*1 327 Stewart, Maybin A.2d (quoting v. 885 (D.C.2005)). limited to The review is attorneys’ squabbles fees
“prevent
over
major
into ‘a second
liti-
blossoming
”
supra,
(quoting S.Ct. L.Ed.2d
(1983)). previously held We response of “was a measured
sanction $500 dilatory prose- a failure to conduct and caused the defense by [appellant]
cute unnecessary
to incur counsel fees.” Luna L.L.C., Servs., Engineering
v. A.E. (D.C.2007). Here, n. 746-47 award of say
we cannot $750
each was an abuse of discretion. defendant is not entitled to
Consequently, appellant argument.
relief on basis
III. appellants’
The order claims dismissing contract, duty breach breach of good dealing, faith and fair violation of Act, Protection D.C. Consumer
tortious interference contract af- We also affirm the trial court’s
firmed. granting summary
order fa- appel-
vor the foreclosure trustees fiduciary breach of claim and its
lants’ attorneys’ appellees.
award of fees
So ordered. GRAYSON, Appellant,
Maxine STATES, Appellee.
UNITED
No. 06-CM-1419. of Appeals. Court
District Columbia 20,
Argued Dec. July
Decided Becker, ap- Francis Xavier
William pellant.
328 Mannarino, detective,
John P. betraying Assistant United with the her con- Attorney, Jeffrey States whom A. guilt. sciousness These assessments of Taylor, Attorney, United and Roy States credibility, as well Ms. testimo- Trosman, III and W. McLeese Elizabeth ny, supported the court’s Attorneys, Assistant United States were appellant took jacket the with criminal in- brief, for appellee. tent. FISHER, Judge, Before Associate Nevertheless, the does record SCHWELB, Judges. BELSON and Senior trial court’s statement “we have defendant’s confession PER CURIAM: jacket complain took majority court has concluded ing permission.” Perhaps evidence is sufficient to sustain say court meant that “the defendant appellant’s conviction of second-degree admitted that she took sure, To as Judge theft. dem- Schwelb find that she did without complain so onstrates in III A opinion, Part of his ing permission.” witness’s But we cannot appellant did not confess tо the crime. important assume that such an comment However, that, we are not prepared say on slip the evidence a mere remaining when evidence is “view[ed] tongue. Because to a the reference con ... in the light most favorable to the erroneous, clearly possibili fession is “the rational trier of [no ] fact ty finding guilt, that in exists the trier of found essential elements of fact swayed by mat erroneous factual the crime a reasonable doubt.” III, ter.” re 514 C.J. A.2d 307, 319, Virginia, Jackson v. 99 (D.C.1986). Therefоre, “we are con (1979). 2781, 61 S.Ct. L.Ed.2d 560 strained remand this case for the court We will set in attempt weigh forth evidence the record afresh in Judge opin Shewarega Schwelb’s render new verdict.” detail— (D.C.2008). However, ion undisputed does that. it was Yegzaw, A.2d See that, despite discussions, preliminary Housing also P’ship National v. Munici I, sale of the had not completed L.P., been pal Capital Appreciation Partners left ap before Swann town and that (remanding pellant nevertheless entered Ms. Swann’s “for reconsideration in of all evi apartment record”). and took the while she findings dence of The court’s city. Although appellant was out writing remand be in shall and non-conclu with permis asserted she had done so sory in nature. court, sion, as the of credi Vacated and remanded.
