Monday, August 3, 2015

Stalking Gets You Nowhere

Ronald L. Atkinson v. United States (decided July 30, 2015).

Players: Associate Judges Beckwith and McLeese, Senior Judge Nebeker.  Opinion by Judge Nebeker.  Judith L. Wheat and Marlon C. Griffith for Mr. Atkinson.  Trial Judge:  Robert I. Richter

Facts: This is a case of love gone wrong.  Ronald Atkinson and the complaining witness, Ms. Roebuck, had an intimate relationship that subsequently soured.  Ms. Roebuck moved on, Mr. Atkinson did not.  Mr. Atkinson repeatedly attempted to contact Ms. Roebuck even though she wanted nothing to do with him; she eventually obtained a civil protection order against him.  Contrary to the order, Mr. Atkinson did not stay away.  As a result, he was charged with and convicted of one count of stalking and six counts of violating the terms of the CPO.  

Issue:  Did the trial court err when it merged alternative theories of liability with respect to the stalking charge?  

Holding: Yes, but the error was harmless.  At the government’s urging, the trial court instructed the jury that to be guilty of stalking, it needs to find that Mr. Atkinson “knew or should have known that his conduct would cause Halima Roebuck or a reasonable person in Halima Roebuck’s circumstances” to fear for her safety.  This was error because the inquiry for stalking is objective, considering how a reasonable person in the complainant’s shoes would feel.  The instruction here “impermissibly reduced the government’s burden to convict by allowing the jury to find appellant guilty if he caused Ms. Roebuck to subjectively but unreasonably experience the enumerated emotional harm.”  However, applying the Chapman standard of harmless error, the court found that because the jury was presented with “overwhelming evidence” of Mr. Atkinson’s “objectively frightening behavior,” his conviction must be affirmed.  DH

Wednesday, July 29, 2015

DCCA Limits Carjacking and Government’s Ability To Elicit That a Defendant Could Have Conducted Independent DNA Analysis

James A. Corbin v. United States (decided July 23, 2015)

The Players: Judges Blackburne-Rigsby and Beckwith, and Senior Judge Belson. Opinion by Judge Blackburne-Rigsby. PDS for Mr. Corbin. Trial Judge: Stuart G. Nash.

Facts:  A driver stopped to ask a man for directions.  The man unexpectedly got into her car and offered to direct her in exchange for a ride.  The driver, though nervous, went along with this.  The man gave her false directions and eventually told her to stop, at which point he tried to grab the car key and then pull her out of the car.  When another car approached, the man ran off.  The man was ultimately identified as Mr. Corbin through blood left behind in the car.  Mr. Corbin was charged and convicted of carjacking for this unsuccessful attempt, and subject to a 7-year mandatory minimum, as well as a subsequent incident in which a car actually was taken.

Issue 1:  Does the D.C. carjacking statute encompass attempted carjackings?

Holdings 1: No.  The carjacking statute is violated when a car is taken, not if there was merely an attempt to take it. Such attempt must, instead, be charged under the general attempt statute, which carries a maximum of 5 years. 

The Court was asked to construe the statute defining "carjacking," which states:
A person commits the offense of carjacking, if, by any means, that person knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempts to do so, shall take from another person actual possession of a person’s motor vehicle.
The question was what act “or attempts to do so” modifies. Mr. Corbin argued that it modifies the means of taking that precede the phrase, not “shall take.” If so, then the statute does not treat an attempted carjacking the same as a completed carjacking. The Court engaged in extended analysis and found both the language of the statute and its legislative history ambiguous.  It therefore applied the rule of lenity to conclude that a carjacking requires a completed taking.  The evidence at trial did not establish that the car was ever taken, since the driver voluntarily followed the man's directions, and he fled before he successfully took control of the vehicle.

(A separate paragraph of the carjacking statute defines an "armed carjacking" to include attempts, so this ruling only applies to unarmed carjackings.)

Issue 2:  May the court allow evidence that a defendant has a right to conduct independent DNA analysis when the defense has not asserted that the government's analysts were biased?

