Friday, May 15, 2015

“Is that a gun in your pocket, or are you just happy to see me?”

Michael A. Hartley v. United States, No. 13-CF-653 (decided May 14, 2015).

Players: Chief Judge Washington, Associate Judges Blackburne-Rigsby and Easterly.  Opinion by Chief Judge Washington.  William R. Cowden for Mr. Hartley.  Trial Judge: J. Michael Ryan.

Facts:  On a December afternoon at the Rhode Island Metro station, Mr. Hartley attempted to rob James Galloway-Reed of his cell phone.  After verbal threats failed to convince Mr. Galloway-Reed to surrender his phone, Mr. Hartley placed his hand in his pocket and stated, “this isn’t a joke, I have a gun.”  Unfortunately for Mr. Hartley, Mr. Galloway-Reed did not believe him and began to walk away.  Mr. Hartley followed him to an underpass across the street and began to “physically assault” him.  A bystander called the police, who arrived and apprehended Mr. Hartley at the scene.  No gun was recovered from Mr. Hartley’s person or the surrounding area. 

Mr. Galloway-Reed suffered “minor cuts to his face, a black eye, and swelling.”

Issue 1:  “[W]hether placing one’s hand in one’s pocket and pointing it at someone while verbally threatening to shoot them if they do not comply with one’s demand is sufficient evidence to satisfy the District’s while armed enhancement statute.”

Holding:  No, given these facts.  The Court distinguishes an earlier case, Smith v. United States, 777 A.2d 801 (D.C. 2001), in which the Court found sufficient evidence that the defendant was armed where he had robbed a restaurant with his hand in his pocket, asserting that he had a gun, and was not apprehended on the scene.  Smith is distinguished based on the facts that (a) Mr. Galloway-Reed testified that he did not believe Mr. Hartley had a gun, and (b) Mr. Hartley was immediately apprehended and no gun was found on his person or nearby.  Thus, there was no basis for the jury to infer that Mr. Hartley had a firearm.  

In a footnote, the court also distinguished this case from those in which a witness perceives a physical manifestation of a weapon, imitation or otherwise, that could reasonably be mistaken for a firearm at the time that the crime was committed.

Issue 2/ Holding:  The government conceded that the evidence was insufficient to support Mr. Hartley’s conviction for felony assault because Mr. Galloway-Reed did not suffer significant bodily injury.  CP

Thursday, May 14, 2015

Eureka! Exclusionary rule does not apply in a cold case solved by DNA evidence obtained through an unconstitutional but “good faith” search by a prison employee.

Shepardson R. Blair v. United States, No. 12-CF-1351 (decided May 7, 2015)

Players: Associate Judges Blackburne-Rigsby and Thompson, Senior Judge Steadman. Opinion by Judge Thompson. PDS for Mr. Blair. Judges: Thomas J. Motley (motion judge), Ronna Lee Beck (trial judge)


Based on DNA evidence that linked him to the sexual assault of C.H., Mr. Blair was convicted of first-degree sexual abuse and assault with significant bodily injury.

Issue 1:

While Mr. Blair was incarcerated at a federal prison in 2005 for a DC first-degree theft conviction, a Bureau of Prisons employee drew a sample of his blood so that his DNA profile could be uploaded to a database run by the FBI. Although the DNA Analysis Backlog Elimination Act (“DNA Act”) authorized BOP to collect DNA from inmates convicted of “qualifying” DC offenses, the DNA Act did not authorize it to collect Mr. Blair’s blood in 2005 because the DC government had not yet made first-degree theft a qualifying offense. The FBI discovered in 2009 that Mr. Blair’s DNA matched that of the man who assaulted C.H. in 2005. The FBI shared this information with MPD, and Mr. Blair was arrested for the 2005 assault. In 2011, the trial court issued a warrant compelling Mr. Blair to allow MPD to take another DNA sample. Probable cause to support that warrant depended on the DNA match obtained using the 2005 sample. At trial, the government introduced the DNA evidence derived from the 2011 sample, which, like the 2005 sample, linked Mr. Blair to the 2005 assault.

Assuming that BOP’s collection of the 2005 DNA sample violated the Fourth Amendment, did the trial court err by declining to apply the exclusionary rule and permitting MPD to collect a second sample based solely on information derived from the 2005 sample?

Holding 1:

No.  First, BOP likely acted in good faith when it took the 2005 DNA sample, mainly because: (a) defense counsel acknowledged that he “did not ‘know of any’ bad faith” on the part of BOP; and (b) although the DC government had not yet designated all DC Code felonies (including first-degree theft) as qualifying offenses for purposes of the DNA Act, Congress had already designated all federal felonies as qualifying offenses, suggesting that the unconstitutional search resulted from a negligent, but not bad faith, failure to recognize this difference.

