Edward TOWLES, Appellant, v. UNITED STATES, Appellee.
No. 14-CF-509.
District of Columbia Court of Appeals.
Submitted Jan. 6, 2015. Decided June 4, 2015.
These witnesses were impeached in different ways, but in the aggregate they related incriminating actions and statements of appellant in marked contrast to the spare testimony of Parrish placing the blame on a stranger. Their testimony formed the vast bulk of the prosecutor’s argument to the jury, while the impeachment of Parrish with his prior statements was mentioned in the prosecutor’s initial closing, but not his rebuttal, as part of a broad attack on the weakness of Parrish’s story and appellant’s alibi defense. On this record, all told, we cannot say that “the probability of a different result [if the claimed error had not taken place] is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” Dominguez-Benitez, supra, 542 U.S. at 83, 124 S.Ct. 2333 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Affirmed.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Kamliah House, Elana Suttenberg, and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and KING, Senior Judge.
THOMPSON, Associate Judge:
After the trial court denied his motion to suppress and after a stipulated trial, appellant Edward Towles was convicted of unlawful possession of liquid phencyclidine (“PCP”), carrying a pistol without a license, unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition. He argues on appeal that the trial court (1) erred in denying his motion to suppress and (2) unlawfully imposed a three-year minimum sentence after ruling that his prior involuntary manslaughter conviction was a “crime of violence” for purposes of
At the hearing on the motion to suppress, Jordan Katz, the six-year veteran of the Metropolitan Police Department (“MPD”) gun recovery unit, testified that he, two other MPD officers, and an Alcohol, Tobacco and Firearms (“ATF”) agent, all armed, were driving in an unmarked car with its windows down on the evening of November 6, 2013, near the intersection of Howard Road and Bryan Place, S.E. All the officers were wearing vests with the word “Police” across the front and back, in letters that could be read by someone standing outside the car. The officers and ATF agent were looking for guns but were not acting on any citizen call or informant tip at that time. Officer Katz testified that the gun recovery unit had “recovered a lot of guns over the years” in the area and that he personally had arrested “probably over ten” people with guns in the three or four blocks near Bryan Place, including a “handful” of people “in the last few months.”
Officer Katz, who was sitting in the front passenger seat, saw appellant walking with another man. Appellant was wearing a “bulky” green coat or jacket, and his hand was in his right pocket. As the officers’ vehicle got closer to the two men, Officer Katz saw appellant look over his right shoulder at the officers’ vehicle. Appellant then turned his head away, took his right hand out of the coat pocket, and put his hand “under his coat toward his right waistband” and “just moved it around.” Appellant then “cut[] behind” his companion and moved away from him, turning onto Bryan Place (which runs for only one block) and walking “much quicker” than he had been when Officer Katz first saw him. Officer Leo, who was driving, turned the police vehicle onto Bryan Place in order to follow appellant, and appellant “kept looking back at” the police vehicle as he walked toward a fence. Officer Katz asked Officer Leo to stop the car, and Officer Katz and ATF Agent Srivastava both got out of the vehicle.1
Officer Katz began “side stepping” toward appellant and asked him, in a “normal” tone of voice, whether he had a gun on his right side. Officer Katz testified that he asked this question because of appellant’s gestures: taking his hand out of the pocket, making a movement at his right waistband (movement that Officer Katz testified caused him to be concerned that appellant had a gun in his waistband), breaking away from his friend, and “[e]specially when he went towards that fence[,]” a movement that caused Officer Katz to think, “he’s going to take [a gun] out and put it on the fence.”2 In response to Officer Katz’s question, appellant “took his hand [and] kind of reached it under his coat[,]” and Officer Katz saw a cell phone clipped to appellant’s belt. Appellant unclipped the cell phone, held it so that Officer Katz could see it, and said, “[I]t’s just a cell phone.” As appellant did so, “the right coat pocket of [appellant’s] coat hung over his right hand” such that Officer Katz “could see that there was something heavy” in the pocket. Officer Katz thought this heavy object was a gun.3
The defense witnesses at the suppression hearing were Richard Carter (appellant’s cousin and the man who had been walking with appellant that evening) and appellant himself. Carter testified that he and appellant were walking in the street down Bryan Place, headed toward the Metro station, when they looked back, saw a car with police in it, and moved out of the way of the car. As he and appellant kept walking, someone in the car yelled, “[L]ift your shirts up[,]” and “Do you all have a gun?” Carter and appellant lifted their shirts. Appellant pulled his cell phone from his side, showed it to the officers, and said he did not have a gun. Carter and appellant continued walking together, but an officer got out of the car and kept asking whether the two men had guns, and the two repeatedly answered that they did not. The officer asked whether he could search the men, and both said again that they did not have guns. That officer and one other walked over to appellant, put his hands up, started searching him, and found a gun on him. Another officer told Carter to put his hands up and empty his pockets, both without his consent. Carter, who said that he was “apart from [appellant] when he was talking to the other officers” but could hear everything the officers were saying, testified that he never heard appellant give
Appellant testified that he and Carter were walking toward the Metro station (on a planned route of going past Howard Road to Bryan Place, to Stanton Road and then Sheridan Road and finally back to Howard Road where the Anacostia station is located) when they were stopped by the police. According to appellant, he looked back and observed a “truck with police officers in it” slow down behind him. He “just kept walking,” with his cell phone in his right hand. After appellant and Carter turned onto Bryan Place, appellant clipped his phone to his waistband. He turned around when the police vehicle’s “lights shined.” Someone yelled, “[D]o you have a gun on your right side[?]” and “Can you lift up your jacket[?]” At the time, appellant testified, Carter was “beside [appellant] but a little bit [not even a foot] behind.” Appellant testified that he turned, lifted his jacket on the side, grabbed his phone, showed it to the officers, and told them it was only a phone. He then continued walking.
