The Public Defender Service for the District of Columbia Summary of Criminal Law Opinions of the District of Columbia Court of Appears
November 1, 2002–February 1, 2003

November, 2002

Right to Present a Defense—Precluding Testimony of Former Co-defendant; Sufficiency—Possession of Cocaine
Christopher Smith v. United States, 01-CM-1482 (November 7, 2002) Wagner, Farrell, Glickman
Reversing the defendant’s conviction for possession of cocaine, the DCCA holds that he was denied his 5th and 6th Amendment rights to due process and to present a defense when the trial judge precluded him from calling his former co-defendant as a witness. The co-defendant, who the government contended had purchased cocaine from the defendant, had entered a guilty plea on the day of trial. The trial court ruled that the co-defendant could not be called as a defense witness because (1) the defendant did not announce pretrial that he would be a witness; (2) the co-defendant had been in the courtroom during some of the government’s evidence; and (3) he had agreed to a factual proffer in pleading guilty that did not support the defendant. The DCCA, reversing, reasons that (1) the timing of announcing the witness did not weigh against the defendant because the witness only became available on the day of trial after his guilty plea; (2) the violation of the rule on witnesses could be remedied by less drastic measures than exclusion; and (3) the witness’s prior statement or susceptibility to cross-examination is not a basis for precluding his testimony. The Court also holds that the evidence was sufficient.

Fourth Amendment—Terry
Ricardo Black v. United States, 99-CM-1403 (November 14, 2002)
Ruiz, Steadman, Glickman
Police had Terry grounds to stop based on (1) an imminent transaction—the defendant had a small object in his hand, the second man had money—that was interrupted by the officer’s arrival; (2) the flight of the second man; and (3) that it was a high drug area.

Expert Testimony; Failure to Instruct on an Elecment; Juror Misconduct
Danny Bellamy v. United States, 99-CF-1173 (November 14, 2002)
Terry, Farrell, Glickman (1) Even assuming that the government’s letter to counsel stating that its drug expert may testify to a "ten bag" policy with respect to intent to distribute cocaine constituted an implied promise that the expert would so testify (he did not), there was no prejudice to this defendant where the evidence showed that he possessed twelve bags. (2) There was no plain error in failing to instruct the jury on the drug-free zone element of the offense of distribution of cocaine within a drug-free zone where no rational jury could find that the crime did not occur within 1000 feet of a school and the jury indicated on its verdict form that it found that it did. (3) The trial judge did not abuse its discretion in holding only a limited post-verdict hearing to question a juror about whether his silence in response to a voir dire question about his contacts with Spingarn High School was truthful. Given the great caution that judges are to exercise in allowing jurors to impeach their own verdict, the court’s decision not to hold a full-scale investigation and hearing was within its discretion.

§23-110—Ineffective Assistance—Hearing; Sufficiency—Misdemeanor Sexual Abuse
John Harkins v. United States, 00-CM-718 (November 21, 2002) Washington, Wagner, Terry
The trial court did not abuse its discretion in denying appellant’s § 23-110 motion without a hearing where the necessary facts were fully contained in the affidavits supporting the motion. Counsel’s performance in failing to cross-examine the complainant to show her financial bias was not deficient (and if deficient, not prejudicial) where counsel mentioned the bias in opening, attempted to elicit the foundation for the bias on cross-examination, and the trial judge indicated that the issue had been brought to his attention in this bench trial. The Court also held that the evidence was sufficient to prove intent to commit a misdemeanor sex offense based on defendant’s interactions with the complainant on the Metro including following her from seat to seat, rubbing his leg against hers, putting his hand on her thigh and touching her buttocks.

