Graves v. United States

• Decision Date: 25 February 2021
• Docket Number: No. 19-CM-418,19-CM-418
• Citation: 245 A.3d 963
• Parties: Rickey GRAVES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

245 A.3d 963

Rickey GRAVES, Appellant,

v.UNITED STATES, Appellee.

No. 19-CM-418

District of Columbia Court of Appeals.

Submitted October 6, 2020

Decided February 25, 2021

Jeffrey Light, Washington, for appellant.

John P. Mannarino, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman, Associate Judge, and Washington, Senior Judge.

Glickman, Associate Judge:

Rickey Graves appeals his misdemeanor convictions in a bench trial for assault¹ and second-degree theft.² He contends, inter alia , that the trial court violated his constitutional rights by not allowing him to testify that he acted in self-defense, which the court itself described as "[t]he only unresolved issue[ ]" in the trial. Because we agree with appellant that the court erred, that he did not waive or forfeit his claim of error, and that the constitutional error was not harmless beyond a reasonable doubt, we reverse appellant's conviction for simple assault. We affirm his theft conviction.

I.

On January 9, 2019, Officer Marc Boucheron of the Metropolitan Police Department (MPD) was working in the security office of a local grocery store. Watching the security cameras, Officer Boucheron saw appellant go to the beer and wine section, put a bottle of wine in his pants, and then walk toward the exit of the store without paying. Officer Boucheron, who was in full police uniform, left the security office and followed appellant. Catching up to him in the store's vestibule, Officer Boucheron grabbed appellant "close to his neck." A struggle ensued, during which appellant bit Officer Boucheron's hand. Appellant was charged with second-degree theft for taking the bottle of wine and simple assault for the biting.

In his opening statement at trial, appellant's counsel indicated that he would contest only the assault charge. Counsel claimed that video footage from Officer Boucheron's body-worn camera would show that appellant bit the officer in self-defense because Officer Boucheron used excessive force by grabbing him around the neck and choking him.³ The judge, who earlier had expressed his understanding that self-defense was "[t]he only unresolved issue[ ]" to be tried, commented that it "might be excessive" to "put [a suspect] in a chokehold for a theft case." The judge stated he would watch the video footage to see "if I think the force was excessive, ... [b]ut [appellant]’s not going to be able to say he acted in reasonable self-defense unless there was excessive force."

Officer Boucheron was the government's only witness. He testified on direct examination that once he caught up with appellant, he asked him to "stop and hand over the product." Appellant pulled the bottle out of his pants and held it "by the ... neck." Officer Boucheron said it appeared to him that appellant could "use it as a weapon." The officer testified that he placed one hand on appellant's chest and held onto his shirt, at which point appellant "came down and bit [him] on the hand." Officer Boucheron then used "loud verbal commands" and "several ... hand strikes to ... get [appellant] to ... comply." Appellant and Officer Boucheron fell to the ground, and the officer was able to place appellant in handcuffs.

On cross-examination, Officer Boucheron agreed that appellant did not threaten him with the bottle. Defense counsel then confronted Officer Boucheron with the footage of appellant's arrest from the officer's body-worn camera, attempting to establish through cross-examination that it showed Officer Boucheron grabbing appellant not by the shirt, but violently and by the neck.⁴ The officer denied grabbing appellant "around the neck," asserting that it "looks like the collar[,] if anything." On redirect examination, the prosecutor asked Officer Boucheron, "when you grabbed him up here near his neck, were you grabbing onto his body or the clothing?" "Clothing," the officer stated.

Appellant's biting of Officer Boucheron's hand was not visible in the body-camera footage. On redirect examination, though, Officer Boucheron confirmed that appellant bit him early in the encounter, "[a]s soon as we went around."