At that point, appellant testified, one of the officers got out of the vehicle and said, “[S]top,” to appellant. After appellant stopped, the officer repeatedly asked him whether he had a gun on him or whether he had “anything on [him].” The officer then said, twice, “[C]an I search you[?]” Appellant both times shook his head, replied, “[N]o,” and said, “I don’t have nothing.” As the officer then walked up to appellant, appellant “turned [his right side] to the side a little bit” because he wanted the officer to leave him alone. The officer grabbed him, pushed his arms up, put his hands under appellant’s armpits, and said, “I’m going to ask you again, do you have anything on you[?]” Appellant testified that, at this point, he admitted to having a gun in his right pocket. The officer “called the code” and other officers “just bum rushed” appellant. Appellant testified that before the officer put his hands on him, he never gave the officer permission to touch him, search him, or pat him down. He would not have done so, he testified, because he knew he was “dirty” and because he was on parole at the time. He agreed that the officer never drew his gun and was the only one talking to him during the incident.
At the close of the suppression-hearing evidence, Judge Richter credited Officer Katz’s version of the night’s events, explaining:
[O]bviously I am utterly unable to say with certainty who’s telling the truth.... As I say, I can’t be certain. If this were beyond a reasonable doubt, I could not, on this record, credit Officer Katz’s beyond-a reasonable doubt. But I will credit him by a preponderance.
Finding that appellant gave his consent to be patted down before there was any seizure or search, and that what occurred “happened in the sequence as [Officer Katz] described[,]” Judge Richter denied the motion to suppress. Appellant thereafter agreed to a stipulated trial and to incorporating the motions hearing as the trial record. Judge Richter found appellant guilty on all counts. At the April 25, 2014, sentencing proceeding, Judge Richter ruled that appellant’s previous involuntary manslaughter conviction6 qualified as a “crime of violence” under
II.
In resolving a challenge to the denial of a motion to suppress, we view the facts and all reasonable inferences therefrom in the light most favorable to the government as the prevailing party, and we review the Superior Court judge’s findings of fact only for clear error. Robinson v. United States, 76 A.3d 329, 335 (D.C. 2013). We review de novo the judge’s determination that no Fourth Amendment violation occurred. Id.
The Fourth Amendment to the Constitution protects individuals from unreasonable seizures by police. See Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In general, any restraint of a person amounting to a seizure is invalid unless justified by probable cause. See Hawkins v. United States, 663 A.2d 1221, 1225 (D.C. 1995). However, a police officer may conduct an investigatory stop on less than probable cause provided that, “given the totality of the circumstances ... the ... officer could reasonably believe that criminal activity was afoot.” Duhart v. United States, 589 A.2d 895, 897 (D.C. 1991) (citing Terry, 392 U.S. at 29-30, 88 S.Ct. 1868). “A seizure does not occur simply because a law enforcement officer approaches a person on the street and asks him or her questions; the officer may engage in such encounters without violating the Fourth Amendment if the person approached is willing to listen and answer questions.” Jackson v. United States, 805 A.2d 979, 984 (D.C. 2002) (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). The “crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” In re J.F., 19 A.3d 304, 308 (D.C. 2011) (quoting In re J.M., 619 A.2d 497, 499-500 (D.C. 1992)) (internal quotation marks omitted). There are a number of factors that can indicate that a seizure has occurred, including, “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
An encounter between a police officer and an individual may begin consensually and then, because of the officer’s show of authority or some other indication that the individual is not free to leave, become a nonconsensual seizure, which would then require reasonable, articulable suspicion to pass constitutional scrutiny. See Reyes v. United States, 758 A.2d 35, 38 n. 2 (D.C. 2000); Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; see also Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (stating that an individual “may not be detained even momentarily without reasonable, objective grounds for doing so”). “Consent obtained after an illegal seizure is invalid unless it can be shown that the consent was in fact sufficiently an act of free will to purge the primary taint of the unlawful seizure.” Hicks v. United States, 705 A.2d 636, 641 (D.C. 1997) (internal quotation marks omitted).