bility, disbelieved that assertion and in stead credited Ms. Swann’s SCHWELB, Judge, concurring Senior given any permission. she had not such part part: dissenting rejected appellant’s The court also testimo On following one-day October ny paid the pur tоward $75.00 trial, bench Maxine was found chase before left guilty town, second-degree of theft con- crediting “testimony nection of a tan paid the defendant never leather money....” complain- the finder of fact from the witness, that appellant changed story concluded Veretta It is Swann. undis- puted jacket; between first second interviews that Ms. Grayson took the I. appeal her sole contention on is that insufficient, as a matter of evidence was THE EVIDENCE law, Grayson approp- to establish that Ms. *3 jacket Ms. con-
riated without 2005, Shortly before Veretta Christmas sent and with intent to steal it. recovering for lived a shelter Swann Grayson, ap- abusers. Ms. who substance Grayson In her oral decision Ms. background, parently had a was similar guilty, that “of stated manager. Ms. Swann testi- the resident course, have the defendant’s confession prior that to the events that led to Ms. fied Grayson] jacket took the without [Ms. conviction, Grayson’s the two women were permission.” A complaining they and that had “formed a bond.” friends careful examinаtion of the record discloses a tan Ms. Swann owned leather confession; that there was no on the con- kept apart- it in a closet in her and she Grayson trary, Ms. testified unequivocally Both women testified that Ms. ment. “you get Swann told her that can purchasing Grayson was interested jacket.” judge’s finding The trial daughter, for her but that she was theft, any confessed to toor pay at the time to it. Ms. unable for wrongdoing, plainly other erroneous testified, con- Swann and Ms. and without it. firmed, that Ms. offered to let Swann judge’s finding The trial that there was possession have when, fact, none, a confession there was pay According for later. .both more, precludes without of Ms. affirmance women, however, stated least, requires, conviction and not feel with such an she did comfortable a findings remand for ex- revised arrangement.1 cluded consideration of a purported to New York for the Ms. Swann went Indeed, confession. holds. majority so holidays. Ms. Swann testified Christmas opinion, remand or- immediately departure, before dеred inappropriate court is be- if she Grayson] asked before I left [Ms. cause, confession, of a absence I the coat. She told me no. wanted evidence, viewed in the most favor- said, I I again before left. asked able to the was insufficient don’t want the coat you you are sure a matter of law to establish me I leave. told no. before She “in- reasonable doubt that Ms. undisputed thus It is deprive tended either [Ms. Swann] Christmas, just to let until before offering, right property ... or make use of possеssion of the take property ... au- [herself] once, it later. right,” thority or Cannon United (internal 293, cita- Ms. Swann was New While omitted). shelter, re- rules of the Accordingly, required, by tion daily. judgment entry testi- and direct the to call in to Ms. She verse 23, in on December fied that she called acquittal. precise testimony did. point A. I Q. on this said, no, follows: I won't do that until was as And she Q. money. wrong My under- And correct me if I’m standing you take is that told she could Yes. A. pay you it and later? Muhammad, 25 and and she stated that she principal police invеstiga- did not, conversations, during any of these tor who came to the investigate scene reported permission burglary, apart to take the testified that jacket. testified, however, alleged theft of the when charged she called in had never been or linked on December Ms. burglary anything “told me she took the coat.” According to Swann, from Ms. apartment. Grayson explained during telephone conversation on the 26th Detective Muhammad testified that daughter had come and that she shelter, Grayson, when he came to the (Ms. Grayson) had given to her manager, resident “took [him] *4 daughter for In response Christmas. to a in building.” around the inside of the Mu- question from defense counsel whether hammad stated that Grayson he asked Ms. “that was the full extent of the conversa- if anything she knew about Ms. Swann’s you,” tion between the Grayson two of Ms. Muhammad, apartment. According to Ms. answered: ‘Tes.” There is no in indication Grayson told him that she had not been in Ms. testimony upon being Swann’s Ms. since Ms. Swann Grayson told that Ms. jack- had taken the York). had left (presumably for New La- (Ms. Swann) et, she expressed any outrage 27, however, ter on December Detective or disapproval, suggested any way or in Grayson Muhammad interviewed Ms. anything had done the 7th headquarters District and advised Ms. Swann had not wanted her to do. rights. her of her He testified “[a]t Obviously, Ms. Swann did not regard the point, told me that she taking as theft or impermissi- as otherwise had taken the because she wanted ble. Christmas, it to her child for believe it was.” testified that when Ms. (Ms. Swann called her from New regarding аlso testified her Grayson) told Ms. Swann