Haye v. United States, s. 11–CM–1710

• Decision Date: 14 March 2013
• Docket Number: Nos. 11–CM–1710,11–CM–1711.,s. 11–CM–1710
• Parties: Robert Augustus HAYE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

67 A.3d 1025

Robert Augustus HAYE, Appellant,

v.UNITED STATES, Appellee.

Nos. 11–CM–1710, 11–CM–1711.

District of Columbia Court of Appeals.

Submitted Nov. 27, 2012.

Decided March 14, 2013.

Sidney R. Bixler was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Elizabeth Alexander, and Kristina L. Ament, Assistant United States Attorneys, were on the brief for appellee.

Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and KING, Senior Judge.

OBERLY, Associate Judge:

Robert Augustus Haye ¹ was convicted of unlawful entry ² and criminal contempt ³ when he entered 2301 11th Street, part of a public housing complex known as Garfield Terrace in Northwest Washington, D.C., in violation of a barring notice ordering him not to enter Garfield Terrace and a court order directing him to stay away from 2301 11th Street. On appeal, he challenges his convictions, arguing that: (1) unlawful entry and criminal contempt, in this case, are the same offense for double jeopardy purposes; (2) the evidence was insufficient to support Haye's unlawful entry convictions because the government did not prove he had notice that he was barred from Garfield Terrace; and (3) the trial court erred in not declaring a mistrial after a witness testified about prior instances in which Haye had been barred from Garfield Terrace. We agree with Haye's double jeopardy claim that, under the facts of this case, he cannot be punished twice for unlawful entry and criminal contempt, and we remand with instructions to vacate one of Haye's convictions. In all other respects, we affirm the trial court's judgment.

I. Facts

This consolidated appeal arises from two separate cases stemming from two incidents in September 2010. The origin of the cases dates back to December 2009, when Haye was arrested for drug possession in the Garfield Terrace housing complex. Darnell Douglass, a police officer with the District's Housing Authority, approached Haye as he was being arrested and notified him that, as a result of his arrest, he would be barred from entering Garfield Terrace for the next five years. Officer Douglass then issued a Housing Authority barring notice, but because Haye was in handcuffs when he issued the barring notice, Officer Douglass gave the notice to the arresting officer to place in a bag with Haye's belongings. Although he did not know whether Haye ever received the physical copy of the barring notice, Officer Douglass explained to Haye “in detail the parts of the barring notice,” including a description of the boundaries of Garfield Terrace and the five-year duration of the bar. He “explained to [Haye] that he is barred from Garfield property, that under no circumstances is he permitted to enter back onto the property, even if he's invited by a guest [or] resident,” including Haye's mother who lived in Garfield Terrace.

On two occasions in September 2010, Haye returned to Garfield Terrace. On September 17, he was arrested in his mother's Garfield Terrace apartment at 2301 11th Street by Metropolitan Police Department Sergeant Ramey Kyle who had learned of Haye's presence in the building when he attended a community meeting there and the residents were complaining about Haye. As a pretrial condition of his release, the Superior Court ordered Haye to “stay away from ... the entire premises of 2301 11th Street, Northwest, Washington, D.C.”

On September 22, 2010, the property manager for Garfield Terrace, Dorothy Glenn, saw Haye coming toward 2301 11th Street and saw him “walk[ ] in the building.” Glenn testified that she recognized Haye because he had been barred from the premises several times before, and she knew he was the son of a Garfield Terrace resident.

The trial court found Haye guilty of unlawful entry and criminal contempt based on his return to Garfield Terrace on September 22 and of unlawful entry based on his September 17 return. In finding Haye guilty of unlawful entry on September 22, the trial court found that Officer Douglass had given Haye “sufficient notice ... as to where he was barred from” and that Haye “was specifically given the boundaries by Officer Douglass ... and [he] heard what was said to him,” and on September 22, “a person who knew him well, ... Ms. Glenn[,] saw him back at Garfield Terrace.” The trial court also found Haye guilty of contempt based on his September 22 return, concluding that the government had proved that Haye “got notice” of the conditional-release order and “willfully violated” it. Haye was found guilty of a second count of unlawful entry for his September 17 return “based upon all the testimony [the trial court] heard, the barring notice, the fact that it was orally given to him, that there's no evidence he didn't hear it or understand it, that he was aware that he was barred and he returned voluntarily.”