III.
Appellant advances the following claims: that Judge Richter erroneously denied the motion to suppress; that appellant “terminated the encounter by continuing on his
We therefore begin our analysis by considering appellant’s (implicit) suggestion that this is one of those rare cases in which we should not defer to the trial court’s credibility determination. Judge Richter found that Officer Katz was “a very credible sounding witness” who had “a reason to remember the details” and who was “more credible” than appellant and Carter. In crediting Officer Katz’s testimony over that of the defense witnesses, Judge Richter acknowledged defense counsel’s “very logical” argument that it was “farfetched that someone who had contraband on them, would consent to a search.” The judge observed, however, that “everyday [sic] I see cases in here where people consent to a search [and it’s] not even contested that they consented].”8 In assessing Officer Katz’s credibility, Judge Richter also explained that it “b[ore] on the credibility of Katz’s version” that the officer’s “statement that [appellant’s jacket] pocket looked like it had something heavy in it” was “supported by [exhibit] number 5” (the photo of appellant with the gun in his right jacket pocket). Looking at the photo, Judge Richter observed, “[T]here’s certainly something in there.... [T]he picture clearly reflects that there’s something there.” The judge further remarked that Officer Katz’s testimony that the object in the pocket “appeared to have some weight” was “not in any way incredible”; that “even the teeny tiny gun that [appellant] described would show the weight in the pocket[ ]”; that the photo depicted something of a “size ... consistent with a gun” (though “hardly an outline of a gun”); and that the “something there” or “weighted object” in the pocket would have been more visible “in
Appellant highlights Judge Richter’s statement that “if a judge finds a police officer incredible these days, if I were to make that finding, there’s a big price to pay. He’s almost useless to the police department thereafter.” Appellant appears to imply that the judge thereby revealed that, for policy reasons, he was crediting the police officer’s testimony over that of the lay witnesses—an approach that would have amounted to accepting the police officer’s testimony simply because he is a police officer. Such an approach, of course, is contrary to the standard instruction given to jurors when they are the fact finders, an instruction that applies equally to trial judges: “In no event should you give either greater or lesser weight to the testimony of any witness merely because s/he is a police officer.”11 A close reading of the transcript makes us confident, however, that Judge Richter’s statement did not signal an abdication of his duty to make a genuine credibility determination, one unaffected by consideration of factors such as the police department’s needs. Judge Richter made the statement in question in response to defense counsel’s assertion that there is no “downside” for a police officer who testifies untruthfully, because officers are rarely prosecuted for perjury. We read Judge Richter’s statement as a demurrer that, while the risk of any witness’s being prosecuted for perjury is “close to zero” and “the risk of [an officer] being caught ... lying is probably not tremendous[,]” there nevertheless is a downside and thus a deterrent for an officer who lies on the stand: the risk of being rendered “useless” to the MPD and thus of jeopardizing the officer’s continued employment as an officer. We discern nothing improper about Judge Richter’s statement and no reason not to defer to his credibility determination.
Deferring to Judge Richter’s credibility-based findings, we cannot accept appellant’s premise that he “terminated the encounter by continuing on his way” after Officer Katz first asked whether he had a gun and he responded by showing his cell phone; that Officer Katz continued with
Conducting our de novo review, we are satisfied that the encounter between Officer Katz and appellant had not evolved into a stop or seizure either at the point when Officer Katz asked appellant, in a “normal” tone of voice, whether he had a gun on his right side and appellant showed the officer the cell phone that had been clipped to his waistband; or before Officer Katz saw something heavy (that the officer had good reason to believe was not a cell phone)12 in appellant’s right jacket pocket; or before appellant acted as if he was trying to hide something from the officer when he “blad[ed]” his right side away as the officer approached him.13 Accordingly, Officer Katz’s immediately subsequent act of asking appellant whether he could pat him down to make sure he did not have a gun14 did not amount to prolonging appellant’s “detention.” When appellant then said “[Y]eah, okay[,]” and further acknowledged having a gun and told the officer that he had PCP, those further statements gave the officers probable cause to arrest him and to search him incident to arrest. Therefore, the court
IV.