that Gray- contacts with Detective Muhammad. She daughter Brittany son’s visiting was her explained that when she told Detective Christmas, and she asked Ms. Swann: Muhammad that she had not been in the I go get “Can in and being apartment, she understood the she’s here”? stated that Ms. referring particular day to a —Decem- “ response looking was ‘Good out! any ber She denied recollection of it,’ You get got jacket.”2 can and I having claimed not to have entered the absence, apartment during Ms. Swann’s On December Ms. Swann returned and she testified that in she had fact taken Washington. She discovered that some- on December and had so body had entered her apartment and had station, advised the detective at the daughter’s stolen some items from her as indeed previously she had told Ms. closet, and that the apparent- intruder had Swann over telephone. ly attempted to appearance create the of a burglary. Grayson, has not January On the United States charged been complicity any in real Attorney filed a criminal information staged burglary. Detective Michael charging second-degree any payment 2. The Grayson. two women differed in received from Ms. respect. one testified that she judge credited Ms. Swann and not Ms. partial payment $75.00 had made a for the jacket, while Ms. Swann denied that she had fact terminated an indication to the find- tainly theft. was Court, evicted, er, con- position and she was not actually guilt, any contact Swann or sciousness pеrmitted with Ms. by going a crime tak- committed other Swann was invited residents. Ms. while complaining prosecutors one of the to discuss the mediation, complaining witness was possibility of order to deter- apartment. complaining Once the wit- mine work out whether says she didn’t want something with Ms. Swann to ness right giving didn’t mon- jacket. Ms. Swann refused the offer of feel time, ey mad, at that then the deal off. mediation because “I was hurt and complaining goTo there while wit- probably.” is out of town and take ness II. degree theft. second decision, articulating her THE TRIAL JUDGE’S DECISION appeared to focus on the manner The trial found Ms. *5 jacket, took the rather than stated, guilty charged. The in judge had whether Ms. Swann pertinent part, that she Grayson’s taking it. consented to Ms. Re- the complaining credited witness’ testi- Grayson’s entry into ferring to Ms. mony that the paid defendant never her during unit Swann’s absence any money jacket, for the though even judge in New found at complaining point witness one “upset by this of pri- Swann was invasion willing the defendant vacy judge of trust.” The and violation and then she’d her repay along way. found that Ms. Swann further But that complaining was with the wit- willing Grayson] pay let [Ms. ness giving not with the after, in af- jacket installments complaining defendant behind the wit- possession, ter she obtained defen- home, coming ness’ back into her invad- had, possession, didn’t dant obtained ing space. appear prejudice bias or to- The also judge credited Detective Mu- defendant, until the defen- wards apartment hammad’s that at the space came invaded dant complex, told him that she lеft property, took her and then had apartment, not been Ms. Swann’s trying sug- a condition later, station, police but that gest type some of break- that there was Grayson admitted that she taken had in. jacket and had told Ms. judge opinion The done so. Finally, the stated that “we have confession that she took the defendant’s complaining witness’ inconsistency in the statements of [t]he permission.”3 the defendant to the officer cer- sentencing, incarceration prosecutor At sentence. don't think stated he oppose probation. transcript good did not The You in this case. heard continues as follows: working that she is two Grayson]: problems jobs. struggling MS. CARNEY for Ms. is [Counsel life, appreciate just we the Govern- appreciate own suspended for a ment’s recommendation words; hypothetically, III. cise use of judge might have meant “admission” when LEGAL ANALYSIS That, she said “confession.” is A. purported The not what occurred case. confession found that Ms. confessed “that judge’s with the begin findings: complain- she took the without the (1) that there was a “confession” Ms. permission.” (Emphasis (2) Grayson; that Ms. “con- added.) There no evidence fessed” to with- having admitted out I agree Ms. Swann’s consent. Thus, consent to take the coat. the erro-
colleagues
there is no record evidence
neous
confessed
findings.
either of
these
that she took the
without the own-
are
“Confessions
admissions
goes
principal
er’s consent
issue—
States,
crime itself.” Jones v.
United
indeed, the
issue—in
case.
sole
398,
D.C.
U.S.App.
296 F.2d
(1961). A
“generally
confession is
defined
“A
is like
confession
no other evidence.
admitting
acknowledging
statement
Indeed,
confession
the defendant’s own
necessary
all facts
for convictions of the
probably
probative
damaging
the most
issue.”
Cleary,
crime at
Edward W.
can
against
evidence that
be admitted
§
McCormiok
Evidence
Fulminante,
him.” Arizona v.
(1984).
added.)
(Emphasis
“Exculpatory
111 S.Ct.
L.Ed.2d 302
statements, denying
cannot
guilt,
be con
(internal
omitted).
