RECENT COURT OF APPEALS DECISION: VALIDITY OF MIRANDA WARNING

The Court of Appeals in IN RE S.W., decided on September 17, 2015, reversed conviction due to faulty Miranda rendering post arrest interrogation inadmissible. SW after trial was convicted of: (1) carjacking, (2) attempted unauthorized use of a motor vehicle, (3) unlawful entry of a motor vehicle, and (4) threats to do bodily harm. The post arrest interrogation was deemed admissible as the trial court deemed confession valid and Miranda warning appropriate, the Court of Appeals disagreed as closer analysis of the Miranda warning administered and the dialog before the warning was deemed too coercive. Specifically, the appellant argued that the detective’s pre-Miranda remarks rendered the subsequent Miranda warning ineffective as a matter of law, that the confession that proceeded was not knowing, intelligent, and voluntary waiver. The Court of Appeals agreed. The detective’s pre-Miranda remarks were as follows: I know you know why you’re up here, so I ain’t gonna play the ‘I don’t know’ crap, all right? I’m gonna give you an opportunity to give your version of what happened today, because . . . I stand between you and the lions out there. . . . [W]e have a lot of things going on out there, and
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Categories: Criminal Defense.

THE DOUBLE JEOPARDY CLAUSE: RECENT COURT OF APPEALS DECISION

The Court of Appeals in STANLEY MOGHALU v. UNITED STATES, decided on August 13, 2015, clarified preserving the double jeopardy defense to retrial for appellate review. Stanley Moghalu was charged with unlawful possession of a firearm (“UPF”) and carrying a pistol without a license (“CPWL”). The case at the trial level was declared a mistrial twice as the jury could not “return a unanimous verdict that would be anything other than forced.” The first trial the court granted mistrial at the request of defense counsel, and the second trial the court granted a mistrial over defense objection that anti-lock instructions were warranted before declaring mistrial. However, significantly, the defense did not assert a double jeopardy defense after the first or the second trial, leading to a third trial, which the jury then did in fact convicted unanimously resulting in this appeal. Appellant essentially argued on appeal that the second trial Judge abused his discretion by declaring a mistrial when mistrial was in fact unnecessary and could have been avoided — “[t]he prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant”. Appellant then leaps to the conclusion that the third trial was thus barred by
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Categories: Criminal Defense.

RETURN FOR REWARD DEFENSE; NEW COURT OF APPEALS RULING

The Court of Appeals on a second remand on August 20, 2015, in LIHLAKHA v. U.S., clarifies further the return for reward defense for receiving stolen property (RSP) conviction. Lihlakha was convicted at trial for RSP and her defense and arguments on appeal focused on return for reward defense. The Court on the first review outlined for the first time the elements needed to successfully assert the defense: Specifically, the defense will be satisfied if the evidence shows that: “(1) The reward had been announced, or was believed to have been announced, before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on return of the property.” The Court on the most current review of the case focused more closely on the burden of showing by the defense on these defensive elements as well as the burden on the government to disprove the defense elements asserted. Specifically, because the return for reward defense relates to the defendant’s intent, an element of
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Categories: Criminal Defense.

DC ASSAULT; RELEVANT STATUTE AND RECENT CASE LAW

The Court of Appeals in IN RE D.P., APPELLANT, decided on August 13, 2015, reversed D.P.’s conviction for aggravated assault and felonious assault (assault with significant bodily injury). The charges stemmed from an assault by a group of three teenagers on a metro bus on M.G., another student. Thus the government charged M.P., I.C. and D.P. with aggravated assault and assault with significant bodily injury. M.P. pled out to simple assault, the case against I.C. was dropped and D.P. proceeded to trial and was convicted on the two counts. Before the Court reversed D.P.’s convictions, the Court outlined the three levels of assaultive conduct under the DC Statute: –The District has a three-tiered classification system of assault. Simple assault is the lowest-level offense. A misdemeanor, it does not require that any actual injury be incurred and requires only general intent to perform the assaultive act. Assault with significant bodily injury, commonly referred to as “felony assault,” is the intermediate crime. As its name suggests, it requires the defendant to cause significant bodily injury and to do so “intentionally, knowingly, or recklessly.” Aggravated assault is the highest-level assault crime recognized in the District. To obtain a conviction for aggravated assault, the
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Categories: Criminal Defense.

Deferred Prosecution v. Deferred Sentencing Agreements and the Arrest Record – solicitation cases and other misdemeanors in the District of Columbia:

With the serge of recent arrests in the District of Columbia (DC) for sexual solicitation and the undergoing sting operations with undercover police offices it is important to understand the elements of the crime as well as some of defenses available as discussed in depth: http://www.familylawdc.com/dc-prostitution-solicitation-lawyer/ However, this post addresses some of the diversionary options available short of trial and possible consequence on the arrest record, which ideally should be expunged right after the completion of the prosecution particularly for the possible negative inferences they may draw for the current and future employers, among others, as arrest records are public and readily searchable. The deferred prosecution agreement (DPA) is the most ideal scenario if offered. With this agreement, generally the government requires 32 hours of community service and few consecutive negative drug test results within a four-month period after which the cases will be formally dismissed in court. With the deferred sentencing agreement (DSA), the agreement requires a guilty plea up front and a period of time to return back for sentencing – in which if all conditions satisfied – the government would not object to the guilty plea being withdrawn and sentencing vacated and case dismissed. As far as
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Categories: Criminal Defense.

