Askew v. United States
| Decision Date | 02 July 2020 |
| Docket Number | No. 17-CF-611,17-CF-611 |
| Citation | 229 A.3d 1230 |
| Parties | Corey D. ASKEW, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Jesse I. Winograd, Washington, was on the brief for appellant.
Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief for appellee.
Before Glickman, Easterly, and McLeese, Associate Judges.
Corey D. Askew appeals from his convictions of four counts of misdemeanor assault on a police officer. D.C. Code § 22-405(b) (2012 Repl. & 2019 Supp.) In this opinion, we initially address Mr. Askew's nonmeritorious arguments and then focus on the scope of the government's obligation to preserve evidence under Super. Ct. Crim. R. 16 (" Rule 16"). We ultimately conclude that we must remand the record before we can resolve Mr. Askew's claim that the government's breach of this duty requires reversal of his convictions.
On the evening of September 27, 2013, Mr. Askew was driving southbound on Georgia Avenue N.W. when he was pulled over by Metropolitan Police Department ("MPD") officers because his car's lights were not functioning.1 Based on computer information indicating that Mr. Askew's license was suspended, the officers sought to arrest him. A physical altercation involving four officers ensued, during which Mr. Askew and the four officers were injured. Mr. Askew was ultimately handcuffed and brought to the police station. The next day, Mr. Askew was charged with one count of felony assault on a police officer ("APO") in violation of D.C. Code § 22-405(c) (2019 Supp.), and at his presentment, defense counsel requested that the government fulfill its preservation and disclosure obligations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Rule 16.
Mr. Askew was subsequently indicted in June 2014 and charged with two counts of felony APO and two counts of misdemeanor APO, D.C. Code § 22-405(b) – (c), each count applying to a different involved officer. In July 2014, defense counsel sent the government a "Rosser" letter2 memorializing the discovery he had received to date. In that letter, counsel renewed the request that the government comply with its obligations under Brady v. Maryland and Rule 16, specifically referencing "photographs and videos" and "reports of any medical treatment." In addition, counsel reminded the government of its "duty to preserve any evidence that is discoverable," citing case law from this court for the proposition that "[t]he duty to produce discoverable evidence entails the antecedent duty to preserve that evidence."3
For reasons not relevant to this appeal, prosecution of Mr. Askew's case was delayed, and in May 2016 the government dismissed the indicted charges and recharged Mr. Askew by information with four counts of misdemeanor APO in violation of D.C. Code § 22-405(b).
In April 2016, Mr. Askew's new counsel wrote the government "to memorialize [his] understanding of the government's disclosures thus far and to reiterate prior disclosure requests made on Mr. Askew's behalf, including those made at presentment, in [his] predecessor[ ] [counsel's] Rosser letters, and at [their] status hearings." Defense counsel acknowledged receipt of four pages of medical records for one officer, Officer Jimenez, and requested "[a]ny other medical records" for the officers "generated as the result of this alleged incident." With respect to the outstanding request for video footage, counsel noted that "as MPD is aware, multiple government cameras cover the area in which this incident took place," and, "[a]s you also know, government cameras loop over and delete footage if not properly preserved, often within as short [a time] as 10 days." Counsel reminded the government of its "obligation under Rule 16 and the Constitution to preserve such footage," again citing this court's case law.4
In November 2016, defense counsel filed a "motion for sanctions for failure to preserve and produce evidence." Counsel asserted that (1) at the time of Mr. Askew's arrest, "MPD was operating two crime cameras less than a block away" that "would have captured Mr. Askew's vehicle driving on Georgia Avenue (the condition of which [was] the purported reason for the stop of the vehicle), as well as the interaction between Mr. Askew and the involved officers (which [was] the basis for the charges against Mr. Askew)," and (2) when "Mr. Askew was taken to the stationhouse that evening[,] [h]e walked past several cameras in the stationhouse that would [have] captured his gait, his interaction with [the] officers, his injuries, and his injuries’ impact on his ability to walk." Counsel stated that he had received no video footage from any of these cameras, that "MPD knew or should have k[n]own of the existence of the MPD video footage and accordingly should have taken steps to preserve it," and that "the government's failure to preserve these critical recordings amount[ed] to a violation of Rule 16." As a sanction, counsel asked either for the charges against Mr. Askew to be dismissed or for an opportunity to be heard on lesser remedies.