Statements—Miranda; Sufficiency—Assault With Intent to Kill; Character Evidence; Instruction—Flight
Patrick DiGiovanni v. United States, 99-CF-93 (November 21, 2002)
Washington, Schwelb, Ruiz
Reversing convictions for AWIK while armed and related offenses, the DCCA holds that the trial court erred in denying defendant’s motion to suppress his statements. The government failed to demonstrate that the defendant knowingly and intelligently waived his rights on these facts which included a defendant of limited intellectual capacity who was having trouble understanding what his rights were and a police officer who embellished the warnings by telling the defendant that the officer didn’t think he needed a lawyer during the interview and that it would be best if he told his side of the story. The Court also holds that (1) the evidence was sufficient to prove AWIK based on the defendant’s firing a gun at close range in the complainant’s direction putting him in the zone of danger; (2) the trial court did not err in ruling that defendant’s character witness could be cross-examined regarding defendant’s prior AWIK arrest; and (3) the trial court did not err in giving a flight instruction.

Winfield
Newman v. United States, 98-CO-1348 (November 27, 2002)
Ruiz, Farrell, Washington
In the second appeal in this case, the Court rules that Judge Alprin abused his discretion in applying Winfield to consideration of appellant’s new trial motion on remand. The Court holds that the risk of jury confusion can never be a basis for excluding otherwise admissible Winfield evidence and that evidence of a prior robbery two weeks before involving some of the same people but not the defendant was admissible even though it did not meet a "signature crime" standard. The correct standard is relevance and close questions must be decided in favor of admissibility because the defendant’s constitutional right to present a defense is at stake.

December, 2002

Sufficiency—Possession of a Prohibited Weapon
Barbara Harper v. United States, 01-CM-75 (December 5, 2002)
Washington, Schwelb, Belson
The Court holds that the government failed to prove that the little plastic flowerpot that the defendant threw at the rear of a car was a dangerous weapon. Without the flowerpot or evidence of its weight in the record there was insufficient evidence to show that it could have produced death or great bodily injury to the occupants of the vehicle.

Motion to Seal Arrest Records
District of Columbia v. Whitney Davis, 01-CT-1553 (December 5, 2002)
Newman, Terry. Steadman concurs.
The DCCA reverses the trial court’s grant of a motion to seal an arrest record for underage possession of alcohol. The trial court had treated the motion as conceded without first examining whether the movant had made a prima facie showing to support sealing the record: showing by clear and convincing evidence that she did not commit the crime or that no crime was committed. She had not.

Disrupting the House of Representatives
Ben Armfield v. United States, 01-CM-274 (December 5, 2002)
Terry, Steadman, Nebeker
The Court affirms defendant’s conviction for disrupting the House of Representatives, rejecting challenges that the statute as applied is unconstitutional because it violates the defendant’s First Amendment rights, that the statute violates his right to due process and equal protection, and that evidence was insufficient to support a conviction.

Motion to Withdraw Guilty Plea; Constructive Amendment of Indictment; Ineffective Assistance of Counsel
Danny Lee Johnson v. United States, 99-CO-1143 (December 12, 2002)
Terry, Washington, Kern
The Court affirms the denial of defendant’s motion to withdraw his guilty plea filed two and one half years after he pled guilty to nine offenses and was sentenced to fifty-six years to life. It holds that there was error in constructively amending the indictment to accept a plea of guilty to robbery rather than the indicted offense of assault with intent to rob, but the error though "plain" did not affect substantial rights in that the penalty for the two offenses was the same. It rejects all claims, including that there was a constructive amendment in the indictment in allowing the defendant to plead guilty as an aider and abettor rather than a principal to a burglary count, that the government violated a supposed agreement with respect to the sentence, and that the defense counsel rendered ineffective assistance at the plea hearing.

Sleeping Juror; Rule of Completeness
Mateen Abdus Samad v. United States, 98-CF-1899 (December 12, 2002)
Glickman, Steadman, Ruiz
After two reports from prosecutors that a juror had been sleeping and the trial court’s own supporting observations, the trial court erred in allowing the juror to remain without inquiring into his wakefulness. The error may have been obvious, but it did not affect substantial rights. The juror apparently slept through testimony helpful to the government, testimony of a witness who by its verdict the jury appears to have discredited. The Court also holds that the trial court did not abuse its discretion in precluding the defendant from introducing part of his videotaped statement after the government had been permitted to introduce another part to rebut the implication that the police had mistreated the defendant. The portion that the defendant sought to introduce showed him distraught at the end of the interview but did not show that he had been mistreated. The rule of completeness was therefore not violated.

