BALLISTIC IMAGING EVIDENCE — DISPOSITIVE? NOT EXACTLY …
The Court of in Williams v. U.S., decided on June 27, 2019, reiterated the legal standard for admissibility and reliability of the ballistic scientific evidence.
Williams was convicted of felony murder and one of key pieces of evidence against him was a testimony of the ballistic expert who had matched the toolmarks of a weapon found in the defendant’s home against the bullet shells found at the crime scene. The expert at trial had testified with certainty that the ballistic imaging was a 100 percent match.
The Court of Appeals held that there was a lack of scientific data to be able to conclude with a 100 percent certainty that the ballistic imagining matched and thus admissibility of the expert testimony was an error however not a reversible error.
The central analysis by the appellate court was whether firearms-related toolmarks are unique: specifically, whether a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others. There is no data-based foundation for such pronouncement and with any certainty.
Moreover, not enough is known about the variabilities among individual tools and guns or how much similarity is necessary for a given level of confidence in the result…READ MORE.
ASSAULT CHARGE REVERSED DUE TO 6TH AMENDMENT VIOLATION
The Court of Appeal in Green v. U.S., decided on June 13, 2019, reversed a simple assault conviction due to defendant’s 6th Amendment violation.
Green was arrested after allegations of assault by his girlfriend, there was a contemporaneous 911 tape shortly after the assault reporting such.
Green alleged at trial self-defense and that the complainant was the first aggressor.
Defense counsel used portions of the 911 tape recording to challenge the credibility of the complainant. The government in turn admitted the entire 911 tape into the record and defense counsel requested re-direct of the witness based on the entire 911 tape being admitted. It was denied giving rise to this appeal due to the violation of the defendant’s confrontation clause.
In criminal cases, a defendant’s right to confront the witnesses against him is protected by the 6th Amendment and this right is satisfied if defense counsel is given an opportunity to cross-examine the government’s witnesses or in the case to re-cross.
Generally the government who bears the burden of proof presents its affirmative case through direct examination of its witnesses. Defense counsel is then given the opportunity to cross-examine the government’s witnesses with a limited scope to those items raised by the direct examination,
The government then gets to re-direct, based on defense’s cross examination again limited in scope to the cross examination by defense. There is no constitutional right to recross-examine a witness, since the scope of the redirect examination is limited to matters which were first raised on cross-examination ..READ MORE.
REVERSAL OF CONVICTIONS DUE TO CONSTITUTIONAL VIOLATIONS
The Court of Appeals in Hooks v. U.S., decided on May 30, 2019 reversed weapons and drug charges due to the defendant’s constitutional violations mainly the 4th Amendment.
Hooks and few friends were in a barbeque gathering and an unmarked narcotics police car with was surveying the neighborhood and pulled in front the group. The officers zeroed on Hooks and one of them ordered Hooks to stand up from his lawn chair where a bag of marijuana exceeding a legal limit was protruding from his pocket and search incident to the arrest recovered a handgun.
The Court expounded that the Fourth Amendment protects individuals against all “unreasonable searches and seizures.” Moreover, this inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.
The right extends out to individuals attending springtime barbeques in every quadrant of the District, the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Hooks moved to suppress all tangible items seized by the police as fruits of an illegal seizure and search at trial. The trial court sided with the government that either (1) Mr. Hooks had not been seized when the police commanded him to stand up and he complied, or (2) pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the police had reasonable articulable suspicion to briefly stop Mr. Hooks because, by virtue of where he was sitting in his lawn chair, he was violating D.C. Code § 22-1307 (2013 Supp.) by “obstructing [a] walkway.” READ MORE.
RECENT COURT OF APPEALS: ASSAULT CONVICTION REVERSED
The Court of Appeals in White v. U.S., decided on May 9, 2019, reversed an aggravated assault conviction while defining and expanding on the elements needed for conviction.
There are three levels of assault charges in the District:
- Simple Assault: the lowest level requires minimal or no injury punishable by 180 days in jail.
- Assault with “significant bodily injury”: the intermediate assault level requiring by definition an injury that requires hospitalization or immediate medical attention, punishable by three years of jail time.
