Briscoe v. United States

• Decision Date: 29 March 2018
• Docket Number: No. 15–CF–1369,15–CF–1369
• Citation: 181 A.3d 651
• Parties: Darius BRISCOE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

181 A.3d 651

Darius BRISCOE, Appellant,

v.UNITED STATES, Appellee.

No. 15–CF–1369

District of Columbia Court of Appeals.

Submitted February 24, 2017

Decided March 29, 2018

Donna L. Biderman was on the brief for appellant.

Channing D. Phillips, United States Attorney at the time, and Elizabeth Trosman, Nebiyu Feleke, Tamika Griffin, and Priya Naik, Assistant United States Attorneys, were on the brief for appellee.

Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

Concurring opinion by Associate Judge McLeeseat page 665.

Separate Statement by Associate Judge Thompsonat page 666.

Opinion by Senior Judge Ruiz dissenting in part at page 667.

Thompson, Associate Judge:

A jury convicted appellantDarius Briscoe of armed robbery, assault with a dangerous weapon ("ADW"), and two counts of possession of a firearm during a crime of violence ("PFCV").Appellant asserts that the government violated Superior CourtCriminal Procedure Rule 16 and his rights under Brady v. Maryland¹ by failing to obtain and produce the contents of a surveillance camera attached to an apartment building located on the street where the offenses occurred, and he argues that the government should have been sanctioned for that conduct.He also argues that the trial court erred in assuming that it was required to impose the statutory five-year mandatory-minimum sentence for a "while armed" crime of violence and the same mandatory-minimum sentence for PFCV, and in failing to recognize that it could exercise sentencing discretion under the Youth Rehabilitation Act("YRA").Reviewing appellant's claims for plain error, we conclude that appellant is not entitled to relief.Accordingly, we affirm.

I.

Trial in this case commenced on October 8, 2015.The evidence showed that on June 21, 2015, Troy Thomas was assaulted and robbed at gunpoint by a man he later identified from a photo array as appellant.Thomas had just stopped at a convenience store to bet on horse races.As he was leaving the store, he saw appellant approaching with a bicycle.As Thomas was walking home, appellant stopped him in an alleyway, pointed a handgun at him from approximately ten to fifteen feet away, and said, "I heard you been hitting them horses.Hand that shit up."Four other people then joined appellant in the alleyway, whereupon appellant ordered them to search Thomas's pockets.After the search, the group took Thomas's phone, wallet, identification cards, Metro transportation card, and sixty dollars in cash.Appellant then pulled the trigger of the handgun.When no shot fired, Thomas took off running.

Thomas, afraid to return home that night, fled to his girlfriend's home.The following morning, when he returned home, he found officers responding to a different incident on his street, informed one of them about the previous night's robbery, and described his assailant.The next day, Thomas saw appellant coming down his street on a scooter and called Detective Sean Crowley of the Metropolitan Police Department("MPD") to report the sighting.After hearing a lookout broadcast over the radio, MPD Officer Caleb Bacon spotted appellant, whom he recognized by name, on a scooter and chased him.Appellant got away, but Officer Bacon provided information as to appellant's identity to Detective Crowley, who prepared a nine-person photo array containing appellant's picture.From that array, Thomas identified appellant as the person with the gun who had robbed him.

The government's trial evidence included video surveillance footage from a camera located outside the convenience store.²Thomas identified appellant in the convenience store video footage.MPD Investigator Sean Rutter testified that he had spotted a surveillance camera in the rear of an apartment building that looked into the alley where the incident occurred.However, Investigator Rutter "was not able to make contact with the homeowner" and, therefore, never received any footage the camera may have contained.Rutter also testified that he was "not sure" whether the camera "was fake" and that in his experience, "half of the time," cameras are "put up for deterrence purposes" only and do not actually work.

Appellant did not testify, but his trial counsel argued mistaken identity.Counsel told the jury that the man shown in the convenience store surveillance video looked like, but was not, appellant.

Citing Brady and Super. Ct.Crim. R. 16, appellant now asserts that "[t]he government did not preserve [the footage from the surveillance camera attached to the apartment building], and because of its failure, [he] was prejudiced," a circumstance that he contends warranted sanctions against the government.Appellant also argues that the sentence the trial court imposed was based on an "incorrect understanding of the law," because the YRA "supersedes the mandatory minimum in this case."