After redirect examination, the government rested its case and appellant moved for a judgment of acquittal. The trial judge denied the motion. The judge acknowledged that Officer Boucheron "certainly grabbed [appellant] in his throat area" and "[appellant] kept saying don't choke me" (which could be heard on the body-camera footage). Nonetheless, the judge then stated, "I don't think there's any self-defense on this record, and I'm not going to permit any self-defense testimony because I don't think the [officer's] use of force as a matter of law on these facts was excessive." The judge told appellant that he could testify "about anything else," but "if he doesn't want to testify, I'll do the Boyd inquiry."⁵

Defense counsel did not object to the trial judge's ruling and said appellant would not testify and had no further evidence to present. Addressing appellant directly, the judge confirmed that, "in light of my ruling [that] I'm not going to permit a self-defense claim," appellant had decided to rest his case without taking the stand and testifying on his own behalf. The judge was satisfied that appellant "made a knowing, intelligent, and voluntary decision not to become a witness in this case."

After closing arguments, the trial judge found appellant guilty on both charges. In addressing the assault charge, the judge found that Officer Boucheron "didn't give [appellant] much opportunity to submit," that he "grabbed [appellant] in the area that was certainly close to his neck," and that the force was "certainly ... violent." Nonetheless, the judge ruled that Officer Boucheron did not use excessive force against appellant, and therefore appellant was not justified in biting him.⁶

II.

Appellant's principal claim on appeal is that the trial judge violated his constitutional right to present a complete defense by precluding him from testifying to refute the government's showing on the issue of excessive force. In response, the government argues that appellant waived the claim and, alternatively, that he has not shown plain error.

A.

The government argues that appellant waived his constitutional claim by inviting the error in his opening statement. It points to defense counsel's opening remarks that:

[I]t's the [g]overnment's burden to prove beyond a reasonable doubt that the force used by the officer was reasonable. It's not our burden to prove anything. In this case, there's body worn camera of this. We don't hardly need testimony, and we certainly don't need testimony looking back saying this is what happened when we can see it ourselves on the body worn camera . (Emphasis added.)

The government homes in on the italicized comment, arguing that it induced the error by "inviting the court to rely on the video in lieu of testimony."

"Generally, the invited error doctrine precludes a party from asserting as error on appeal a course that he or she has induced the trial court to take."⁷ We are not persuaded that defense counsel's remarks in the opening statement induced, or were in any way to blame for, the challenged judicial ruling in this case. Counsel simply expressed confidence that the camera footage so clearly showed excessive force that the government would not be able to shoulder its burden of proof, and that the defense therefore would not "need" to present additional evidence to be entitled to an acquittal at the close of the government's case. Counsel never said he would refrain from presenting evidence supplementing the video footage if the court denied his MJOA and it became necessary for the defense to do more to rebut the reasonableness of Officer Boucheron's use of force, and counsel certainly did not invite a ruling prohibiting appellant himself from testifying on the issue. In fact, the judge's ruling does not suggest it was defense counsel's opening statement that induced him to rule as he did, as the judge did not mention counsel's opening remarks at all and instead explained that he was barring "any self-defense testimony" simply because, in the judge's view of the evidence presented up to that point, he did not "think" Officer Boucheron had used excessive force. Consequently, we reject the government's argument that appellant waived his claim of constitutional error by inviting the judge to preclude his testimony.

B.

The government argues that even if appellant did not waive his constitutional claim, he nonetheless forfeited it by failing to object to the trial judge's ruling, and the claim therefore is subject to "the strictures of ‘plain error’ review."⁸ But in the highly unusual circumstances of this case, we disagree with that argument as well.

We will not "apply plain error review in a rigid fashion which elevates form over the practical dynamics of trial litigation."⁹ We can consider more than just the presence or absence of a contemporaneous objection. For example, we have held that a claim is not forfeited where, despite defense counsel's failure to object, the trial judge demonstrably was aware of the potential error and broached it sua sponte .¹⁰ When that is so, we have explained, the purpose of requiring a timely objection to the error, which is "to alert the trial court and give it an opportunity to correct the error," has been met.¹¹

We find that to have been the situation here. The trial judge twice raised sua sponte the possibility that he had ruled incorrectly by forbidding appellant to testify that he acted in self-defense. The judge explicitly stated, immediately after he precluded appellant's testimony, that appellant would "have the excessive force issue that he can raise on appeal as a matter of law that I incorrectly decided and precluded him from offering...