Holding 2:  No (but harmless error). The government may not adduce evidence that the defendant could have opted for an independent DNA analysis unless the defendant cross-examines the government’s expert in a manner that suggests she is biased or withheld evidence from the defense.  Here, defense counsel did not attack the government’s DNA analyst as biased by suggesting (during cross-examination and closing argument) that she made the case a low priority, used unreliable protocols, and took insufficient notes to show her work. “There is a distinction between a bias attack and an attack on the competence of an expert or the validity of protocols. Biased methods carry a degree of intentionality that incompetence and unreliability do not.” The Court thus limited the reach of its prior decisions in Teoume-Lessane and Gee, which had allowed evidence of the defendant's right to conduct DNA testing in response to defense assertions of bias.  SF

Seizure occurred when police asked man about his identity for 10 minutes; suspicion that he lied about his name didn't justify the stop

Kelby R. Gordon v. United States (decided July 23, 2015).

The Players:  Associate Judges Beckwith and McLeese, Senior Judge Ferren.  Opinion by Senior Judge Ferren.  Anna B. Scanlon for Appellant.  Trial Judge: Harold Cushenberry, Jr.

The Facts: Four police officers entered the small foyer of a building in a “high crime” area where four men, including Mr. Gordon, were hanging out.  The whole building smelled like burned marijuana, but the officers did not see the men smoking.  One officer asked Mr. Gordon for identification.  Mr. Gordon said he had none and did not live in the building.  He told the officer his name was “Khalil Mikes” and gave his date of birth.  In response to more questioning, he said he had been locked up in D.C. before.  The officer used his laptop to search for Mr. Gordon’s record, but found nothing.  He continued to question Mr. Gordon about how he spelled his name, whether he used aliases, etc.  This went on for ten minutes or so.  Mr. Gordon eventually gave his real name.  The officer finally retrieved Mr. Gordon’s data, discovered he had an outstanding warrant, and placed him under arrest.  Mr. Gordon admitted he had weed on him, was searched incident to arrest, weed was found and he was subsequently charged with possessing it.     

Holding: Mr. Gordon was seized unlawfully, without reasonable, articulable suspicion that he had been engaged in criminal activity.  As to seizure, the Court held that a man questioned about his identity for ten minutes would not reasonably believe that he could simply walk away.  Gordon was seized because he submitted to what amounted to a show of police authority consisting of repeated questioning accompanied by computer database searches.  The police’s focus on him would lead a reasonable person to think that he would not be allowed to leave until his identity and record were confirmed by the searches.  Nor was the seizure justified.  The Court rejected the idea that giving a false name (even when combined with “high crime area” and other soft factors) gave grounds for a detention because people can give a false name merely because they are afraid, not because they are committing a crime. SF

Tuesday, July 28, 2015

Ineffective assistance of trial counsel reversal

Travis Haney v. United States (decided July 23, 2015).

The Players: Judges Glickman and Blackburne-Rigsby, Senior Judge Reid.  Opinion by Senior Judge Reid.  PDS for Travis Haney.  Trial Judge: Ronna L. Beck.

The Facts: Trial counsel had failed to file a motion to suppress Mr. Haney’s custodial statement on Miranda grounds even though the videotape showed that Mr. Haney asserted his right to remain silent after the detective kept accusing him of the shooting.  The detective simply ignored Mr. Haney’s invocation of Miranda and kept grilling him.  The government introduced at trial an excerpt from the video – the portion immediately following the Miranda violation – in which Mr. Haney stated that he knew that the victim had snitched on “his man” (Deangelo Foote) and put him in prison, that he could see the victim’s fear of him in her eyes every time he passed her on the street, and repeatedly calling the victim a b*tch.  The prosecutor highlighted Mr. Haney’s remarks in her closing and rebuttal arguments, arguing that Mr. Haney was motivated to kill the victim because she had snitched on his friend, and quoting his hateful language.  During post-conviction proceedings, the trial court ruled that trial counsel had rendered deficient performance by failing to move to suppress a statement that would have been suppressed had a motion been filed, but denied a new trial under the second prong of Strickland, ruling that Mr. Haney had failed to show a reasonable probability of a different outcome had the statement been suppressed. 