- Aggravated assault, serious bodily injury generally defined as: bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty – punishable by 10 years of jail.
The issue in the case was whether the victim was sufficiently injured due to assault to justify the aggravated assault conviction and the Court held that although injuries were significant they were not serious enough to justify such conviction.
The Court noted that there is a high threshold of injury required for aggravated assault as the punishment is nearly twenty times as long as that for simple assault.
Thus, for aggravated assault, injuries must be life-threatening or disabling including stab wounds, intense burns, and broken bones. The victims should require urgent and continuing medical treatment (and, often, surgery), carried visible and long lasting scars, and suffer from other consequential damage, such as significant impairment of their faculties .. READ MORE.
DC COURT OF APPEALS: MERE TOUCH NOT AN ASSAULT
The DC Court of Appeals in Hernandez v. U.S., in overturning an assault conviction provided much needed clarity and definition to the current DC Assault Statute.
Section 22-404 of the statute provides two forms of assault:
(a)(1) Whoever unlawfully assaults, or threatens another in a menacing manner, shall be fined and or be imprisoned not more than 180 days, or both.
(2) Whoever unlawfully assaults, or threatens another in a menacing manner, and intentionally, knowingly, or recklessly causes significant bodily injury to another shall be fined or be imprisoned not more than 3 years, or both. Significant bodily injury means: an injury that requires hospitalization or immediate medical attention.
Subsection(a)(1) which is generally referred to as simple assault in DC is broad and essentially makes all forms of unwanted touching an assault under the statute.
Here, Herndandez and the complainant had got into an argument over a soccer match, and the complainant was irritated that Hernandez had touched his arms while discussing the match. The complainant had warned the defendant not to touch his arm again, and after the defendant touched the complainant again a scuffle had ensured.
The trial court had held that the initial touching of the arm by the defendant as unwanted constituted an assault even though it was not forceful or violent. The Court of Appeals disagreed holding that a mere touch of the arm as here without more is not criminal and would not fall under the statute.
The essential elements of simple assault as codified by the caselaw are that the government must prove that defendant:
- With force or violence, injured or attempted or tried to injure the complainant, the actus reus element;
- Intended to use force or violence against the complainant, the mens rea; and
- Had the apparent ability to injure the complainant at the time.
REVERSAL DUE TO JURY SELECTION RACIAL DISCRIMINATION
The Court of Appeals in Haney v. U.S., decided on April 25, 2019, reversed and remanded the defendant’s weapons’ conviction based on the government’s peremptory jury strikes disproportionately excluded black jurors and black male from the jury pool.
It is well established according to Batson rule that purposeful and intentional discrimination based on race or gender in the exercise of peremptory challenges is strictly prohibited.
The Supreme Court had articulated in Batson a three-step process for analyzing discriminatory claims:
- There must be a prima facie showing that a peremptory challenge has been exercised due to race or gender;
- The prosecution then must rebut or provide a race-neutral basis exercising the peremptory strike;
- The trial court then must analyze the submissions by the parties and determine if the defendant has shown purposeful discrimination.
The burden of persuasion and proof rests with the moving party opposing the strike showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.
Applying the Batson guidelines, here the prosecutor had used used seven out of nine (or 78%) of her peremptory challenges to strike black jurors.
The entire venire consisted of only fourteen black jurors out of thirty-six, and the prosecutor had used six of her peremptory challenges to strike black males one after another. Thus, the trial record revealed a sizable statistical disparity directed at discriminatory impact against black jurors. Prima facie case of discrimination was met and the first element satisfied.
LEGAL ELEMENTS FOR DC PERJURY & OBSTRUCTION OF JUSTICE
The Court of Appeals in Wilson v. U.S., decided on October 11, 2018, reversed and remanded Wilson’s conviction for Perjury as well as the Obstruction of Justice.