Brady; Ineffective Assistance of Counsel; Sufficiency—Aggravated Assault While Armed
Donte Perry v. United States, 98-CF-1338 (December 19, 2002)
Steadman, Reid, Glickman
Defendant was convicted of assault with intent to rob while armed, aggravated assault while armed and related weapons offenses. During trial, and after defense counsel had opened, the prosecutor provided the complainant’s grand jury testimony which arguably could have been used to suppress the complainant’s identification. The Court holds that appellant’s Brady claim—that the government violated Brady by failing to provide the grand jury testimony in time for defense counsel to use it effectively at trial—was subsumed under his ineffectiveness claim—that defense counsel was ineffective for failing to move for a mistrial or to suppress the identification after he received the grand jury testimony—because counsel received the Brady material in time to take either of those actions. On the ineffectiveness claim, the Court remands for trial court consideration of whether there was a likelihood of success on the suppression issue had defense counsel made such a motion after he learned of the grand jury testimony. The Court reverses the conviction for aggravated assault while armed for insufficient evidence that appellant "knowingly or purposely caus[ed] serious bodily injury" to the complainant where the evidence showed the gun discharged accidentally when the complainant struck the weapon to divert it from himself. The indictment did not charge, and the government did not argue, the second prong of the aggravated assault statute involving conduct that creates a grave risk of serious bodily injury.

Indictments; Conspiracy—Wharton’s Rule; Sufficiency—Kidnapping; § 23-110 Motion
Jimmy Pearsall v. United States, 98-CF-317 (December 19, 2002)
Wagner, Terry, Reid
The Court affirms convictions for conspiracy to commit armed robbery, kidnapping while armed, attempted armed robbery, and other offenses, rejecting appellant’s challenges to the indictment and to the sufficiency of the evidence. Assuming without deciding that appellant did not waive his challenge to the poor drafting of the conspiracy count in the indictment for failure to raise it pre-trial, the Court finds no prejudice where the count contained the elements of the offense and adequately protected his interest in notice and avoidance of future prosecutions. It rejects the claim that the conviction for conspiracy must be vacated because it violates Wharton’s Rule. Wharton’s Rule is an exception to the general principle that a conspiracy and the substantive offence that is its object are discrete crimes. It examines the statutory elements and applies to offenses like bigamy, adultery and dueling where the substantive offense is of such a nature as to require necessarily the participation of two people for its commission. The Court holds that it does not apply to conspiracy to commit armed robbery and armed robbery. It also holds that the evidence was sufficient to support a conviction for kidnapping and that the trial court did not err in denying appellant’s pro se § 23-110 motion that was vague and conclusory.

Sufficiency—CPWL
Rufus Price v. United States, 01-CF-934 (December 26, 2002)
Wagner, Terry, Glickman
The Court reverses the conviction for CPWL concluding that there was insufficient evidence to prove that the pistol was operable when it was not fired during the offense, nor pointed at a victim, nor recovered and test-fired. It holds that there was evidence sufficient to support the conviction for assault with a dangerous weapon on an aiding and abetting theory.

Sufficiency—UUV
Vanessa Agnew v. United States, 97-CF-1697 (December 31, 2002)
Ruiz, Nebeker. Steadman concurs in the result.
Reversing the conviction for unauthorized use of a motor vehicle, the Court holds that the government had failed to produce sufficient evidence that the defendant knowingly used the vehicle without the consent of the owner. There was no evidence as to who was authorized to give consent since the identity of the owner was never conclusively established. The circumstantial evidence consisting of a missing vent window covered in plastic, a "hardly obvious" discrepancy in the VIN number, insubstantial evidence of flight and no evidence that the car had been "recently" stolen was insufficient to show the defendant had knowledge that she drove the care without authorization.

