MATTHEW BROOME, APPELLANT, v. UNITED STATES, APPELLEE.
No. 18-CM-80
District of Columbia Court of Appeals
October 15, 2020
Nоtice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (CMD-11684-17)
(Hon. Lee Satterfield, Trial Judge)
(Argued October 24, 2019 Decided October 15, 2020)
Denise D. Green for appellant.
Adam Braskich, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Anwar Graves, and Chrisellen R. Kolb, Assistant United States Attornеys, were on the brief, for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.
I.
Appellant‘s UE conviction was based on what the government alleged was his unauthorized presence in an employee locker room at the Hospital. Harold Bunch, a Howard University (“University“) campus police officer whose job entailed security for the campus and the Hospital, testified at trial that at around 5:00 a.m. on July 7, 2017, he and another officer found appellant in a locker room, located in the basement of the Hospital, that was reserved for use by employees who worked in the Hospital‘s adjacent main kitchen. Bunch testified that the locker room door had an “employees only” sign and that the basement level of the Hospital is restricted to employees and contractors. He further testified that the basement level can be accessed not only through the hospital loading dock area, but also through a route beginning at the main entrance of the Hospital. He explained, however, that “[t]he main entrance ... was closed” at the time
The officers had to force their way into the locker room, аs it was “barricaded.” Appellant told the officers that he was “just sleeping” and, upon further questioning, said that he “was waiting on a contractor” for whom he was “doing some ... air conditioning work.” Officer Bunch testified that the officers tried to verify that information, but were unsuccessful; they learned instead that there were no contractors working in the area at the time.
The campus police officers eventually contacted the Metropolitan Police Department (“MPD“), and two MPD officers responded to the scene, arrested appellant for UE, and performed a search incident to arrest. They found on appellant‘s person “a clear plastic small bag containing a rock like substance and also a small paper that was folded up and that contained a powdery substance[,]” later determined to be methamphetamine.
After the government rested, defense counsel moved for acquittal, arguing that while the amended information charged appellant with a violation of
II.
As described above, the amended information charged appellant with a violation of
(1) Any person who, without lawful authority, shall enter, or attempt to enter, any private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority
to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemеd guilty of a misdemeanor, and on conviction thereof shall be punished by a fine ..., imprisonment for not more than 180 days, or both ....
Any person who, without lawful authority, shall enter, or attempt to enter, any public building, or other property, or part of such building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof or his or her agent, or being thеrein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof or his or her agent, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine ..., imprisonment for not more than 6 months, or both.
Section 22-3302 does not define “public building,” and we therefore deem it appropriate to look to the history of the UE statute and its legislative history for guidance. See In re W.M., 851 A.2d 431, 441 (D.C. 2004) (“[W]hen statutory language is not dispositive, ... we may look to the legislative history ... to determine the Council‘s objectives and intent.“). Before its amendment in 2009 to establish differing penalties for UE (private building) and UE (public building), the UE statute (earlier codified as
2009) (“Committee Report” or the “Report“) (stating that unlawful entry onto “[p]rivate property will not be jury demandable and [unlawful entry onto] public property will be jury demandable“):
The intent of making unlawful entry onto public property [jury-demandable] is to account for а concern that protesters are often charged with this offense and to balance constitutional protections likely exercised by protestors with the government‘s interest in streamlining the jury system[.]
Id. Thus, in referring to “any public building[s],” the Council had in mind locations where protest activity would enjoy First amendment protection5 (although, as we
In amending the UE statute in 2009, the Council also added, as
In Whittlesey, this court noted that the District‘s UE statute had been amended in 1952 to cover “any public building[.]” Id. at 89. We concluded that it was “plаinly shown by the legislative history of the Act that it was the intent of Congress that the Act extend to all buildings and property owned by the District of Columbia or the United States.” Id. This history is some evidence that when the Council amended the UE statute without defining “public building” or indicating that it intended the term to have a broader meaning than we recognized in Whittlesey, it was satisfied to have that interpretation govern.6 Cf. Zemel v. Rusk, 381 U.S. 1, 11-12 (1965) (reasoning that the fact that Congress “left completely untouched” language from an earlier statute was some evidence that the аdministrative interpretation of the language was the one Congress intended).
We acknowledge that, as a general matter, “whether a given building is public or private ... can depend heavily on the context in which the question arises.” Frey, 137 A.3d at 1002. We are satisfied, however, for the reasons cited above, that for purposes of
Council‘s First Amendment objectives, there possibly are buildings beyond those in the District of Columbia that should be treated as public for purposes of the UE statute.7 It is enough here that we reject the only alternative interpretation of “public building” that appellant urges – any building that is open to the public – because it would significantly impair one of the Council‘s stated goals behind the 2009 amendment of the UE statute: “streamlining the jury system” while “balanc[ing] сonstitutional protections likely exercised by protestors” with that objective.8 Committee Report at 44. That is, if every building that is open to the
public is a “public building,” such that a UE prosecution pertaining to it is jury-demandable, the Council‘s stated goal of streamlining of the jury system would be thwarted.9
Case law establishes that Howard University Hospital is not a “building[] ... owned by the District of Columbia or the United States[,]” Whittlesey, 221 A.2d at 89, but is instead a private facility. This court noted in Burbridge v. Howard Univ., 305 A.2d 245 (D.C. 1973), that in 1967, the Hospital, which had been a federal agency, “was transferred by thе United States to Howard University, a private corporation, for use as a teaching hospital.” Id. at 246. In Ervin v. Howard Univ., 562 F. Supp. 2d 58, 61 (D.D.C. 2008), the federal District Court noted that Howard University Hospital “operates a private hospital facility.” Howard
University likewise is a private institution. See, e.g., McConnell v. Howard Univ., 818 F.2d 58, 69 n.13 (D.C. Cir. 1987) (“It is beyond doubt that Howard University is not a public university.“); Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 70 (D.D.C. 2010) (stating that Howard University is a private educational institution and not a public entity); Remy v. Howard Univ., 55 F. Supp. 2d 27, 28, 30, 31 (D.D.C. 1999) (affirming “Howard University‘s private status,” thereby “reasserting years of similar holdings“).