In the District a person if guilty of obstruction of justice if that person:
(1)Knowingly uses intimidation or physical force, threatens or corruption to persuade another person, or by means of a threatening letter or communication endeavors to influence, intimidate, or impede a juror in the discharge of the juror’s official duties; or an officer in any official proceeding, with intent to:
- Influence, delay, or prevent the truthful testimony of the person in an official proceeding;
- Cause or induce the person to withhold truthful testimony or a record, document, or other object from an official proceeding;
- Evade a legal process that summons the person to appear as a witness or produce a document in an official proceeding; or
- Cause or induce the person to be absent from a legal official proceeding to which the person has been summoned by legal process; or
(2) Harasses another person with the intent to hinder, delay, prevent, or dissuade the person from:
- Attending or testifying truthfully in an official proceeding;
- Reporting to a law enforcement officer the commission of, or any information concerning, a criminal offense;
- Arresting or seeking the arrest of another person in connection with the commission of a criminal offense; or
- Causing a criminal prosecution or a parole or probation revocation proceeding to be sought or instituted, or assisting in a prosecution or other official proceeding; or…
CUSTODIAL INTERROGATION: RECENT COURT OF APPEALS DECISION: DC CRIMINAL DEFENSE LAWYER
The Court of Appeals in Toler v. U.S., decided recently determined whether revealing of a social security number during a custodial interrogation was in violation of Miranda rights.
Appellant Toler had argued that his firearm convictions must be reversed because he was required to reveal his social security number without a prior Miranda warning, and also that his convictions for possession of unregistered firearms must be reversed because the government failed to prove an element of the offense, namely that the firearms were not “antique” firearms.
In general, routine questions related to the booking process are not considered interrogation under Miranda, for such questions are not normally likely to elicit incriminating answers.
Thus questions regarding the name, address, height, weight, eye color, date of birth, and age of the suspect all fall within the booking data or biographical information as the questions regarding appellant’s name, phone number, and social security number were not likely to elicit incriminating information.
Moreover, the MPD’s booking forms request a social security number, among other information. Thus unless the eliciting of the social security number would be inculpatory or would be considered an admission or incriminating disclosure – such may be routinely asked and obtained without Miranda violation.
Therefore, asking an individual who had been arrested on drug charges a question about drug use or a suspect in a statutory rape case about his date of birth or in a tax fraud case a social security number – all will be in violation of Miranda as disclosure would be incriminating.
The questions in these cases were closely tied to elements of the crimes in question whereas the in the present case a social security number is not an element, or even related to an element, of any of the offenses in which Toler was convicted of.
The licensing of the firearm Statute in DC makes an exception “antique firearm” – and here Toler argued on appeal that the government was duty bound to prove his weapon was not antique. The Court disagreed.
In DC firearm is defined as: any weapon, regardless of operability, which will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is intended to, expel a projectile or projectiles by the action of an explosive; the frame or receiver of any such device; or any firearm muffler or silencer; provided, that such term shall not include: (A) Antique firearms . . . .
DC COURT OF APPEALS REVERSAL: DC STALKING STATUTE INTERPRETATION: DC CRIMINAL LAWYER
The DC Court of Appeals in Coleman v. U.S., decided on March 7, 2019, reversed an attempted stalking conviction as it analyzed further and defined the DC Stalking Statute and the requisite sufficiency of evidence to withstand a conviction.
Coleman essentially argued on appeal that the government failed to prove that he possessed the requisite mental state in that he should have known a reasonable person in the complainant’s circumstances would fear for her or another’s safety, or feel seriously alarmed, disturbed, or frightened. Or suffer emotional distress in at least two of the occasions that allegedly comprised his course of conduct.
The DC Stalking Statute provides that: a person commits the crime of stalking when he or she purposefully engage[s] in a course of conduct directed at a specific individual:
(1) With the intent to cause that individual to feel seriously alarmed;
(2) That the person knows would cause that individual reasonably to feel seriously alarmed; or
(3) That the person should have known would cause a reasonable person in the individual’s circumstances to feel seriously alarmed.
The Statute defines to engage in a course of conduct as meaning that on two or more occasions to:
- Follow, monitor, place under surveillance, threaten, or
- Communicate to or about another individual or to engage in certain other statutorily specified conduct.
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