Howard v. United States, No. 18-CF-157

• Decision Date: 19 November 2020
• Docket Number: No. 18-CF-157
• Citation: 241 A.3d 554
• Parties: Corey T. HOWARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

241 A.3d 554

Corey T. HOWARD, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-157

District of Columbia Court of Appeals.

Argued March 11, 2020

Decided November 19, 2020

Jennifer Williams, with whom Samia Fam and Shilpa Satoskar, Public Defender Service, were on the brief, for appellant.

Michael E. McGovern, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Emile C. Thompson, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Associate Judge, and Washington and Fisher,^* Senior Judges.

Fisher, Senior Judge:

Appellant Corey Howard challenges his convictions for one count of Unlawful Possession of a Firearm (prior felony conviction), D.C. Code § 22-4503(a)(1) ; one count of Possession of an Unregistered Firearm, D.C. Code § 7-2502.01 ; one count of Unlawful Possession of Ammunition, D.C. Code § 7-2506.01(a) ; and two counts of Possession of a Large Capacity Ammunition Feeding Device, D.C. Code § 7-2506.01(b). His appeal asserts that: (1) the trial court abused its discretion when it refused to issue a missing evidence instruction sanctioning the government for its failure to preserve certain items found in a backpack alongside a magazine for the Glock 17; and (2) the trial court violated his Sixth Amendment rights by limiting defense counsel's questioning of Officer Mark Minzak, which was intended to demonstrate bias. We affirm.

I. Background

On June 29, 2017, appellant Howard was a passenger in a Toyota Corolla that was pulled over for failing to come to a complete stop at a stop sign. An officer testified that, after the police activated their emergency lights, "we saw the front passenger look over his shoulder at us, and then lean forward and then lean back in the seat." Based on their training and experience, the officers believed the movements indicated that appellant was trying to hide something. Five officers, all members of the Gun Recovery Unit ("GRU"), approached the car after it pulled over. One officer, Officer Hugee, drew his gun while approaching; the government explained that he did so because the car's side windows were "heavily tinted" and it was difficult to see "what [was] going on inside the car." Appellant was ordered to step out of the vehicle, at which point an officer conducted a protective pat down; the officer testified that appellant was "shaken," "very nervous," and "looking towards the inside of the vehicle while I'm talking to him."

By shining a flashlight through the front windshield and illuminating the area underneath the front passenger seat, four different officers were able to see the barrel of a firearm.¹ The gun was located on top of a piece of paper and a security services identification badge² and was identified as a Glock 17. The gun contained a "standard 17-round magazine" and ammunition.

After discovering the handgun, the officers searched the car, including the trunk, which contained a number of bags and loose items. One bag is relevant to this appeal: a black backpack, in which Officer Minzak found an additional 17-round magazine for a Glock 17, such as the one found underneath the passenger seat. The backpack also contained a number of other items, including a job application with Howard's name on it, a size-Large black hoodie, a size-XXL long-sleeve shirt, and a pair of jeans. Those items were preserved by police and taken into evidence, along with the backpack itself. Officer Minzak testified that the police preserved those items because they were "pertinent or relevant to the arrest of Mr. Howard," and that he focused on items that he thought were a "priority" and "important to the case."

Other items in the backpack were not taken into police custody. They were instead left in the trunk of the car, which was driven away by appellant's brother. Some of the other items that were in the backpack are visible in a photograph of the backpack, and an unidentified number of additional items may have been discarded before the photograph was taken. Smaller items in the photograph are difficult to see clearly, but the photograph shows, at a minimum, a key, "tissue paper," a "yellow thing," a "silver" item, and a "green piece of material" that may have been a bag.

Defense counsel initially moved to dismiss the indictment for failure to preserve the complete contents of the backpack. After that motion was denied, defense counsel requested a missing evidence instruction with respect to "items in the backpack that the officers on scene chose not to recover," "other items in the trunk" that were not collected, and the identification badge that was underneath the gun. The trial judge denied the request, reasoning that, in light of the photograph and the ability of defense counsel to argue why the missing items mattered, "it would be overstating to give an actual missing evidence instruction." Appellant asserts that the judge abused her discretion in denying a missing evidence instruction, which he contends was necessary to sanction the government for its failure to keep all of the backpack's contents.