Further, case law indicates that Howard University is not a state actor such that any protest activities on its grounds that might implicate the UE statute are entitled to First Amendment protections – the rationale behind the Council‘s disparate treatment of public buildings. See Allison v. Howard Univ., 209 F. Supp. 2d 55, 62 (D.D.C. 2002) (as a private corporation, the University is “not subject to all the [constitutional] constraints put on governmental action” (citing Williams v. Howard Univ., 528 F.2d 658, 660 (D.C. Cir. 1976))); Remy, 55 F. Supp. 2d at 28 (holding that the University‘s action were not sufficiently intеrtwined with state action to justify the plaintiff‘s First Amendment claims).10
For the foregoing reasons, appellant has not persuaded us that the trial court erred in declining to treat Howard University Hospital as a “public building” or “public ... property” within the meaning of
III.
The remaining issue appellant raises is whether the government was required to prove, as an element of the charged UE offense under
We reasoned in Wicks v. United States, 226 A.3d 743 (D.C. 2020), that “entry on to private property” is “the first element of unlawful entry” under
To begin with, as already recounted at length in part I, our case law as well as the federal courts of the District have consistently recognized that the Howard University Hospital and the University itself are private entities with private buildings. In light of these holdings, the private nature of the Hospital building is subject to the concept of judicial notice. As we observed in Poulnot v. District of Columbia, 608 A.2d 134 (D.C. 1992), judicial notice may be taken of facts that are “well-known by all reasonably intelligent people in the community,” or “so easily determinable
omitted). We agreed that judicial notice is “a doing away ... with the formal necessity of evidence because there is no real necessity for it.” Id. (ellipsis in original). Some courts have stated explicitly that “a court may take judicial notice of a fact even if it constitutes an element of the offense.” See, e.g., People v. Messenger, 40 N.E.3d 417, 422 (Ill. App. Ct. 2015) (brackets omitted).
In Gaither v. District of Columbia, 333 A.2d 57 (D.C. 1975), this court held that it was error for the trial court tо require the personal-injury-plaintiff inmate to prove that the Lorton Reformatory, where he was injured while complying with a guard‘s order, was owned by defendant District of Columbia. We reasoned that the inmate was not required to prove that fact because “it is clear that a reasonable person with reasonable knowledge of the District of Columbia community would understand that the District own[ed] and operate[d] its own reformatory[,]” in part because of “[m]aterial appearing in the news media almost daily bearing evidence to the fact[.]” Id. at 59.
Here, in addition to the authority provided by the numerous court rulings, the court could take into account widespread publicity about the facilities (first, D.C. General Hospital, and then United Medical Center) that have functioned as the only public hospitals in the District of Columbia. Cf. Robert Siegel, Inc. v. District of Columbia, 892 A.2d 387, 389, 395 n.11 (D.C. 2006) (noting that this court could “take judicial notice of the thorough and sometimes contentious hearings before the D.C. Council questioning the legitimacy of the” Chief Financial Officer‘s study of a proposal to acquire land for a baseball stadium, “though [the hearings are] not a part of the record“; citing authority that “[j]udicial notice may be taken at any time, including on appeal.“).
We note that other courts, too, have taken judicial notice (or have upheld trial courts’ actions in taking judicial notice) thаt a building was public property, even where that status was an element of a charged criminal offense. See Messenger, 40 N.E.3d at 422; People v. Hill, 949 N.E.2d 1180, 1182, 1183, 1184 (Ill. App. Ct. 2011) (applying statute under which a defendant could be found guilty of aggravated battery if he committed battery on a person who is on public property; concluding that it was not error for the trial court to take judicial notice that the Macon County correctional center is public property because the property‘s character as public property is not subject to legitimate dispute); In re Bacon, 49 Cal. Rptr. 322, 329, 333-34 (Cal. Dist. Ct. App. 1966) (taking judicial notice of the fact of common knowledge that Sproul Hall is one of the complex of buildings located on the campus of the University of California at Berkeley, a public trust, and therefore rejecting defense that Sproul Hall is not “a public building of a public agency” for purposes of criminal tresрass statute).13
not come forward with any evidence that the Hospital is a public building that might have been introduced to counter the trial court‘s statement that it was a private institution at the time of the July 2017 incident. Appellant continues to rely solely on the argument that the Hospital is open to the public, which we have concluded does not make it public for purposes of the UE statute.
IV.
Wherefore, the judgment of the trial court is
Affirmed.
Notes
Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property, or part of such dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, ....
We note that our UE opinions have long treated religious or business establishments that are open to the general public as private rather than public buildings. See, e.g., Darab v. United States, 623 A.2d 127, 135 (D.C. 1993) (“[T]he Mosque is private property[.]“); Morgan v. District of Columbia, 476 A.2d 1128, 1129, 1131 (D.C. 1984) (referring to a hotel driveway as “private property“); Kelly v. United States, 348 A.2d 884, 887 (D.C. 1975) (referring to the “private action” of a hotel that had barred the UE defendant); Drew v. United States, 292 A.2d 164, 165-66 (D.C. 1972) (rejecting UE defendant‘s claim that his presence in restaurant he had been asked to leave was an exercise of his “First Amendment right of assembly with his friends in a public place“); McFarland v. United States, 163 A.2d 627, 628-29 (D.C. 1960) (referring to a tavern as a “private building“).