The Holding: The DCCA disagreed, holding that Mr. Haney had met the Strickland prejudice standard.  The Court reinforced several important rules of law for applying this standard, including:  1) the trial judge erred by relying on her personal estimation that admission of Mr. Haney’s statement was not prejudicial. She thought that the victim’s identification was compelling, that defense-favorable evidence was not, and that the motive established by Haney’s statement did not hurt him because it was a weak motive. The question under Strickland is not what evidence the judge found persuasive, but what evidence reasonably could have influenced the jury; and 2) Haney was prejudiced by the government’s emphasis on his damaging words in closing and rebuttal arguments. SF

Important Ruling Under Edwards and Shatzer; Improper Comments in Closing Arguments

Gregory Trotter & Ernest Pee v. United States (decided July 23, 2015)

The Players: Judges Glickman and Blackburne-Rigsby, and Senior Judge Reid. Opinion by Judge Glickman. PDS for Mr. Trotter.  Steven R. Kiersh for Mr. Pee. Trial Judge: Gerald I. Fisher.

Facts:  Two check-cashing stores were robbed by two men with similar descriptions.  During one robbery, a proprietor of the store was shot in the head and killed.  The shooter left behind a hat and cell phone, both of which were tied to Mr. Trotter.  The robbers were seen leaving the robbery in a car that belonged to Mr. Pee's girlfriend, and there was testimony that Mr. Pee was driving the car that day.

Mr. Pee was arrested for armed robbery and murder. While in police custody, he first waived his Miranda rights but later asserted his right to counsel. The questioning ended. He was then charged, appointed counsel, and detained at D.C. jail pending trial. Five months later, while still in pretrial detention, he was arrested and charged with a different armed robbery. Police read him his Miranda rights, and he waived them and answered questions. 

The trial judge denied a motion to suppress Mr. Pee's statements on the ground that five months had passed between the invocation and the second interrogation, that Mr. Pee had received counsel in the interim, and that he waived his rights at the outset of the second interrogation.

Issue 1: Did the police violate Edwards v. Arizona, 451 U.S. 477 (1981), by initiating the second interrogation of Mr. Pee after he had asserted his right to counsel during the first interrogation?

Holding 1:  Yes, the trial court should have granted the suppression motion, but the error was harmless.

Under Edwards v. Arizona, once a suspect asserts his Miranda right to counsel, like Mr. Pee did during the first interrogation, the interrogation must cease and any resumption of the interrogation must be at the suspect’s instigation, not the police’s. The police may not try to recommence the interrogation even about a different crime, Arizona v. Roberson, 486 U.S. 675 (1988), or even after the accused has actually met with counsel in the interim, Minnick v. Mississipi, 498 U.S. 146 (1990).

In Maryland v. Shatzer, 559 U.S. 98 (2010), the Court recognized an exception to Edwards: it held that police may reinitiate the interrogation after a suspect invokes his right to counsel if he has been released from custody and is in the community for at least 14 days. If he is serving a prison sentence when police interrogate him, his “release” by the police into the general prison population counts as well. Here, however, although 5 months had passed between the first and second interrogations, Mr. Pee had neither been released, nor was he returned to serving a sentence. Instead, he was continually held in pretrial custody for the very charges that were the subject of the police interrogations. The trial court erred in ruling that a pretrial detainee was the equivalent of a prisoner returned to the prison population.

Shatzer treated a sentenced prisoner more like someone returned to the community because when he goes back to general population he returns to his “accustomed surroundings and daily routine” and regains the same control over his life as he had before the interrogation. The prisoner would feel less at the mercy of police because his sentence – pre-existing and fixed by a judge – could not be affected by his police interrogators. By contrast, a pretrial detainee is still subject to charging and trial, will not feel at home in jail, and will therefore feel more at the mercy of police interrogators, much like one experiencing Miranda custody at the police station.

Issue 2:  Did the prosecutor's improper comments during closing arguments render the trial unfair?

Holding 2:  Some of the prosecutor's comments were improper, but none establish reversible error in light of the trial court's curative instructions and the strength of the government's case.

It was improper for the prosecutor to say in rebuttal argument that defense counsel was trying to distract the jury from the evidence because he knew the jury would convict his client. It is a no-no to refer to defense counsel’s supposed motives and beliefs, rather than merely refuting his argument.