The second issue on appeal involves the scope of cross-examination concerning whether Officer Minzak was biased because he had a motive to curry favor with the government. Prior to trial, defense counsel subpoenaed documents from the Office of Police Complaints ("OPC") relating to the officers involved in appellant's arrest. OPC provided documentation about one closed complaint and three pending investigations, only one of which is relevant on appeal. In that matter, the complainant alleged that Officer Minzak had used excessive force and harassed him during a traffic stop on May 12, 2017. The complainant also alleged that he was injured because of the officers’ rough treatment and that the officers had approached the vehicle with guns drawn. Defense counsel argued that the risk the investigation posed to Officer Minzak's career generated a classic form of bias — motive to curry favor with the government — and sought to obtain more information about the incident giving rise to the investigation.³

The motions judge, Judge Beck, issued a protective order forbidding defense counsel from contacting the complainant, and the trial judge, Judge McKenna, declined to amend the order. Judge McKenna explained that efforts to contact the complainant and/or create extrinsic evidence from any information gleaned could unduly impact the pending investigation and invade the privacy of the complainant. Additionally, she reasoned that "outside information that Officer Minzak is not currently aware of[ ] could have no bearing on his current view of the gravity of the situation," making it inappropriate "to try to introduce before the jury prior bad acts which have not even been established through a substantiated investigation" and risking "a mini trial on the subject of the pending OPC complaint."

At trial, defense counsel cross-examined Officer Minzak on the following topics: (1) asking whether there was a pending OPC investigation for harassment and use of excessive force; (2) establishing that the investigation was pending at the time of his testimony as well as at the time of the traffic stop in this case; (3) exploring the allegations in the complaint, including confirmation that the OPC complainant reported that he was injured during the encounter; and (4) detailing the potential consequences for Officer Minzak if the complaint was sustained, including losing his job and the possibility of criminal charges being filed by the United States Attorney's Office if OPC found that he injured a civilian. Appellant now claims that restrictions placed on examining Officer Minzak deprived the defense of a sufficient opportunity to explore his potential bias and thus violated the Sixth Amendment.

Before closing arguments, the trial judge reminded counsel that she could "argue inferences that could be drawn" about the failure to preserve the other contents of the backpack or about the sloppiness of the police work more generally, but counsel decided to focus elsewhere. As to the importance of the OPC investigation, defense counsel emphasized to the jurors that Officer Minzak was "being investigated for stopping a car for a traffic violation, for guns being drawn, for searching the car, for injuring the victim." She argued that those circumstances gave Officer Minzak "a motive to make this seem legit. It gives these officers a motive to make it ... seem like it was a legitimate practice to go upon that Corolla holding a gun." Counsel highlighted that "Officer Minzak ... faces penalties ... if he is found to have violated that other young man's rights." After noting that he could get fired and he could get suspended without pay, counsel argued that those looming possibilities gave Officer Minzak "a reason to want to convert his testimony" and "to conceal key facts from his statements to you."

II. Legal Analysis

A. Rule 16 and the Contents of the Backpack

Appellant argues that the failure to preserve the full contents of the backpack violated Superior Court Criminal Rule 16 (" Rule 16"). We construe Rule 16 de novo and review the decision to deny a missing evidence instruction for abuse of discretion. Weems v. United States , 191 A.3d 296, 300 (D.C. 2018). Rule 16(a)(1)(E) states, in relevant part, that "the government must permit the defendant to inspect and to copy or photograph ... tangible objects ... if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; ... or (iii) the item was obtained from or belongs to the defendant." Evidence in police possession is considered to be within the "custody or control" of the government. Robinson v. United States, 825 A.2d 318, 327 (D.C. 2003). To establish materiality, appellant must demonstrate "a relationship between the requested evidence and the issues in the...