OHIO v. CLARK — RECENT SUPREME COURT RULING ON CHILD TESTIMONY

The U.S. Supreme Court in Ohio v. Clark decided on June 18, 2015, addressed admissibility of the non-testimonial statements in the context of child abuse investigation. Clark was trusted with care of his two children L.P., age 3 and A.T. eighteen months while their mother was engaged in prostitution at the direction of Clark. L.P. was observed at school with a black eye, belt marks on his back and stomach, and bruises all over his body. A.T. after further investigation had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. Clark was convicted of several criminal counts at the trial based on the statement of L.P. to his teacher inquiring as to how the child had received the injuries. The Supreme Court in delivering the opinion carefully reviewed all current cases decided and relating to out of court testimonial v. non-testimonial statements. The Confrontation Clause prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” However, a statement qualifies as testimonial if the primary purpose of
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Categories: Criminal Defense and Family Law.

ELONIS v. U.S.: FIRST AMENDMENT PROTECTED SPEECH OR CRIMINAL CONDUCT?

The US Supreme Court on June 1, 2015, issued a ruling reversing and remanding the lower court convictions for transmitting threats via Facebook messages. Elonis, an amusement park employee who was going through separation and custody battle with his wife at the time was charged with transmitting threatening messages under 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The lower court conviction was based on jury instructions, which did not require proof of intent to issue threats but only that a reasonable person would have interpreted the statements as treats, a kind of strict liability civil negligence interpretation of the Statute, which the Supreme Court fiercely disagreed with. The Court held as the Statute does not require or specify a mental state (intent) such does not completes the analysis. That is: “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” The Court specifically held that the typical criminal mens rea and scienter must also exist and be proven before conviction for threats can sustain. That criminal conduct
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Categories: Criminal Defense.

THE DISTRICT COURT STRIKES DOWN A PROVISION IN THE DC HANDGUN LICENSING REGULATION AS UNCONSTITUTIONAL

The U.S. District Court in Wrenn v. Linear, issued on May 18, 2015, granted the plaintiff’s preliminary injunction to strike the District’s “good reason/proper reason” statutory requirement before issuing license to carry handguns. In response to the District Court’s decision in Palmer v. Dist. of Columbia, allowing carrying pursuant to the Second Amendment for self defense purposes an operable handgun outside the home (blogged on 9/24/2014), the District redrafted the handgun statute consistent with the decision but adding other limiting language subject of this litigation and the current ruling. Specifically the amended language provided (D.C. Code § 22-4506(a)): “The Chief of the Metropolitan Police Department (“Chief”) may, upon the application of any person having a bona fide residence or place of business within the District of Columbia, or of a person having a bona fide residence or place of business within the United States and a license to carry a pistol concealed upon his or her person issued by the lawful authorities of any State or subdivision of the United States, issue a license to such person to carry a pistol concealed upon his or her person within the District of Columbia for not more than 2 years from the
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Categories: Criminal Defense.

COMMUNITY EXCEPTION TO WARRANTLESS SEARCHES — RECENT COURT DECISION

The Court of Appeals in Steven Davis v. U.S., in an opinion issued on February 26, 2015, expounded and analyzed the doctrine of “community exception” to warrantless search and seizure. Davis was convicted for possession of two zip lock bags of cocaine found in plain view and in his vehicle. The issue on appeal was whether the office had entered Davis’ vehicle pursuant to reasonable exercise of community caretaking function rather than pursuant to a criminal investigation. Factually, the police were alerted when a vehicle was found blocking the entrance to a private apartment building lot. Upon responding, the officer found Davis at the driver’s seat unconscious, EMT were contacted and responded, Davis was woken up and was responsive and exited the vehicle. While Davis had exited the vehicle and was being checked over by EMT and reorienting, the officer had entered the vehicle to move it — at which time observed in plain view two zip lock bags on the floorboard. On appeal, Davis essentially argued that the plain-view doctrine required that the officer be lawfully in a viewing position, here the office had no legal basis to enter the vehicle to move it as Davis had regain consciousness
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Categories: Criminal Defense.

PARENTAL FITNESS DEFINED; RECENT COURT OF APPEALS DECISION

The DC Court of Appeals in IN RE PETITION OF S.L.G & S.E.G.; D.A. (No. 14-FS-73) decided on March 5, 2015; once again reiterated and cemented the presumption of parental fitness in a contested adoption proceedings. The case is significant as the Court defined and expanded on the definition of “fitness” and outlined the legal criteria the trial court must use in rendering an opinion. The appellant biological mother contested the adoption petition by the foster family S.E.G. and S.L.G. Evidence established that the child was in the foster home for over two years, well integrated in the home and bonded to the foster parents and family. The foster family also according to testimony met the child’s mental and developmental needs, by all account and petitioner were fit and proper to adopt the child. The biological mother on the other hand exhibited mental health and behavioral issues that raised concerns as to her ability to safely care for the child. The mother also struggled with sobriety and was not compliant with services. She also consistently made poor decisions, which could comprise safety of the child. The appellant challenged the trial court ruling essentially on two grounds: that the court made
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Categories: Family Law.