Cruelty to Children—Elements; Hearsay—Medical Diagnosis and Treatment Exception
Otis Jones v. United States, 00-CF-1109 (December 31, 2002)
Reid, Wagner, Glickman
Affirming a conviction for cruelty to children the Court holds that malice is not an element of the offense under the current statute, addressing the question left open by its decision in Newby. To satisfy the mens rea requirement the government need only show that a defendant acted "intentionally, knowingly or recklessly." It also holds that, assuming the objection was preserved, the admission of the doctor’s testimony as to what the child/victim said about the cause of his injuries was not error because the statements fell with the medical diagnosis and treatment exception to the rule against hearsay.

Gang Evidence; Improper Closing Argument
Michael Plummer v. United States, 98-CF-1612 (December 31, 2002)
RUIZ, Washington. Schwelb concurs.
Affirming a first-degree murder conviction, the Court discusses, but does not decide, whether the trial court erred in admitting evidence that the killing was gang related, holding that if error, it was harmless. It also holds the prosecutor’s improper appeals to emotions by highlighting in closing argument that the witness was "scared to death" and by appealing to the "community conscious" as well as his reiteration of the gang violence evidence did not warrant reversal.

Sufficiency—Attempt Second Degree Cruelty to Children
Gerald Smith v. United States, 00-CF-1169 (December 31, 2002)
Terry, Steadman, Farrell
Reasoning that an "attempt" crime requires no greater proof of intent than that required for the completed offense, the Court affirms appellant’s conviction for attempt second degree cruelty to children, rejecting the claim that the evidence of intent was insufficient.

January, 2003

Brady
Vincent Benton v. United States, 99-CF-524 (January 23, 2003)
Farrell, Reid, Washington
The Court rejects the claim that the government’s suppression of impeaching evidence that its drug expert Johnny St. Valentine Brown had falsified his credentials in numerous other cases required reversal under Brady. Assuming that the evidence was suppressed by the government, the Court holds that there was no reasonable probability that revelation of the prior lies at trial would have changed the outcome.

Miranda—Public Safety Exception
Calvin Dyson v. United States, 00-CM-634 (January 23, 2003)
Terry, Nebeker. Ruiz concurs
Affirming the denial of a motion to suppress the statement, "that was my weed, but I don’t have a gun," the DCCA holds that the officer was justified in asking the arrestee where the gun was under the public safety exception to Miranda. The officer’s objectively reasonable belief that the defendant had a gun based on his observation of the defendant tugging at his waistband as he ran from the police after dropping a paper bag and the officer’s belief that he saw the butt of a gun in the waistband as well as the suspected presence of the gun hidden in the alley through which the defendant had run were sufficient bases for the question to fall within this "narrow" exception.

Ineffective Assistance of Counsel
Sherman Dobson v. United States, 00-CO-243 (January 23, 2003)
Per curiam. Opinion by J. King. Schwelb concurs. Washington dissents.
In divided opinions the DCCA affirms the denial of defendant’s § 23-110 motions. With respect to the first motion claiming that counsel was ineffective for promising in opening statement that he would call alibi witnesses but then failing to do so, Judge King reasons that the lawyer made a reasonable tactical choice in foregoing presenting the alibi witnesses, applying factors for assessing unfulfilled promises by defense counsel. Judge Schwelb, concurring, takes into account the nearly fifteen year delay in filing the motion, and reasons that although some of defense counsel’s justifications for his tactics were unpersuasive, the performance was not sufficiently deficient to warrant reversal. Judge Washington would reverse. With respect to the second motion alleging that counsel was ineffective for failing to interview and make available for trial the accomplice who arguably would testify that he committed the armed robbery with another man, the Court holds that there was no error to deny the motion without a hearing on the basis that it was a "second and successive" motion. The unsworn statement of the accomplice was insufficient evidence of actual innocence to overcome the cause and prejudice standard for failure to raise the claim in the initial motion.