(1991)
citation
If Ms.
Opper
fessions.”
v. United
348 Grayson
*6
jack-
confessed
the
to
158,
U.S.
n.
75
99
91
S.Ct.
L.Ed. 101 et without
Swann’s permission,
(1954).
Grayson acknowledged
While
merits,
would
no
the
have had
defense on
that she took the
from
guilt
and a
of
be
finding
could not
reason-
apartment,
having
she denied
done so ably disputed.
finding
erroneous
According
Ms. Swann’s consent.
admitted lack
consent
of
and
ly,
contrary to
judge’s finding,
and
the
the
confessed to
commission
theft was
Grayson did not
the
confess to
crime of
prejudicial,
therefore
it
highly
and
cannot
or, indeed,
theft
to any crime.
reasonably
viewed
Ac-
be
as harmless.
Theoretically,
error,
if
might
cordingly,
one
attribute the
even there was no other
judge’s
stand,
Grayson’s
that Ms.
“confess- Ms.
conviction could not
slip
ed”
tongue
impre-
to a
the
to an
and the case
have to
remanded to
would
be
Twenty-five days
jail,
to the
$50
recommendation and would ask the Court
Victims
Fund,
Compensation
Crime
concur
that.
Violent
Anything
Anything
THE COURT:
defendant would
that is due
June 1st 2007.
say
you,
the
like to
before I sentence
ma'am?
further from Government.
govern-
[Counsel
MS. GRAYSON: No.
MR. MADRINAN
No, Your Honor.
ment]:
SENTENCING
sentencing you
THE COURT: I’m
as fol-
THE COURT: Defense Counsel?
impоrtant
very
position,
had a
MS.
lows. You
CARNEY:
ask if
people
relying
possibly
you.
there
You have to
the Court could
allow her to do
weekends,
key
employ-
have the
that on
because her
facilities
access
now,
right
personal belongings,
you
just
so
their
breach-
ment’s
critical in her life
stepped
ed
trust. And
and she’ll lose that if she’s
back.
the Court believes that
viewing
parties
Request
Step
THE
denied.
allocution of
COURT:
record,
follows,
marshal,
you
sentencing
Parties are
I’m
back to the
ma'am.
good day.
excused. Have
ma'am.
light
most favorable
directions to make
dence
any rational trier of fact
findings
undermined
revised
found the essential elements
could have
judge’s incorrect belief
there had been
beyond a reasonable doubt.
That, indeed,
of the crime
majori-
a confession.
ty’s disposition
appeal.
of the
307, 318-19,
Virginia,
443 U.S.
Jackson
(1979) (em-
99 S.Ct.
61 L.Ed.2d
B. The
sufficiency
evidence
omitted).
(citations
phasis
original)
The more difficult
is whether
time,
require-
At the same
against
Grayson,
aside
evidence
beyond a
doubt
proof
ment of
confession,
purported
was insuffi-
requires
It
the finder
exacting
is an
one.
cient
a matter of law to
subjective
“to
of near
of fact
reach
state
Grayson’s
conviction. Ms.
burden with re-
guilt
of the accused.” Id.
certitude of
one,
spect
heavy
especial-
to this issue is a
“[pjroof beyond
rea-
at 315.
where,
case,
ly
as in
merely guideline
is not
sonable doubt
credibility findings
has made
fact,
favorable
trier
it
a stan-
also furnishes
Nevertheless,
prosecution.
based
judicial
sufficiency
dard for
review of the
largely
Rivas,
of the complain-
783 A.2d
evidence.”
herself,
Jackson,
316-17,
I am
opinion
witness
(citing
2781).
words,
conviction must be re-
In
appellate
S.Ct.
other
re-
evidentiary insufficiency.
evidentiary insufficiency
versed for
view of claims of
“toothless,”
have an
“[w]e
is not
obli-
reviewing
sufficiency
of the evi
gation
seriously
requirement
to take
dence,
we must view the record in the
prosecution
a criminal
most
prosecution, giving
favorable to the
strong enough
trier of
[the
must
weight
full
to the right of the trier of fact
behaving rationally really could find
fact]
credibility
determine the
of the wit
persuasive beyond a reasonable doubt.”
nesses,
evidence,
weigh
and to draw
Id.
