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.

Friday, February 13, 2015

Flagrant R. 16 violation? Prepare to make your record if you want a mistrial.




Deangelo Foote v. UnitedStates, No. 11-CF-655 (decided February 5, 2015).

Players:  Associate Judges Glickman and Thompson, Senior Judge Ruiz.  Per Curiam Opinion.  Public Defender Service for Mr. Foote.  Trial Judge: Russell F. Canan   

Facts:  A jury convicted Mr. Foote of first degree murder in the shooting death of Kevin Allen.  Three witnesses claimed to see a struggle involving Mr. Foote, the decedent, and several other men in the moments leading up to the shooting, but only one eyewitness – Mr. Dorsey –  testified that he actually saw the shooting, claiming that Mr. Foote used a “Mac Ten” to kill Mr. Allen.  There were serious reasons for a jury to question Mr. Dorsey’s clam, as he had a motive to curry favor with the government, likely had difficult seeing due to glaucoma in both eyes, and the ballistics evidence contradicted his description of where the shooting occurred.

The course of the trial changed, however, when firearms expert Robert Freese testified that only a Mac 10 or 11 could have fired the eight expended cartridges recovered on the scene.  The government’s Rule 16 notice made no mention of this important conclusion, which corroborated Mr. Dorsey’s testimony.  Defense counsel objected and moved for a mistrial.  The trial court found that the government violated Rule 16 but denied the motion for a mistrial because the prosecution did not act in “bad faith.” The judge proposed taking a short break in the trial for the defense to secure an expert, or, in the alternative, striking Freese’s testimony on that point.  Defense counsel elected to strike Freese’s testimony, and the trial court instructed the jury to disregard Freese’s opinion that the Mac 10 fired the cartridges.  He permitted the jury to consider Freese’s testimony that the Mac 10 was one of nine weapons that could have fired them.

Issue:  Did the trial court abuse its discretion when it denied defense counsel’s motion for a mistrial?

Held:  No.  The trial judge properly weighed and considered the three factors that guide a trial judge’s selection of a Rule 16 violation sanction.  As to the first factor –  “the reasons for the nondisclosure” –  the Court rejected Appellant’s claim that the trial court had to declare a mistrial because the prosecutor acted in “bad faith,” noting that  defense counsel asserted otherwise at trial.  The Court also refused to overturn the trial court’s credibility finding.

As to the second factor – “the impact of the non-disclosure on the trial” – the trial judge appreciated the force of Freese’s testimony but proposed an instructional remedy that cured that prejudice.  The Court emphasized that neither defense counsel nor appellant proffered a reason for the Court to find the instruction ineffective.     

As to the third factor – “the impact of the particular sanction on the proper administration of justice in general” – the trial court properly recognized that the government’s witnesses were reluctant to appear, and that a mistrial might render it impossible for the government to secure the witnesses’ testimony again. 

Finally, the trial court also found that defense counsel below did not make an adequate record in support of a request for a mistrial, as she did not “convincingly argue why a mistrial was necessary” and appeared to “agree that instructing the jury to disregard the expert’s testimony” was satisfactory.

Of Note:

  • The Court of Appeals holds defense counsel to an extremely high standard, faulting the defense for not thoroughly describing, as Appellant did on appeal, the numerous ways counsel might have proceeded differently had she been aware of the expert’s conclusions prior to trial (at 20 n.8.)  The Court ignores that the prosecutor’s failure to adhere to its discovery obligations caught defense counsel completely off-guard, and that in this context, defense counsel’s less-than-perfect record is understandable.   Further, defense counsel repeatedly requested that the trial court declare a mistrial, and told the court that if she had known about the expert’s testimony earlier she might have opened on it or cross-examined witnesses differently.

  • The Court did not address appellant’s primarily claim: that regardless of whether the trial court considered each of the three Lee factors, as a matter of law, the trial court had to grant a mistrial.  JB


Anonymous Tip is Sufficiently Reliable to Justify Stop and Frisk


Melvin Jackson v. United States, 13-CF-1450 (Decided February 12, 2015)

Players: Glickman, Fisher, Farrell.  Opinion by Farrell.  Sidney Bixler for Mr. Jackson.  Trial Judge: Robert Richter.

Facts: An anonymous tipster called 911 to report that she had seen a Black man with a gun at the bus stop between Condo Terrace and Fourth Street, S.E.  The man, according to the tipster, was wearing a brown windbreaker and a black hat.  Dispatch radioed out the description, and the responding officer testified to seeing only one person on the block in question—Mr. Jackson.  Mr. Jackson was wearing a black windbreaker and a black hat.  Mr. Jackson was stopped and frisked, and a revolver was recovered from his person.

Issue: Did the anonymous tip provide reasonable suspicion necessary for a lawful stop?

Holding: Yes.  Relying on Prado Navarette v. California, 134 S. Ct. 1683 (2014), the DCCA found that the 911 call bore sufficient indicia of reliability to justify the stop.  The Court found that the contemporaneousness of the report and the fact that the caller used the 911 emergency system weighed in favor of the tip’s reliability. The Court also found that the description was adequately particularized to Mr. Jackson, especially considering there was no one else around (the difference in jacket color was immaterial to the Court).  DH. 

Thursday, February 12, 2015

Government Can Refuse to Grant Immunity if it has a Reasonable Basis to Fear Potential Perjury

Cassandra Lynn Hayes v. United States, No. 13-CF-927 (Decided February 12, 2015).

Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Blackburne-Rigsby.  Matthew G. Kaiser and Allison Lansell for Ms. Hayes.  Trial Judge: Heidi Pasichow.

Facts: This case stems from a night of revelry gone wrong.  Ms. Hayes and her friends planned a night out on the town.  They rented a limousine and reserved a VIP section in a nightclub, and, during the course of the night, consumed a lot of alcohol.  At 2:00 a.m., drunk and hungry, the group left the club to get pizza.  Agitation over seating arrangements caused a kerfuffle, pizza was knocked over, and the complainant lost some teeth.  A jury convicted Ms. Hayes of aggravated assault.  Ms. Hayes’ theory at trial was that another member of the group, Mattie Eubank, assaulted the victim.  Ms. Eubank was prepared to testify to this effect if the government granted her immunity.  The government refused to do so, finding a potential for perjury after debriefing Ms. Eubank.  Ms. Eubank therefore invoked her privilege against self-incrimination.

Issue: Did the trial court adequately inquire into the government’s basis for refusing to grant immunity as required by Carter v. United States, 684 A.2d 331 (D.C. 1996) (en banc)?

Holding: Yes.  The DCCA held that under Carter, the government is not required to show a threat of blatant perjury.  The government must instead show that it has a reasonable basis for not granting immunity, which, for purposes here, includes clear indications of potential perjury and consideration of potential prosecution.

Of Note:

  • The Court called this a “close case” because it toed the “fine line” between clear indications of potential perjury, which is a proper basis to decline immunity, and normal differences in perspective, which is a credibility question that must be left for the jury.  DH

Tuesday, February 3, 2015

Prosecutor’s Explanation for Her Strikes Did Not “Pass Muster,” But Still No Batson Violation


Bobby Johnson v. United States, No. 11-CF-134 (decided January 29, 2015)

Players:  Associate Judges Fisher & Easterly, Senior Judge Nebeker.  Opinion by Senior Judge Nebeker.  Dissenting opinion by Associate Judge Easterly.  Erek L. Barron for Mr. Johnson.  Trial Judge: Michael Rankin.
  
Facts:  A jury convicted Mr. Johnson of various assault and weapons charges stemming from an incident where, according to the government, he shot at a potential government witness in his brother’s upcoming trial.  During jury selection, the prosecutor struck two African American males from the jury panel.  The trial court sua sponte called the parties to the bench and pressed the government for a race neutral explanation.  The prosecutor offered the following explanation for her decision to dismiss the jurors: (1) the first juror was a “soft spoken” older man who, she believed, would get “pushed around in a jury”; and (2) she did not believe that the second, a younger man, would be an “assertive member of the jury” given his “inexperience[] in his youth.” 

The trial court did not agree with the prosecutor’s assessment of the older juror, stating that the explanation did not “pass muster” and that the court did not “get that at all.” “I don’t think I see any of that in the way the older man answered those questions.”  But although the court did not believe the juror’s behavior suggested that he would be “pushed around,” the court concluded that it was not its “job to agree with [the prosecution] or disagree with them.” Instead, the trial court needed to decide whether the government articulated a valid rational for dismissal.  The trial court concluded that there was not yet a “legitimate [Batson] challenge,” but cautioned that its “antenna [was] definitely up.”

Issue 1:  Did the trial court rule on whether the prosecutor engaged in purposeful discrimination (Batson step three)? If the trial judge made such a finding, were his findings clearly erroneous?

Held:  (1) The trial court made findings on Batson prong three and concluded that the prosecutor did not engage in purposeful racial discrimination.  The trial judge first concluded that the prosecutor proffered a non-race based reason for their strike (Batson stage two) – “soft-spoken” and “youthful[]” – and then articulated the Batson stage three legal test: whether the juror’s demeanor exhibited “the basis for the strike attributed to the juror by the prosecutor.”  The trial judge then immediately ruled that the defense failed to demonstrate a “legitimate [Batson] challenge.”  “In context,” the Appellate Court interpreted this as a “ruling on stage three of the Batson process.”

(2) The trial court’s findings were not clearly erroneous.  Although the judge provided little to no explanation for his ruling, and in fact, at one point stated that the prosecutor’s explanation did not “pass muster,” no case “required [him] to make detailed factual findings.”  The trial judge observed the jurors and, based on his observations, concluded that there was no “legitimate Batson challenge.”  This was sufficient.

The Court rejected Appellant’s claim that because the prosecutor asked the jurors no questions in voir dire, her explanations were not credible. The trial judge asked those jurors questions himself, observed their responses “first hand,” and could himself make “critical credibility determinations.”

Of Note:
  • Even though the defense did not raise a challenge to Batson step two (whether the prosecution proffered a race-neutral explanation), the Court noted that being “soft spoken” and “non-assertive” are both race-neutral explanations for a peremptory strike.
  • Although the prosecution stated that it struck one juror because of his youthful age, it did not strike two other jurors who were eventually seated – one who was one year out of high school and one who was a sophomore in college.
  • In dissent, Judge Easterly argued that reversal was warranted.  Below, the trial court stated that it found the prosecution’s explanation for why it dismissed the older juror – because he was “soft-spoken” – incredible.  The trial judge never wavered from this position, and the prosecution did not provide the trial court with any additional arguments.  Because at that point, “the only conclusion for the court to draw . . . was that the government had improperly struck [the juror] on the basis of race,” it was error for the court not to reseat that juror.  JB.


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.