Appellant additionally contends that the trial court erred when it determined that his 2010 Maryland involuntary-manslaughter conviction was a “crime of violence” for purposes of
The term “crime of violence” means aggravated assault; act of terrorism; arson; assault on a police officer (felony); assault with a dangerous weapon; assault with intent to kill, commit first degree sexual abuse, commit second degree sexual abuse, or commit child sexual abuse; assault with significant bodily injury; assault with intent to commit any other offense; burglary; carjacking; armed carjacking; child sexual abuse; cruelty to children in the first degree; extortion or blackmail accompanied by threats of violence; gang recruitment, participation, or retention by the use or threatened use of force, coercion, or intimidation; kidnapping; malicious disfigurement; manslaughter; manufacture or possession of a weapon of mass destruction; mayhem; murder; robbery; sexual abuse in the first, second, or third degrees; use, dissemination, or detonation of a weapon of mass destruction; or an attempt, solicitation, or conspiracy to commit any of the foregoing offenses.
As originally enacted in 1932, the provision now codified as
Meanwhile, in 1970, Congress added another definition of “crime of violence” to the D.C.Code, in a subchapter pertaining to “Release and Pretrial Detention.” Act of July 29, 1970, Pub.L. 91-358, § 210(a), 84 Stat. 642-43, 650 (1970). That definition, codified as the original § 23-1331(4), included within the term “crime of violence” the following offenses:
murder, forcible rape, carnal knowledge of a female under the age of sixteen, taking or attempting to take immoral, improper, or indecent liberties with a child under the age of sixteen years, mayhem, kidnapping, robbery, burglary, voluntary manslaughter, extortion or blackmail accompanied by threats of violence, arson, assault with intent to commit any offense, assault with a dangerous weapon, or an attempt or conspiracy to commit any of the forgoing offenses[.]
§ 210(a), 84 Stat. at 650 (emphasis added) (quoted in United States v. Edwards, 430 A.2d 1321, 1364-65 (D.C. 1981)). The original § 23-1331 definition also went through several amendments, but its reference to only “voluntary manslaughter” remained in all its iterations until 2006.
In 2006, the Council of the District of Columbia passed the Omnibus Public Safety Amendment Act of 2006 (the “2006 Act”). The 2006 Act shortened
Appellant is correct that because Morris interpreted a different provision (§ 22-3201), it does not resolve the issue of whether the definition of “crime of violence” contained in the current § 23-1331(4) and incorporated by reference into the current § 22-4501 includes both voluntary and involuntary manslaughter. However, for the following reasons, we are not persuaded by appellant’s argument that the 2006 Act “caused an unintentional omission of the word ‘voluntary’ when it amended § 23-1331(4).
The Council chose to incorporate elements from both the old § 22-4501(f) and
The Council appears to have acted quite deliberately in choosing which elements of the prior definitions to retain; it showed itself quite capable of selecting the term “voluntary manslaughter” from the old § 23-1331 rather than the term “manslaughter” from the old § 22-4501 if that had been what it intended. The backdrop for the 2006 Act was the 1993 decision in Morris,18 and the Council chose to use the term that, for over a decade prior to this amendment, had been interpreted to refer to both voluntary and involuntary manslaughter.
“Our primary goal [in statutory construction] is to ascertain and give effect to the intent of the legislative body that drafted the language.” Owens v. United States, 90 A.3d 1118, 1121 (D.C. 2014) (quoting Tenley & Cleveland Park Emergency Comm. v. District of Columbia Bd. of Zoning Adjustment, 550 A.2d 331, 334 n. 10 (D.C. 1988)). Here, we are bound by that statutory intent as indicated by the plain language of § 23-1331(4), given that we cannot say that interpreting the term “manslaughter” to include both voluntary and involuntary manslaughter “produces absurd results[,]” “leads to an obvious injustice[,]” or undermines “the legislative purpose of the statute as a whole.” Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011) (internal quotation marks omitted). We therefore agree with the trial court’s interpretation that involuntary manslaughter is a “crime of violence” under § 23-1331(4) and for purposes of § 22-4503(b)(1), and we reject appellant’s argument that Judge Richter erred in imposing a mandatory minimum sentence of three years because of appellant’s prior involuntary manslaughter conviction.
For the foregoing reasons, the judgment of the trial court is
Affirmed.