See, e.g.,
reasonable inferences.
Rivas v.
then, must
wheth-
Essentially,
decide
(D.C.
United
*7
er,
light
most
viewing
record
2001) (en banc);
Curry v. United
to the
favorable
accord,
(D.C.1987);
520 A.2d
In re
conclude,
a
fairly
rea-
could
T.M.,
i.e.,
doubt,
certainty,
sonable
almost to
(bench trial).
may We
reverse on insuffi
Grayson knowingly took
ciency
if,
if,
grounds
only
evi
“the
jacket without Ms. Swann’s con-
dence,
when viewed in the
fa
most
appropriate
sent and
the intent
with
government,
vorable to the
is such that a
use, i.e.,
steal it.
In this
her own
juror must
reasonable
on Ms. Swann’s own testi-
regard, based
any
doubt as
existence of
undisputed:
facts are
mony, certain critical
Curry,
essential elements of the crime.”
1. Ms.
offered
Swann
(emphasis
original).
able doubt. during her whether, conversations viewing telephone tion after the evi- her is stay in only reason, New she did not consent to And reasonable conclu- taking of there was no okay. is that it sion Because she offer, previous that the Mends. had built a rapport dеclined, was ever her. give with And she wanted to withdrawn, or Ms. Swann ever told jacket to daughter for her long- the offer was no payment and work out a situation. open; er problems She comes home on December told room, daughter’s she found her Ms. Swann that she had taken they’ve said officer never been able to for her daughter, revelation can- any link of that to Ms. readily be reconciled with a belief on people has told she went in to Ms. Grayson’s part that had stolen she open went into that jacket; closet, got that the permission coat with when told Ms. that the complainant, with Ms. Swann’s latter had taken the story permission. completely Her made no request be re- the, many consistent with so admissions turned, reprove nor did she complainant that she indeed tried protest any way. coat, to sell told her she could closing trial, argument at the 26th, coat, take the to her on talked Veta Carney, Esquire, and indeed was told she took coat. counsel, adroitly think, fairly, ana- lyzed record, pres- and her is, not, this oh goodness, This entation quoting length: merits at some some, my apartment she broke into there’s big problem my permission without and took the Government, this case for the and the ongoing coat. These were associations big problem comes from its own witness. two people. At most where this Ms. Swann said tried ought maybe in case to be is a small lady
this money. coat to this Maybe claims court. there’s a civil case trying She was to sell it and told here,[4] certainly but it’s criminal says take it. She also on Decem- intent. ber spoke to Ms. sure, argument To counsel’s phone and Ms. her she told made assist the trial in her role as she, jacket. took today, Now fact-finder, while our is to task determine permission, was not there was *8 legal sufficiency the the of evidence to agreement. no On December 26th when prove guilt beyond a reasonable doubt. Grayson Ms. told her took that she the Nevertheless, how, I do not see on this not she did call the addictions record, find, report fairly the trier of counselor to Ms. She fact police. doubt, did not call the nothing. She did Ms. Car- argument opposition Gray- taking In his Ms. to the without con- acquittal, sent, son’s motion for of the premises entering and not the prosecutor the invoked law of contracts: “It prosecutor judge Both the consent. the agreement. was an offer and not an I believe appeared uncharged to focus more meeting there was never of the minds. that we have than on conduct italicized Therefore, there was never authоrization for whether issue Ms. Swann consented to the apartment-” Ms. enter to It jacket. noteworthy charge against is Ms. confession out supposed un- With the common sense assessment ne/s case, Grayson’s alleged consciousness Ms. sound. demonstrated, would guilt, had it been of implicated by The merits of the case are in the remaining weapon principal be the judge’s finding, her as- based on Yet, critical on this prosecution’s arsenal. credibility, of sessment Ms. opted finding defib- point, told initially Detectivе Muhammad misunderstanding even erate He over a not in Ms. at all she had been Swann’s unit no evident reason for though there was absence, during that she supposed- tell the Hewhich only admitted at station later ly finding warranted the of consciousness had that she taken coat. The words, put bluntly, guilt. of In other Grayson’s found that Ms. initial statement finding guilty, judge, was untruthful and that it reflected con- that, objectively, ignored two facts viewed guilt Grayson’s part. of on sciousness surely devastating prosecu- were Generally, statements exсulpatory false tion’s case:
may
guilt,
reflect
of
consciousness
first learned from
When Ms. Swann
may reasonably
be in-
guilt itself
Grayson had tak-
See,
e.g.,
ferred.
