12-CF-2022 (decided March 5, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  PDS for Mr. Washington.  Trial judge:  Russell F. Canan.

Facts:  Donell Washington was convicted of first degree murder while armed, three counts of AWIKWA, and related weapons offenses arising from the death of Stanley Dawson, who was shot on a playground while three of his friends were present.  Two of the three friends were also struck by bullets.  Two witnesses identified Mr. Washington as the shooter, although they provided inconsistent testimony about whether the shooter’s face was covered.  After the shots, nearby resident Andrea Williams saw someone run across the street, not from the direction of the playground, and try to climb the fence by her house by putting “his hands on [it.]”  She did not see his face, did not see a weapon, and could not tell whether or not his face was covered. 

MPD evidence technicians swabbed Ms. Williams’s fence for DNA, but the swabs disappeared before they were tested.  At trial, Mr. Washington requested a missing evidence instruction, which would have permitted the jury to infer that the swabs were unfavorable to the government.  The trial court denied the request.

At the government’s request, the judge gave a “concurrent intent” instruction.  The jury sent a note asking what the instruction meant when it said the jury “may infer that the [appellant] intended to kill/injure/harm any other person in the zone of harm/danger.”  The judge answered that if the jury found that Mr. Washington shot at Mr. Dawson and created a “zone of danger around [him] with intent to kill, injure, or harm him,” that it could conclude that he also “intended to kill others in the zone of danger.”    

Issue 1:  Did the trial court abuse its discretion in refusing to give a missing evidence instruction about the lost DNA swabs?

Holding 1:  No.  The judge did not abuse his “considerable” discretion in refusing to give a missing evidence instruction, because the swabs were merely “potential evidence” and there was no way to know whether they would be inculpatory or exculpatory.  Even assuming error in denying the instruction, it was harmless, where the defense was able to address the issue in closing, cross-examine the evidence technicians, and call Mr. Williams as a witness.  

Issue 2:  Did the trial court abuse its discretion by providing a concurrent intent instruction that was an inadequate statement of law, and by failing to give the jury an appropriate clarification in response to its question?

Holding 2:  No.  Where the evidence showed that the appellant fired up to ten shots “at four people standing in close proximity to one another,” striking three of them, the concurrent intent instruction was “an adequate statement of the law and supported by evidence in the record,” and the response to the jury’s question was sufficient to remedy any confusion.

Of Note:

  • On the missing evidence issue, the Court emphasizes that a trial court’s “considerable” discretion in determining whether to give a missing evidence instruction reflects a “recognition that a missing evidence instruction carries with it several inherent dangers.”  Slip Op. at 11. 

  • In concluding that the judge’s response to the jury question about the concurrent intent instruction was sufficient, the Court noted that the response “[o]n its face . . . appeared to be ‘fairly balanced’ and did not ‘single out one aspect of the case,’” and that “the jury did not express continuing confusion after the clarification was issued.”  Slip Op. at 18.  MW

Wednesday, March 4, 2015

Got drugs in your car? Don't pass out in it while blocking traffic. Things won't end well.

Davis v. United StatesNo. 13-CM-817 (decided February 26, 2015)

Players:  Associate Judges Glickman and Thompson, Senior Judge Pryor.  Opinion by Judge Thompson.  Trial judge John McCabe. 

Facts:     Mr. Davis moved to suppress evidence found in his car by a police officer who had entered the car in order to move it after Mr. Davis had been removed from the car by emergency medical technicians.  The case began when the property manager of an apartment building flagged down the police, reporting that there were two unconscious people in a car  in the apartment building parking lot.  The car was running and was parked in the middle of the lot, blocking other cars.  The windows were rolled down and the officer saw a woman asleep in the front passenger seat and appellant, who appeared to be unconscious (open eyes, slumped over the steering wheel, and apparently not breathing) in the driver’s seat.  The police called for an ambulance.  When it arrived, the woman “woke up” and left the car and the EMT’s assisted appellant – who had started to come to – out of the car in order to attend to him.  The police officer testified that he then went into the running car both because he needed to find ID and because he needed to “secure” the car because it was blocking other vehicles.  While Mr. Davis testified to a different version of events at the hearing, the trial judge credited the police officer, specifically finding that he went into the car in order to move it out of an area where it was blocking traffic.  He then saw drugs in plain view. 

