874 A.2d 371 (D.C. 2005), 98-CF-924, McNeely v. United States

Docket Nº:98-CF-924.
Citation:874 A.2d 371
Party Name:Robert L. McNEELY, Appellant, v. UNITED STATES, Appellee.
Case Date:May 12, 2005
Court:Court of Appeals of Columbia District
 
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874 A.2d 371 (D.C. 2005)

Robert L. McNEELY, Appellant,

v.

UNITED STATES, Appellee.

No. 98-CF-924.

Court of Appeals of Columbia District

May 12, 2005.

Argued June 18, 2001.

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Kenneth D. Auerbach, Silver Spring, MD, for appellant.

Elizabeth Trosman, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III, Darrell C. Valdez, and Maria N. Lerner, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB, RUIZ and GLICKMAN, Associate Judges.

RUIZ, Associate Judge:

Robert McNeely appeals convictions on two counts of violating the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Act of 1996 (the "Pit Bull Act" or "Act"). See D.C. Act 11-257, 43 D.C.Reg. 2156 (Apr. 16, 1996), amending D.C.Code § 6-1021.6(b) (1995), re-codified at D.C.Code § 8-1906(b) (2001). He argues that his convictions should be reversed because the Pit Bull Act denies due process of law and because the prosecutor engaged in improper closing and rebuttal arguments. In support of the former claim, McNeely contends, first, that the Pit Bull Act does not give "fair warning" of the criminally proscribed conduct and, second, that the Act constitutes an impermissible strict liability felony. We affirm.

I.

At approximately 1:00 a.m. on May 13, 1996, Helen Avery carried a bag of spoiled food to the trash can behind her home. As she replaced the can's lid, Avery saw two dogs appear from under the steps of her back porch. The dogs charged towards her, forcing Avery to seek an escape by scaling a fence to her neighbor's yard. Unfortunately, she did not evade the dogs quickly enough: one of then seized Avery by the back of her leg and pulled her off the fence, while the other dog jumped on top of her as she fell backwards. During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off; and she lost a large amount of blood. The attack finally ended when Avery's son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.

Officer Patrick Keller of the Metropolitan Police Department responded to an emergency phone call placed by Carey Smith, one of Avery's neighbors who had witnessed the attack. The dogs had since

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departed from the scene, but Officer Keller was able to follow a trail of blood he found in the alley which led several hundred feet to a badly wounded dog collapsed in the backyard of McNeely's home at 79 Q Street, S.W. Another dog was also present. Having recently returned home from a wedding earlier that day, McNeely spoke with Officer Keller and admitted that he owned both dogs. [1] Officer Keller inspected McNeely's dog kennel and backyard, noting that, while the kennel was closed, secured, and had no openings in it from which the dogs could escape, the backyard fence was dilapidated and had been dug out in various places. [2]

On May 29, 1996, McNeely was indicted on two counts of violating the Pit Bull Act by allegedly owning the two pit bulls that unprovokedly attacked Avery. See D.C. Act 11-257, 43 D.C.Reg. 2156, amending D.C.Code § 6-1021.6(b). Under the Act, each violation exposed McNeely to a potential fine not to exceed $20,000 and two years of imprisonment. See id. Defense counsel filed a pre-trial motion seeking dismissal of the indictment on various grounds, including that the Act contravened due process of law because it was impermissibly vague and because it imposed felony liability in the absence of fault. The government opposed the motion, arguing that the Pit Bull Act was not vague because it was not standardless, and although it did not expressly require a mental state reflecting some sort of malice or fault, it could properly be construed as requiring proof that the accused knowingly owned a pit bull. Applying Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the court reasoned that, because the express language of the Act was silent in regard to criminal mens rea, and because the Council of the District of Columbia did not otherwise expressly or impliedly indicate that it intended to impose strict criminal liability, the court must impute to the Pit Bull Act a basic scienter requirement. The judge accordingly interpreted the law as requiring the prosecution to prove not only that the pit bulls attacked without provocation, but also that McNeely knew that the dogs he owned were pit bulls.