Irick v. United
(or
en
her reaction
lack
(D.C.1989) (citing
n.
565 A.2d
& 8
thereof)
with the no-
was irreconcilable
§
WigmoRE, Evidence,
tion that
had committed a
John HenRY
(Chadbourn
(1979)).
note,
I
how-
rev. ed.
theft; and
ever,
in determining
whether Ms.
Grayson supposedly
2. When Ms.
statement
Detective Muham-
guilt
of
with-
showed consciousness
(as
govern-
mad was a deliberate lie
Mu-
holding
truth from Detective
cоntended)
ment
or an answer based on a
hammad,
already
the truth
she had
told
(as
of
misunderstanding
Swann,
she had no reason to
testified),
judge evidently
it,
did
acknowl-
conceal
the detective
consideration,
not
into
cer-
him the truth at the
edged,
take
and she
she told
tainly
to,
telling
poHce
station.5
did
allude
se-
which,
view,
quence
of
make
events
second-guess
a trial
lightly
do
ex-
guilt
consciousness
judge’s credibiHty finding.
presided
tremely questionable.
Swann testified
trial;
only
transcript.
read
But
that on
had
December
case,
truly
the limita
exceptional
(Ms.
telephone
told her over the
notwithstanding,
transcript
tions of
cold
Grayson)
Any
had
doubt
jacket.
taken
credibiHty
...
de
may
disregard
...
“we
identity
surely
taker
find them to be
terminations
where
com-
removed
this disclosure
unreasonable, self-contradictory, or based
circumstances, it
plainant. Under these
reasoning.” Eilers v. Dis
inadequate
why
difficult to understand
Bureau Motor Vehi
trict
Columbia
deliberately He to the
Servs.,
detective
cles
already
ac-
Inc. v.
something
about
Exch.
(quoting Midwest Stock
*9
(7th Cir.1980)).
1255, 1265
NLRB,
only to correct her ac-
knowledged doing,
635 F.2d
exceptional
me,
case
later on the To
this
the kind
count at the
station
from Eilers
language
the quoted
day.
same
Grayson had
guilt” finding
belief that
mistaken
judge’s
“consciousness
5.
by
may very
influenced
confessed.
well also have been
Eilers,
applies.
the matter
The scenario described
counsel is
suspension
issue
primarily,
exclusively,
was
Mr. Eilers’
based
if not
on the
driver’s license and the
of proof
prosecution
standard
witnesses.
existence,
non,
was the
vel
Viewing
substantial
the record in
most
favor-
Here,
Grayson’s liberty
government,
evidence.
able
was
recognizing
but
stake,
prosecution
required
government
required
that the
to show
to prove
guilt beyond
guilt
accused,”
“near certitude of the
Jackson,
doubt.
tape, which the Government could have here,
played officer, but she told
took the coat. The officer said she took
the coat. There’s no dispute. She took
the coat. She wanted to for it. She
says paid money. some Ms. Swann didn’t.[6]
said she Ms. Swann admitted over, Ms. Grayson after In re ESTATE OF Geraldine B. location, was evicted from that could not McKENNEY; Khalid M. location, come back to that try Eltayeb, Appellant. or deal try discuss with her and work it out. Once she was the court No. 05-PR-1271. system, she wanted to do mediation to Distriсt Appeals. of Columbia Court of payments
make on that coat to make it right by Ms. Swann. Argued Feb. really we difficult July Decided situation here with It’s a people. shame that a relationship that I think at one very
time was close But apart. fell what
we don’t have here is criminal intent on most, part of Ms. At
have perhaps misunderstandings be- women,
tween two but we don’t have
a, we don’t have a crime here. 6. The dispute partial payment go stated that credited over does not point. here, on this the central issue which is whether Ms. provides This some for the Grayson knowingly took the government’s theory, may but it too have been consent and with the intent judge's impression influenced steal it. event, had confessed.