II. Discussion

A. Successive Punishments for the Same Offense

The Double Jeopardy Clause of the Fifth Amendment protects against multiple punishments for the same criminal offense, unless multiple punishments are expressly authorized by the legislature. Whalen v. United States, 445 U.S. 684, 689, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (holding that “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so,” and “where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent”).⁴ To determine whether multiple punishments are for the same criminal offense, we apply the “ ‘same-elements' test,” otherwise known as the Blockburger⁵ test. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); see also Bradley v. United States, 856 A.2d 1157, 1160 (D.C.2004). The Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696, 113 S.Ct. 2849.

The Blockburger test also applies in the context of criminal contempt convictions for violations of conditional-release orders. In Dixon, a case like this one involving a contempt prosecution under D.C.Code § 23–1329 (as well as a violation of a civil protection order), Justice Scalia, writing for the majority, applied the Blockburger test to hold that the prosecution for criminal contempt based on violating a conditional-release order that prohibited commission of any criminal offense barred the subsequent prosecution for the underlying criminal offense. 509 U.S. at 697–700, 113 S.Ct. 2849.

A majority of the Dixon Court agreed that the Blockburger “same-elements” test applies to double jeopardy claims involving prosecutions for criminal contempt and substantive criminal law violations; however, the fractured opinion produced no consensus on how to apply the Blockburger test in this context. To determine the elements of the contempt offense, Justice Scalia looked at the provision of the order that was violated because “the statute by itself imposes no legal obligation on anyone.... Dixon's cocaine possession ... was not an offense under § 23–1329 until a judge incorporated the statutory drug offense into his release order.” Dixon, 509 U.S. at 697–98, 113 S.Ct. 2849. Chief Justice Rehnquist, on the other hand, would have examined the statutory elements of criminal contempt. See id. at 714, 113 S.Ct. 2849 (Rehnquist, J., concurring in part and dissenting in part) (“Blockburger's same-elements test requires us to focus, not on the terms of the particular court orders involved, but on the elements of contempt of court in the ordinary sense.”).

The government urges us to apply the Blockburger test in the “traditional way” advocated by Chief Justice Rehnquist in his Dixon dissent.⁶ Although neither position garnered a majority,⁷ our decision in Clark v. United States, 28 A.3d 514 (D.C.2011), counsels that we look to the content of the conditional-release order to determine whether it contains an element not contained in the unlawful entry offense.

In Clark, we applied Dixon to determine whether assault was the same offense as a violation of a civil protection order (“CPO”) based on the same incident and thus whether the trial court had erroneously imposed multiple punishments for the same offense. Clark was convicted of violating a CPO, which ordered him to “stay at least 100 feet away from the complainant ... and also provided that he shall not assault” the complainant. Clark, 28 A.3d at 516–17. He also was convicted of simple assault based upon the same incident. Id. at 517. We observed that the “violation of the CPO was premised upon his act of ‘approaching and making contact with [the complainant]’—an infraction of the provision that he stay at least one hundred feet away from her.” Id. at 518 (alteration in original) (quoting the information filed by the government). The trial court had “found appellant guilty of contempt because he ‘ returned [to complainant's residence] ... and should have known that he was in violation of a court order.’ ” Id. (alterations in original). We concluded that “although appellant's CPO incorporated the crime of simple assault by ordering that he ‘shall not assault, threaten, harass, or stalk petitioner,’ he was ultimately prosecuted and convicted of violating the CPO for conduct other than assault, thereby rendering it a different criminal offense.” Id.

In finding no double jeopardy violation, Clark held that when a defendant raises such a claim involving prosecution for a CPO violation, “the Blockburger analysis is provision-specific, focusing on the particular CPO condition that is alleged to have been violated.” Clark, 28 A.3d at 518. We looked at the content of the CPO to determine which provision Clark had violated and then compared...