Second, the trial court “reasonably concluded” that the deterrence-related benefits from suppressing the fruits of the 2005 DNA sample would not outweigh its costs, mainly because: (a) DC law was later revised to include “any felony” as a qualifying offense under the DNA Act, obviating any need to “deter BOP personnel from again making th[is] mistake”; (b) several years elapsed between the collection of the 2005 blood sample and the trial; and (c) BOP personnel were “not adjuncts to the law enforcement team.”

You should be able to distinguish this opinion by emphasizing that its holding depends on its peculiar facts, including that prison staff rather than police conducted the unlawful search.

Issue 2:

To be convicted of first-degree sexual abuse, the defendant must force the complainant to engage in a sexual act that involves (in relevant part) “penetration, however slight, of the . . . vulva of another by a penis.” Here, C.H. testified that the assailant pushed “into [her] vagina” with his “non-erect penis” and “tried several times to push himself further inside.” The doctor who treated C.H. after the assault found “a significant amount” of debris in C.H.’s vulva.

Was this evidence insufficient to establish that the assailant penetrated C.H.’s vulva?

Holding 2:

No. C.H.’s testimony that the assailant pushed “into [her] vagina” and tried to push “further inside,” together with the “violent nature of the attack,” permitted the jury to infer that he penetrated her “vulva, if not her vagina,” even though his penis was not erect.

Issue 3:

During the assault, C.H.’s head was repeatedly banged against the ground. The doctor who assessed her at the hospital testified that she had abrasions “all over [her] body,” evidence of “trauma” around her eyes, “a lot” of tenderness in her jaw, neck pain, and a “severe headache.” The doctor ordered CAT scans of C.H.’s head, face, and mandible because he was “concerned” that she might have a “significant head injury,” and he ordered an X-ray of her neck to “rule out bone injury.” These tests apparently found no sign of internal injuries.

Was this evidence insufficient to prove the significant-bodily-injury element of felony assault?

Holding 3:

No. The CAT scans and X-ray the doctor ordered for C.H.’s head and neck, together with the bruising “all over [her] body,” sufficed to show that her injuries were significant, though the issue was a close (“less than obvious”) one.

The Court’s emphasis on diagnostic tests is somewhat at odds with prior decisions holding that significant bodily injury includes only injuries that require medical treatment rather than diagnosis. The opinion should thus be read narrowly to avoid conflict with the Court’s past decisions. The opinion itself suggests several limits to its holding: (1) the tests here were aimed at detecting injury to particularly sensitive body parts, the head and neck; (2) there was medical testimony that the tests were needed to rule out internal injuries; (3) the Court relied not only on the tests, but also on evidence of bruising “all over” C.H.’s body; and (4) the Court recognized that the issue was close despite all these factors.  JM

Friday, May 8, 2015

Prior statements of identification: Quick, do you know the rule?

Eric D. Foreman v. United States, No. 12-CF-2064 (decided April 30, 2015).

Players: Chief Judge Washington, Associate Judge Fisher and Senior Judge Reid.  Jonathan S. Zucker for Mr. Foreman.  Trial judge: Robert E. Morin.

Issue:  At trial, Karin Jackson testified that her son told her, “Eric [Foreman] shot the guy.”  Mr. Foreman challenged the admissibility this statement, which the government sought to admit as a prior statement of identification under D.C. Code § 14-102 (b)(3) (“A statement is not hearsay if the declarant testifies at the trial . . . and is subject to cross-examination concerning the statement and the statement is … (3) an identification of a person after perceiving the person.”).  The defense argued that admission of the prior identification was error because, “hearsay declarants must have personal knowledge of what they assert in order for their declarations to be admissible.”  Ginyard v. United States, 816 A.2d 21, 40 (D.C. 2003).  According to the defense, Ms. Jackson’s grand jury statement “I guess they seen it was Eric” established that Mr. Jackson was not an eyewitness, and was merely relating hearsay or rumor.

Holding:  The trial judge did not err in admitting the prior statement of identification because other portions of the grand jury transcript supported a finding by a preponderance of the evidence that Mr. Jackson was in fact an eyewitness. SF

Read full opinion here.

Wednesday, May 6, 2015

Important ruling on how much of a proffer you need in order to cross on a prior bad act bearing on veracity and on bias. The takeaway: the standard is "a fairly lenient one"

Keith A. Moore v. United States, No. 12-CF-778 (decided April 30, 2015).

The Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor.  Opinion for the Court by Judge Glickman; dissenting opinion by Judge Pryor.  PDS for Mr. Moore.  Trial Judge: Ann O’Regan Keary.