McNeely did not dispute at trial, nor does he now on appeal, that he knew that his dogs were pit bulls. His defense at trial centered largely on the absence of evidence establishing beyond a reasonable doubt that the attack upon Avery was unprovoked. Lending general support to McNeely, Susan Simms testified that they both lived at 79 Q Street, S.W., and that, on the day preceding the attack, she and McNeely left the house around noon for a wedding reception in Maryland and did not return until 2:00 a.m. the next morning, after the attack had occurred. She stated that she had fed the dogs the previous morning at 10:00 a.m. and that the dogs had been locked in the kennel.

During the government's closing argument, the prosecutor reminded the jury that McNeely's knowing ownership of the pit bulls was established by his own admission.

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Apparently attempting to summarize the evidence of the unprovoked nature of the attack, the prosecutor also reminded the jury that Bryant had testified that he recalled seeing the dogs running loose in front of his mother's home earlier in the evening, and that there was no other person or animal in the vicinity when the dogs attacked her. [3] The circumstances of the dogs' escape from the backyard was also discussed during closing argument. Drawing on Officer Keller's testimony, the prosecutor argued without objection that since the police found the kennel secured while at the same time the dogs were running loose, the jury could conclude that "through negligence, recklessness[, or] ... an omission by the defendant" the dogs were allowed to run loose and attack Avery. During rebuttal argument, the prosecutor's argument evolved into an assertion that McNeely likely allowed his dogs to run free after he returned from the wedding reception: "What happened that night, ladies and gentlemen[?] The defendant came home with his girlfriend. They put the dogs in the back yard ...." Defense counsel objected that there was no evidence to support such an argument. The court sustained the objection, ruling that there was no evidence that upon returning with Simms, McNeely let the dogs out of the kennel thinking that the dogs would remain in the yard. No curative jury instruction was requested or given. Later in rebuttal, the prosecutor said:

Should the defendant be criminally responsible? The District Council government has already determined the answer to be "yes." If you find that he did know he owned pit bulls and they got out and they hurt somebody without provocation, the answer is "yes." You only need to read the newspaper and use your common sense to know why.

The Court interjected sua sponte: "You cannot read the newspaper. You cannot read the newspaper .... Disregard the comment you only need to read the newspaper." The trial court denied McNeely's ensuing motion for a mistrial, preferring instead to give an immediate curative instruction and to remind the jury later during final instructions that they could not rely on what they read in the newspapers to decide the case.

After the jury reached its verdicts of guilt, the trial court asked counsel to brief the issue of improper argument by the prosecutor in closing so that the court could revisit the matter at sentencing. After taking the issue under advisement, the judge denied at sentencing defense counsel's motion for a new trial. The court agreed that the prosecutor's newspaper comment was "grossly improper," but it also determined that its sua sponte interjection required harmless error analysis. Given the "low standard of proof" and the strength of the government's case, the court ruled that the prosecutor's unwarranted comment was harmless. After listening

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to the parties sentencing requests, [4] the trial court sentenced McNeely to: (1) eight to twenty-four months concurrent terms of imprisonment, with execution of the sentence suspended; (2) three years of supervised probation; (3) 150 hours of community service; and (4) a fine of $5,000 payable in monthly installments of $100. This appeal timely followed.

II.

The Council enacted the first legislation in this jurisdiction to regulate dangerous dogs in 1988. See generally D.C. Act 7-190, D.C. Reg. 35-4787, codified at D.C.Code §§ 6-1021.1--6-1021.8 (1995). This law continues to apply today. [5] Any dog that "[h]as bitten or attacked a person or domestic animal without provocation," or "[i]n a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals," is a "dangerous dog" within the meaning of the statute. D.C.Code § 6-1021.1(1)(A)(i) & (ii). Once a dog has been classified as "dangerous" after a hearing conducted before the Mayor, see D.C.Code § 6-1021.2, [6] the owner must, in addition to

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complying with universally applicable licensing obligations, see D.C.Code § 6-1004 (1995), specially register his or her dog as a dangerous dog, see D.C.Code § 6-1021.4, [7] and fulfill special...

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