Issue:  Whether the police officer violated the Fourth Amendment by entering Mr. Davis’s car.  

Held:  Mr. Davis had a protected privacy interest in the car even though he had left it unattended when the EMTs escorted him to the ambulance.  The police officer’s warrantless entry, however, was justified by the community caretaking exception to the warrant requirement.  The trial court credited the police officer’s testimony that he got into the car to move it out of the way of traffic, not to search for drugs -- a factual finding supported by the record.  Therefore, the entry was “divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” Cady v. Dombrowski, 413 U.S. 433, 441 (1973), and justified under the community caretaking exception.  JF.

Monday, March 2, 2015

Bench trial? Request special findings... or else.

Saidi v. United StatesNo. 14-CM-0136 (decided February 26, 2015)

Players:  Associate Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation.  Opinion by Judge Kravitz.  Trial judge Ronna L. Beck. 

Facts:     Mr. Saidi was convicted of simple assault for punching his downstairs neighbor, who had come to Mr. Saidi’s apartment in response to sounds of yelling and fighting.  The neighbor had called up the stairs, heard Mr. Saidi’s roommate respond that she was “not okay,” and entered the apartment.  After ascertaining that Mr. Saidi’s roommate was afraid of spending the night in her apartment alone with Mr. Saidi, the neighbor went downstairs to make up a bed in his apartment to enable the roommate to spend the night there.  The neighbor then returned and the woman and her friend went downstairs.  When Mr. Saidi went to follow them, the neighbor stepped in his way and told him to sit down.  Mr. Saidi then punched the wall and told the neighbor to “get out.”  The neighbor said he would do so when Mr. Saidi calmed down.  Mr. Saidi then punched the neighbor once in the chest.  The two men then yelled at each other for a few minutes until the police arrived and arrested Mr. Saidi. 

Issue 1:  Was the evidence sufficient to support the conviction given the defense-of-property defense that was raised?

Holding 1:  The Court held that the evidence was sufficient to support the verdict, outlining the contours of a defense-of-property defense before coming to its conclusion.  The Court noted that at common law, a person lawfully in possession of real property may use a reasonable amount of force to eject a trespasser, but is guilty of assault if he uses more force than reasonably necessary.  However, a person may not use force to eject someone who has entered or remained on the property to address a “private necessity” – that is, someone whose presence is or reasonably appears to be necessary to prevent serious harm to a third person, unless the actor knows or has reason to know that the person for whose benefit he enters (or remains) is unwilling that he take such action.  Given the governing law, the government needed to prove not only that Mr. Saidi punched his neighbor, but also one of three possibilities:  (a) the neighbor was not a trespasser at the time of the punch, (b) Mr. Saidi punched the neighbor for a reason other than ejecting him from the apartment, or (c) Mr. Saidi used more force than was reasonably necessary to get the neighbor to leave.  The Court found that the evidence was sufficient for a reasonable fact-finder to find (each) of those scenarios beyond a reasonable doubt.

Issue 2: Did the trial court make adequate “special findings,” as requested by defense counsel pursuant to Super. Ct. Crim. R. 23(c)? 

Holding 2:  No.  The Court reversed and remanded because the trial court did not make specific findings on any of the identified issues, all of which were disputed and raised by the defense-of-property defense.  The Court noted that if special findings had not been requested pursuant to Rule 23(c), the trial court’s verdict would have been affirmed.  But, the Court held, “where a party makes a timely request for special findings and, in the course of the proceedings, identifies with sufficient clarity the matters on which he seeks such findings, the trial judge must articulate findings specific to all issues of fact and law materially in dispute between the parties and fairly raised by the evidence and the party’s request.”  The Court remanded the case to the trial court so that the judge could make the requisite findings.

