Blackson v. U.S.

• Decision Date: 06 April 2006
• Docket Number: No. 06-CO-103.,06-CO-103.
• Citation: 897 A.2d 187
• Parties: Jovanda BLACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 187

897 A.2d 187

Jovanda BLACKSON, Appellant, v. UNITED STATES, Appellee.

No. 06-CO-103.

District of Columbia Court of Appeals.

Argued March 1, 2006.

Decided April 6, 2006.

COPYRIGHT MATERIAL OMITTED

Nikki Lotze, Riverdale, MD, for appellant.

Elizabeth Trosman, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney, and Roy W. McLeese III, Jennifer M. Anderson, Valinda Jones and Youli Lee, Assistant United States Attorneys, were on the brief for appellee.

Before SCHWELB and GLICKMAN, Associate Judges, and PRYOR, Senior Judge.

GLICKMAN, Associate Judge:

Jovanda Blackson appealed the trial court's refusal to reconsider her pretrial detention, and the parties filed cross-motions for summary reversal or affirmance. After holding oral argument and determining that we had jurisdiction to hear the appeal and that the record does not support a finding of dangerousness by clear and convincing evidence, we reversed the detention order.¹ This opinion explains our decision.

I.

Appellant was arrested on August 31, 2005, and charged with corruptly obstructing the due administration of justice in an official proceeding in violation of D.C.Code § 22-722(a)(6) (2001 & 2005 Supp.). The government moved for appellant's detention without bond pursuant to D.C.Code §§ 23-1322(b)(1)(B), 1322(b)(1)(C).² The trial court held a hearing on the motion on September 2, 2005.

According to Detective Michael Irving, who summarized the government's evidence, the obstruction charges against appellant arose out of her service as a juror in the May 2005 first-degree murder trial of Harry Ellis and Lamiek Fortson. After the trial ended with a hung jury, a dismayed fellow juror complained to the government that appellant had derailed the process by refusing to deliberate properly. The complaining juror reported that appellant told other jurors she knew Fortson, insisted on finding both him and his co-defendant not guilty no matter what the other jurors might say to her, told the other jurors not to talk to her, cursed at them several times, and "at one point made gestures as if taking one hand hitting the other hand, making comments while [she] was doing so." Although the juror did not report any overt threats or violent acts on appellant's part, she and others on the jury felt "threatened" by appellant's behavior.

Fortson had been detained during his trial at the Central Treatment Facility. Like other prison institutions, the facility routinely recorded all outgoing telephone calls made by its inmates.³ As part of his investigation into the allegations against appellant, Detective Irving listened to Fortson's recorded telephone conversations, a large number of which were to his wife, Erica Williams. Those conversations, guarded as they were, revealed that appellant and Fortson had recognized each other during jury selection—appellant surreptitiously winked at him—and that appellant had communicated secretly with Fortson's wife throughout the trial. Appellant had informed Williams about the jury's deliberations, and Williams had supplied appellant with arguments to make in an effort to persuade the jury to acquit him.⁴

Detective Irving was the sole witness at the detention hearing. Based on his testimony, the trial court found a "substantial probability" that appellant had committed obstruction of justice as charged. Appellant's motive for doing so was obscure. Government counsel observed that she did not have a close personal relationship with Fortson or Williams, and there was no evidence that she had been bribed or otherwise induced to help them.⁵ The obstruction of justice charge against appellant was all the more surprising given her background. A twenty-seven-year-old single mother raising three young children, appellant had no prior criminal record whatsoever, nor any history of substance abuse. Until her arrest in this case, she had been employed for four years in an administrative office position at George Washington University at an annual salary of approximately $40,000.

Notwithstanding appellant's positive personal characteristics, the prosecutor asserted that no conditions on her release pending her trial would be sufficient to protect the public safety. Appellant, the prosecutor argued, had demonstrated her willingness to obstruct justice to help someone with whom she had only a "tenuous" connection; she would have a much greater incentive to obstruct justice now that her own liberty was at stake.