It was also improper for the prosecutor to start her rebuttal by saying lawyers are taught in law school to argue the facts if they are good for them, the law if that is good for them, and if neither is good, to “deny, deny, deny,” implying that is what the defense is doing.
It was not improper for the prosecutor to respond to defense counsel’s veiled accusation that she had coached witnesses (“Ms. [prosecutor] managed to get them to say” they were “traumatized and all these other excuses”) with the implication that she would never do such a thing. SF

Monday, July 20, 2015

Non-citizens Have a Right to a Jury Trial on Misdemeanor Charges if Deportation Will Be a “Virtually Inevitable” Consequence of Conviction

Jean-Baptiste Bado v. United States (decided July 16, 2015)

Players: Associate Judges Fisher and Thompson, Senior Judge Ruiz. Opinion by Judge Thompson. Concurring opinions by Judge Thompson and Judge Ruiz. Dissenting opinion by Judge Fisher. D.C. Law Students in Court for Mr. Bado. Trial judge: Stuart G. Nash. Motions judge: Jennifer M. Anderson.

Facts: Mr. Bado, a political asylum applicant from Burkina Faso, was charged with three counts of misdemeanor sexual abuse of a child based on allegations that he touched his teenage stepdaughter. He demanded a jury trial on these charges, arguing that trial by jury was required because the possible consequences of conviction—including deportation pursuant to federal immigration laws—were so severe. The motions judge denied that request. After a two-day bench trial, Mr. Bado was convicted of one count of misdemeanor sexual abuse of a child, sentenced to the statutory maximum of 180 days’ incarceration, and ordered to register as a sex offender.

Issue: Does a non-citizen defendant have a Sixth Amendment right to a jury trial on misdemeanor charges that are presumptively petty offenses for Sixth Amendment purposes where the misdemeanor qualifies as an “aggravated felony” under federal immigration law, meaning that conviction would “virtual[ly] inevitabl[y]” result in deportation?

Holding: Yes. When a non-citizen is charged with a misdemeanor that qualifies as an “aggravated felony” under federal immigration law, such that conviction would result in deportation, the offense “must be deemed a serious rather than petty crime for purposes of the Sixth Amendment,” and the defendant is entitled to a jury trial.

Of Note:
  • The majority opinion does not reach the question whether any offenses that carry a potential consequence of deportation for non-citizens but do not constitute “aggravated felonies” “should be deemed serious for purposes of the Sixth Amendment jury trial right.”
  • In a separate concurrence, Judge Thompson clarifies her position that the fact that a conviction will render a non-citizen deportable is not enough to trigger the Sixth Amendment jury trial right. In her view, it is the categorical unavailability of relief from deportation for those convicted of “aggravated felonies” that shows that Congress regards these offenses as “serious in the Sixth Amendment sense.”
  • Senior Judge Ruiz’s concurrence takes the broader view that because the Sixth Amendment analysis “looks to the ‘severity of the maximum authorized penalty’ in assessing whether an offense is serious and warrants the right to a jury trial,” an offense is “serious” if the immigration statute authorizes deportation as a consequence of conviction, regardless of “whether implementing officials have discretion to grant relief to certain limited classes of individuals or are precluded from doing so.” 
  • In dissent, Judge Fisher explains his belief that deportation is not “the type of penalty that counts for purposes of determining the right to a jury trial.” MW

Wednesday, July 15, 2015

Breaking: DCCA grants rehearing en banc to consider mens rea for threats

The D.C. Court of Appeals has granted rehearing en banc in the case of Carrell v. United States, 80 A.3d 163 (D.C. 2013), in which a Division of the Court (over a strong dissent from Judge Schwelb) held that a threats conviction requires proof only that the defendant intended to utter the words that constitute the threat, but not that he intended the words to be threatening.  In our original blog post on Carrell, which you can find here, we noted that this case was "ripe for en banc review" given that there had been two lines of conflicting precedent in D.C.  It seems likely that the DCCA was holding the rehearing petition in order to see what the Supreme Court did in a case involving the federal threats statute, Elonis v. United States, 135 S.Ct. 2001 (2015), which we blogged about here, as the DCCA's order specifically asks the parties (and PDS as amicus) to brief the impact of Elonis.  The Supreme Court held in Elonis that the federal threats statute requires proof that the defendant intended to threaten (or perhaps was reckless), so that will be highly persuasive authority for the DCCA.  For now, the Division's opinion in Carrell is vacated, and it is essential to argue in any threats case that proof of an intent to threaten is required.