The Facts: In this armed robbery trial, Mr. Moore’s defense was that the complainant, Lorenzo Thomas, fabricated his story that Mr. Moore had stolen $1,000 from him because Mr. Thomas was due in court the next day for a probation revocation hearing for failure to pay restitution, so he needed the cash -- or at least a ready excuse for why he could not pay the restitution. 

Prior to trial, Mr. Thomas had told the government that he had a lot of cash from working at P.F. Chang’s restaurant.  He later recanted that and said the money came from a tax refund and gambling proceeds.  The prosecutor obtained a copy of Mr. Thomas’s tax return, which reflected a large refund, primarily due to Mr. Thomas claiming his little sister as a dependent.  It occurred to the prosecutor that the tax credit might not have been appropriate because Mr. Thomas and his little sister both lived with their mother, who was a federal employee and the more natural person to claim the child as a dependent.  In discussing the tax return with Mr. Thomas, the prosecutor told him that “there was no understanding between him and the government about whether claiming his sister as a dependent was appropriate.” 

Issue: The defense sought to cross-examine Mr. Thomas about whether he had committed tax fraud on two bases:  (1) the defense argued that a false representation on a tax return was a proper subject on cross-examination because it was a prior bad act bearing on Mr. Thomas’s veracity with respect to the contested issues at trial; and (2) cross-examination about the suspected false tax return was probative of Mr. Thomas’s bias because the prosecutor had discussed with him a possible problem with the tax return, and he may have therefore harbored a subjective belief that he was in jeopardy of prosecution, which would give him a testimonial bias.

The judge precluded all inquiry about the tax return, ruling that the matter was too convoluted because it required knowledge of tax rules, Mr. Thomas had used a professional tax preparer and did not complete the return himself, and that even if the return reflected dishonesty, that was not as probative as other fertile grounds the defense had for cross-examination.

Holding: The trial court erred in precluding the desired cross-examination because the defense proffer was adequate to require it on both theories -- prior bad act bearing on veracity, and bias.  The error was harmful at least with respect to the former purpose because Mr. Thomas’s veracity as to the source of the money he claimed the defendant took from him was hotly contested at trial.

Important Rules and Points for Practitioners: 
This is an important case on the doctrine of prior bad act bearing on veracity.  This opinion clarifies that the standard for a defense proffer to permit such inquiry is a “fairly lenient one,” the very same standard as for bias cross-examination (with which judges and practitioners are more familiar).  The proffer need suggest only a “well-reasoned suspicion” that “the witness committed a veracity-impeaching bad act or is biased in the manner asserted.”  Here, the defense proffer of suspicious circumstances warranted permitting the cross-examination as a matter of law, although the defense could not definitively prove dishonesty: although the tax return was prepared by a professional, it included an assertion that the witness provided the factual information that permitted the tax credit; it was undisputed that the witness would not be allowed to take the tax credit if his mother’s adjusted gross income (AGI) that year was higher than his AGI; the witness’s AGI was only $9,245; his mother was a federal employee, so it is likely that her AGI was higher; therefore it is “quite a reasonable suspicion” that the witness provided false information to the tax preparer for personal gain.  This was sufficient.  SF

Thursday, April 30, 2015

Court holds that it is not a robbery to greet a stranger at 11:00 p.m. near the metro by saying, “What, what, what.”

FurlJ. Williams, Arthur Terence Bullock, & Marteese Norman v. United States, Nos. 12-CF-1604, 12-CF-1605, 12-CF-1504 (decided April 23, 2015)

Players: Chief Judge Washington, Associate Judge Fisher, & Senior Judge Reid. Opinion by Judge Reid. Opinion concurring in the judgment by Judge Fisher. Peter H. Meyers for Mr. Williams. Abram J. Pafford for Mr. Bullock. PDS for Ms. Norman. Judge: Gerald I. Fisher.

Facts:  Mr. Chau encountered the defendants around 11:00 p.m. while waiting for a metro elevator on his way home from work. The defendants walked past Mr. Chau, looked back, and then approached him. When the defendants were three to four feet away from Mr. Chau, positioned around him in an arc, two of them said, “What, what, what,” while the third looked around. The defendants did not threaten him. Mr. Chau, who had limited ability to communicate in English, interpreted “[w]hat, what, what” to mean, “do [you] have any money.” Mr. Chau gave the defendants his wallet, and they left.

When the defendants were stopped soon after the incident, Detective Tabron conducted a show-up identification procedure with Mr. Chau. Detective Tabron testified at trial that he had “very little” trouble understanding Mr. Chau’s English, though he testified in the grand jury that he had understood Mr. Chau “[v]aguely.” According to Detective Tabron, Mr. Chau told him that Mr. Williams “was demanding money from him” and “was asking for money” and that Mr. Bullock “was asking for money.”