Of Note:
  • Special findings can and should be requested in non-jury criminal cases pursuant to D.C. Super. (Crim.) R. 23(c) and in juvenile delinquency cases pursuant to D.C. Super. (Juv.) R. 31(a).  The criminal rule requires that the request be made before verdict (“on request made before the general finding”).  The juvenile rule does not specify, but the safer route would be to make a pre-verdict request.  
  • There is no downside to requesting special findings in bench trials because, as the Saidi Court noted, trial judges are presumed to know the law and their general verdicts come with a presumption of correctness.  Furthermore, on appeal of a general verdict, findings will be implied in support of the judgment if the evidence, viewed in the light most favorable to the government, warrants them.  Therefore defense counsel can only benefit from requesting special findings from a trial court, because the findings may reveal that the trial court misapprehended the law or made a factual finding unsupported by the record.    
  • While the Court makes mention of the need for a party who requests special findings to “identif[y] with sufficient clarity the matters on which he seeks such findings,” the Court does not appear to view that burden as onerous:  in Saidi, it merely pointed to the arguments made by defense counsel in his closing, in which he asserted the defense-of-property defense.  JF.

Read full opinion here. 

Thursday, February 19, 2015

Elvis pleased to hear that “wiggling” and shouting during arrest not an assault.

Jarrell A. Gayden v. United States, No. 13-CF-814 (Decided February 5, 2015)

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Reid.  Opinion by Reid.  George E. Rickman for Mr. Gayden.  Trial Judge: John McCabe.

Facts:  After telling Mr. Gayden to “move along” form an alley where drug activity was suspected, MPD Officer Kimball called for backup.  This prompted Mr. Gayden to say, “Are you calling for back-up, I would if I were you before what happen[ed] to your partner happens to you[;] you can get hit.”  Kimball took this comment to refer to an earlier incident in which Mr. Gayden’s brother had wrestled with Kimball’s partner and pointed two guns at his head. Kimball arrested Mr. Gayden for threats.  Although initially handcuffed without incident, once his mother and other spectators appeared, Mr. Gayden began to “wiggle” and  “pull away” from the officers, and began shouting obscenities and telling the police to get off of him.  The police subdued Mr. Gayden and transported him to the police station.  The trial court convicted Mr. Gayden of attempted threats and assault on a police officer.

Issue 1:  Did the trial court properly conclude that the “small amount of wiggling and pulling away somewhat [by Mr. Gayden] . . . combined with the cursing and loudly screaming at the crowd and the police officers” constituted an assault on a police officer under D.C. Code § 22-405 (b)?

Holding: No.  The DCCA holds that “the little bit of wiggling and pulling away” after Mr. Gayden had already been restrained in handcuffs without incident was insufficient to constitute “resisting” under the APO statute.  Nor was the combination of this “wiggling” and the shouting of Mr. Gayden and the onlookers sufficient to established “intimidation” under the statute because: (1) the crowd was not incited to try to free Mr. Gayden from custody; and (2) no reasonable police officer in Kimball’s position (with five additional police officers present) would have feared the crowd or felt intimidated by the possibility of an attack as the result of Mr. Gayden’s words.    

Issue 2:  Did the trial court properly conclude that Mr. Gayden’s statement “Are you calling for back-up, I would if I were you before what happens to your partner happens to you, you can get hit” constituted an attempted threat?

Holding: Yes. The DCCA holds that the words intentionally and explicitly invoked a prior incident of violence and suggested that the same, or worse (crediting Officer Kimball’s testimony that to “get hit” meant to be killed) would happen to Kimball, and would convey fear of bodily harm to an ordinary hearer.  CP.