In response to Mr. Askew's motion, the government stated that it did "not have th[e] videos" from the Closed Circuit Television (CCTV) cameras in the vicinity of Mr. Askew's arrest and further argued that it "never had reason to preserve them" because the videos were "immaterial." The government proffered that the CCTV cameras would not have captured any footage of the condition of Mr. Askew's car lights or the events of the traffic stop because one was a stationary, south-facing camera located south of where Mr. Askew was stopped while driving southbound on Georgia Avenue, and the other was a rotating camera that could have potentially pointed towards Mr. Askew and his car but was more than 400 feet away and thus "out of [ ] range" from the location of the stop. Contemplating that the court could require it to provide evidentiary support for its proffer, the government stated that it had "an MPD officer familiar with the camera system to testify at a hearing to the camera's capabilities." But the government also asserted that, even had the CCTV camera been closer to the location of the stop, "it is only speculation to think that the camera would have captured anything relevant."
As for the stationhouse cameras, the government's primary argument was that "any video from [those] cameras ... would be irrelevant and immaterial ... where the entire incident took place somewhere else." In addition, the government stressed both the newness of this request—asserting the request was "so new that it would cause blisters if it were a pair of shoes"—and the absence of any reason for the government to have anticipated it. The government did not dispute Mr. Askew's understanding that the MPD had a policy or practice of recording over video footage after ten days.5
The court heard argument on the Rule 16 motion at the start of trial in February 2017. Focusing only on what the rotating CCTV camera would have captured, the defense challenged the government's proffer that it was out of range, arguing that the footage would have captured and tested the truth of the "allegation that the headlights were off" and "would have captured some of the interaction [when it was] pointing up Georgia Avenue." Counsel further argued that the government had presented no evidence to support its proffer to the contrary, noting that "the government never pulled a video from another day" (as it had done in other cases counsel had litigated) to show the range of the camera, whereas counsel had appended to his motion a photograph showing the camera's location in relation to the incident. For its part, the government continued to assert that the rotating camera would not have captured either the traffic stop or "the struggle," and in any event that the government never had any reason to preserve that footage because the defense did not specifically request the video from that camera until April 2016, "far after ... the footage had been written over."
Without taking any evidence, the court declined to impose sanctions. Regarding the CCTV footage, the court "agree[d] ... completely" with the government that because the car was driving southbound and stopped north of the cameras, the rotating camera could not have captured the car's taillights even if it were pointing toward the car. But the court did not address whether this camera could have captured Mr. Askew's headlights or his interaction with the police once he was out of the car. The court concluded its discussion of the Rule 16 request for CCTV footage by telling defense counsel "you didn't ask for it, and it wasn't requested until almost three years after the incident."6
Regarding the stationhouse footage, the court acknowledged that it "might have shown some things that might have been useful to the defense,"7 but the court again relied on the fact that "[t]here was ... no specific request to preserve [this footage] at the time and there would have been no reason for [the government] to preserve it without a specific request." When defense counsel cited this court's recent decision in Koonce v. District of Columbia , 111 A.3d 1009 (D.C. 2015), as authority for the proposition that counsel had no obligation to make a specific request because "it should have been obvious" to the government that such video footage needed to be preserved, the court distinguished Koonce as addressing only the government's obligation to preserve stationhouse footage in driving under the influence ("DUI") cases.8
At trial, the government presented the testimony of the four officer-complainants, who described how the altercation with Mr. Askew had unfolded: Officers Allison Arana and Joshua Arana-Jimenez9 pulled Mr. Askew over because his car lights were not on....
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