Issue:  Was the evidence insufficient to show that the defendants took Mr. Chau’s wallet “by violence or by putting him in fear”?

Holding:  Yes. The government must show that a defendant’s actions would “portend an immediate threat of danger to a person of reasonable sensibility.” The only words ascribed to the defendants by Mr. Chau — “What, what, what” — would not cause a reasonable person to perceive an immediate threat of bodily harm. And Detective Tabron’s “hearsay testimony” — that Mr. Chau had told him that two of the defendants demanded or asked for money — did not count for much, as the record left the court “with doubts as to whether Detective Tabron merely assumed what Mr. Chau told him.”

Of note:
  • Cite the court’s reasons for dismissing Detective Tabron’s “hearsay testimony” when arguing that particularly unreliable evidence does not suffice to establish guilt beyond a reasonable doubt.
  • More generally, the court helpfully reminds that insufficient-evidence claims must be assessed in light of the “demanding standard” of proof “beyond a reasonable doubt.”  JM

Wednesday, April 29, 2015

Surprise! Severance denied, convictions (mostly) affirmed.

Joseph Jenkins, Edward E. Warren, Darnell N. Anderson, & James Bates v. United States, Nos. 11-CF-106, 11-CF-162, 11-CF-281, & 11-CF-745 (decided April 23, 2015)

Players: Chief Judge Washington, Senior Judges Pryor & Farrell. Opinion by Judge Farrell. Thomas T. Heslep for Mr. Jenkins. Gregory S. Smith for Mr. Warren. Jason M. Knott for Mr. Anderson. Thomas C. Paynter for Mr. Bates. Trial Judge: Lynn Leibovitz.

Facts:  The government alleged that defendants, who belonged to the same gang, murdered several individuals associated with a rival gang in retaliation for the murder of one of their own. With respect to one of the murders, the government’s evidence showed that Bates, Jenkins, and Anderson — but not Warren — killed English. Warren, however, testified that he killed English without help from the other defendants. Defendants were acquitted of the conspiracy but convicted of various substantive offenses. The five most important issues are discussed below. Others are omitted to avoid boring you.

Issue #1: severance of parties

Warren’s trial attorney, Madden, aggressively impeached Warren’s testimony that he, and not the others defendants, committed the English murder. This prompted Bates, Jenkins, and Anderson to request severance from Warren. They argued primarily that Madden put on a defense fundamentally incompatible with theirs and functioned as a “second prosecutor” when he attacked Warren’s testimony exculpating them. The court held that severance was not required mostly due to the strength of the government’s case and the partial verdict, which showed that the jury was able to keep separate the evidence against each defendant. But the court noted that it might have reached a different conclusion had the government’s evidence been “paper-thin.”

Issue #2: admissibility of double-hearsay co-conspirator statements

The government admitted recorded telephone conversations between unindicted co-conspirators relating to the English murder and other “beefs” involving the rival gang. Defendants argued that these conversations contained impermissible double hearsay, as neither conversation participant had personal knowledge of some of the events they discussed. The court rejected this argument, noting that “courts considering the issue have rejected ‘double hearsay’ or lack-of-personal-knowledge objections” to admission of co-conspirator statements.

Issue #3: right to special-unanimity instruction with respect to the street-gang statute

The street-gang statute criminalizes a gang member’s participation in a felony or violent misdemeanor “for the benefit of” the gang or “in association with” another gang member. Defendants argued that the trial court should have instructed the jury that it needed to be unanimous about whether defendants committed the crimes “for the benefit of” the gang or “in association with” a gang member to convict on either of those bases. The court disagreed, reasoning that these phrases constitute “different means” of committing a single crime rather than “separate elements” of “different crimes.”

Issue #4: propriety of adult sentencing

Warren, 16 years old when indicted, argued that the criminal division of the Superior Court lacked jurisdiction to sentence him as an adult because he was acquitted of the only crimes that had conferred jurisdiction to try him as an adult. The applicable statute provides jurisdiction to the criminal division over a 16-year-old child who has been “charged” with an enumerated crime, including murder, and any other offense “properly joinable with” an enumerated crime. The court held that Warren fell within this provision because, although he was ultimately acquitted of murder, he had been “charged” with murder and other offenses “properly joinable” with the murder charge.

Issue #5: merger of street-gang convictions

The general rule under Blockburger is that convictions merge if, and only if, all elements of one crime are included as elements of the other crime. But in this case, the DCCA announced an important exception to this rule. The court held that multiple street-gang convictions merge if they are predicated on different felonies — felonies that do not themselves merge under Blockburger — that each arose from the same “violent act.”  JM

Read full opinion here.