Relying on the "egregious" circumstances of the charged offense, the trial court decided to detain appellant. The court orally explained its ruling as follows:

The evidence this Court hear[d] basically breaches the tenets of the Constitution in this judicial system where an acquaintance, relative, wife of the defendant on trial communicates with a member of the jury during the trial and even during deliberations which causes a mistrial. That in and of itself is so egregious that this Court cannot find there are conditions or a combination of conditions that would assure the safety of this community....

Appellant's counsel inquired whether the court had found by a substantial probability that appellant had threatened, injured, or intimidated a prospective juror; under D.C.Code § 23-1322(c)(2), which counsel cited to the court, such a finding would have triggered a rebuttable presumption that no conditions of release would reasonably assure the safety of other persons and the community. In response, the court stated that it was holding appellant under D.C.Code § 23-1322(b)(1)(C). See footnote 2, supra. Along with both appellant and the government, we understand this response to mean that the trial court did not make any finding that would implicate the statutory presumption of dangerousness.

Following the September 2 hearing, the government submitted proposed findings of fact and conclusions of law in a draft order of detention pending trial. The trial court eventually adopted the government's submission verbatim by signing the proposed detention order on October 28, 2005 (two months after the hearing).⁶ As the rationale for detaining appellant based on the evidence summarized above, the order states that "this is a crime that shocks the conscience" and that

Defendant Blackson has shown by her actions that she was willing to obstruct justice for a casual acquaintance. The Court can therefore have no confidence that if given the opportunity she would [sic⁷] obstruct justice again when her own liberty interest is at stake. She knows the identity of the jurors from the first trial who, by necessity, will be witnesses for the obstruction trial. Accordingly, there is a serious risk that [Blackson] will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness or juror.

On January 9, 2006, four months after appellant was detained, she filed a motion asking the trial court to reconsider her bond status.⁸ In addition to reciting the facts in appellant's favor that had been brought out at the detention hearing, such as her lack of any criminal record and her history of employment, the motion stated that questions had arisen in the aftermath of her detention about her psychological history and well-being. Appellant did not specify what those questions were, however. Stating that nothing had changed, the trial court denied the motion for reconsideration at a January 30 status hearing. Appellant filed a timely notice of appeal, together with a motion for summary reversal. The government responded with a motion for summary affirmance.

II.

Before we address the merits of the trial court's order of detention, which appellant claims is not supported by the record, we need to lay to rest questions raised by the government regarding our jurisdiction to entertain this appeal. As the government's counsel pointed out at oral argument, in other contexts we have held that the denial of a motion to reconsider is not an appealable order. See Swann v. United States, 785 A.2d 663, 664 (D.C.2001) (motion to reconsider denial of motion to dismiss indictment on double jeopardy grounds); Taylor v. United States, 603 A.2d 451, 458 (D.C.1992) (motion to reconsider denial of motion to vacate conviction); In re Alexander, 428 A.2d 812, 815 (D.C.1981) (motion to reconsider criminal contempt adjudication); United States v. Jones, 423 A.2d 193, 196 (D.C.1980) (motion to reconsider dismissal of indictment). The operative principle is that where a timely appeal is not taken from a final order of the trial court, the would-be appellant cannot extend the time for appeal by the simple expedient of moving the trial court to reconsider its decision. Otherwise no decision would be truly final.

We have not applied this principle to interlocutory appeals from denials of motions to reconsider pretrial detention orders, however. In two cases involving juveniles detained pursuant to D.C.Code § 16-2312 (2001), we have held that the denial of a motion to reconsider a pretrial detention order is an appealable "final" order in its own right, "cognizable by the court" even though the appellant did not take a timely appeal from the original order of detention. See In re K.H., 647 A.2d 61, 62-63 (D.C.1994); In re DeJ., 310 A.2d 834, 835 (D.C.1973).⁹ We see no reason not to follow those precedents in the present case. It makes no material difference for purposes of our jurisdiction whether the appellant is a juvenile charged with a delinquent act and detained under D.C.Code § 16-2312 or an adult charged with a felony offense and detained under D.C.Code § 23-1322. In either case, a pretrial detention hearing usually is held on short notice at the beginning of the prosecution. Newly-engaged defense counsel typically has only limited time to prepare to contest the government's request, and the trial court ordinarily must rule on the detention motion on a...