II.

As to appellant's Brady and Rule 16 claims, the rule that guides our analysis is that where—as here—"defense counsel fails to move for the production of evidence and does not request the imposition of sanctions against the government for failing to preserve discoverable material, the trial court's failure to sua sponte impose a sanction will only be reversed upon a finding of plain error."Sheffield v. United States , 397 A.2d 963, 968(D.C.1979).

Where no objection was made during the sentencing proceeding, this court applies plain-error review to a claim that the trial court erroneously believed that the sentence it imposed was mandatory.SeeVeney v. United States , 738 A.2d 1185, 1198(D.C.1999).The plain error test requires that there "be (1)‘error,’(2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ "Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718(1997)(internal brackets omitted)(quotingUnited States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993) )."If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."Id. at 467, 117 S.Ct. 1544(internal quotation marks and brackets omitted).

Our review of questions of statutory interpretation is de novo .Peterson v. United States , 997 A.2d 682, 683(D.C.2010).

III.

We can dispose of appellant's first claim summarily.To establish a Brady violation, an appellant must first show that the information the government failed to produce was in its possession; "[i]f the government does not possess the requested information, there can be no Brady violation."Guest v. United States , 867 A.2d 208, 212(D.C.2005)."The Brady principle does not imply the government's duty to investigate—and come to know—information which the defendant would like to have but the government does not possess."Id.(internal brackets omitted)(quotingLewis v. United States , 393 A.2d 109, 115(D.C.1978) ).Rule 16 similarly requires the government to produce certain items "if the item is within the government's possession, custody, or control."Super. Ct.Crim. R. 16(a)(1)(E)."If [the requested item was not ever within the government's possession], there can be no Rule 16 violation."Myers v. United States , 15 A.3d 688, 690(D.C.2011).

Here, appellant has failed to show that the government was ever in possession of any contents of the video camera attached to the apartment building.The only pertinent evidence in the record was the testimony of Investigator Rutter, who testified that he"was not able to make contact with the homeowner" to obtain any video footage the camera might have captured, that he did not even know whether the camera was "fake," and that in his experience, video surveillance cameras frequently do not work and are mounted solely for their deterrent effect.³Further, the government had no duty under the Due Process Clause or under Rule 16 to take steps to investigate and obtain any video footage the camera, which the government did not possess or control, might have contained.SeeGuest , 867 A.2d at 212;cf.Koonce v. District of Columbia , 111 A.3d 1009, 1016(D.C.2015)(stationhouse video of person arrested for DUI must be preserved under Rule 16).Accordingly, we have no basis for concluding that the government violated Brady or Rule 16 by not producing any evidence from that camera and, likewise, no basis for concluding that the trial court plainly erred by not sanctioning the government.⁴

IV.

A.

During the sentencing proceeding, defense counsel said that "[t]here are guidelines that are before the [c]ourt[,]" but urged the court to "consider the sentence under the [YRA]," telling the court that he hoped appellant would be allowed "to have Your Honor sign an order of expungement should the [c]ourt go along the lines [counsel was] requesting."The prosecutor said that the government would "rest largely" on its Memorandum in Aid of Sentencing, which—citing appellant's "substantial criminal history" and asserting that his conduct was "only getting more violent"—recommended that appellant be sentenced to consecutive sentences of sixty months of imprisonment and three years of supervised release for his robbery while armed and PFCV convictions, and to a concurrent sentence of twenty-four months' imprisonment and three years of supervised release for the ADW conviction.The prosecutor told the court that the government "defer[red] to the [c]ourt""in reference to the Youth Act."

Before announcing appellant's sentence, the court cited appellant's record of prior convictions (referring to "all ... the other cases that [appellant] had") and also noted the "really hard impact" of appellant's offenses on victim Thomas.In addition, the court emphasized that it took a period of being locked up for appellant(who earned his GED while in jail awaiting trial and sentencing) to "apply [him]self."The court said that it would adhere to the voluntary sentencing...