In re DAJ

• Decision Date: 01 May 1997
• Docket Number: No. 96-FS-1069.,96-FS-1069.
• Citation: 694 A.2d 860
• Parties: In re D.A.J.; District of Columbia, Appellant.
• Court: D.C. Court of Appeals

694 A.2d 860

In re D.A.J.; District of Columbia, Appellant.

No. 96-FS-1069.

District of Columbia Court of Appeals.

Argued March 27, 1997.

Decided May 1, 1997.

Sidney R. Bixler, Assistant Corporation Counsel, with whom Jo Ann Robinson, Acting Corporation Counsel, Robert R. Rigsby, Deputy Corporation Counsel, Enforcement Division, and Rosalyn Calbert Groce, Director, Policy and Appeals Branch, were on the brief, for appellant.

James Forman, Jr., Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellee.

Before FARRELL and REID, Judges, and KERN, Senior Judge.

REID, Associate Judge.

The District of Columbia appeals the grant of a motion to suppress tangible evidence, including a gun and ammunition, found near appellee D.A.J. at the time of his arrest, and to suppress a statement D.A.J. allegedly made during his arrest. D.A.J. was arrested and charged by a delinquency petition with one count of assault on a police officer, in violation of D.C.Code § 22-505(b) (1996); one count of carrying a pistol without a license, in violation of D.C.Code § 22-3204 (1996); one count of possession of an unregistered firearm, in violation of D.C.Code § 6-2311(a) (1995); and one count of possession of unregistered ammunition, in violation of D.C.Code § 6-2361 (1995). We affirm.

FACTUAL SUMMARY

Two officers of the Metropolitan Police Department, Anthony Moye and Thomas Jefferson, were on patrol duty in the 2200 block of Alabama Avenue, S.E., on June 25, 1995, at approximately 3:50 p.m. Officer Jefferson saw a blue vehicle with "homemade tags" and a broken vent window. He suspected that the automobile, which had four young male occupants, had been stolen. The officers activated their emergency lights and horn to stop the car. The vehicle pulled into the parking lot of a Jerry's Carryout, and the officers stopped about five feet behind it. As the officers got out of their car to investigate, one of the passengers in the stopped vehicle, later identified as D.A.J., began to exit the vehicle. Officer Moye, who at the time had been on the police force for approximately one year, ordered all of the passengers to stay still. While three of the occupants "put their hands up in the air," D.A.J. continued to get out of the car and ignored orders to get back into the vehicle. The officers approached the stopped car without drawing their weapons.

Officer Moye, who testified at the hearing on D.A.J.'s motion to suppress, stated that he "noticed a gun in D.A.J.'s left hand" and that "it looked like a black revolver." D.A.J. "was holding the gun in his left hand close to his body, sort of cradled." He told D.A.J. twice to drop the gun, but D.A.J. began to run. Officer Moye pursued him. According to him, D.A.J. "turned toward him, pointing the gun back at him" with his left hand. The trial court described Officer Moye's demonstration of D.A.J.'s position and action:

Let the record reflect that the witness — standing, facing counsel, extended his left arm straight out from the shoulder and turned his body and arm counter-clockwise; that is, right to left, and pointed the gun in the direction just off his rear left shoulder.

Officer Moye shot D.A.J. twice. One of the shots hit D.A.J. in the hip and Officer Moye saw D.A.J. "drop his weapon and begin to run." D.A.J. "put up a struggle, a fight" as Officer Moye sought to apprehend him. In the course of the struggle, D.A.J. allegedly made an incriminating statement to the officer. When counsel for the District asked why he fired his weapon, Officer Moye responded, "I felt that my life was threatened. I feared for my life."

Two lay persons testified for the defense. D.A.J.'s mother, P.J., said she is left-handed but that D.J. is right-handed. Xiao Chen, a college student who worked at Jerry's Carryout at the time of the incident, testified as a defense witness. She did not know D.A.J. While she was working behind the counter at Jerry's on June 25, 1995, she looked out through the glass door and three glass windows. She "saw a boy's car pull up in front of the store ... and the police car pull behind him." A boy (D.A.J.) got out of the car and ran. D.A.J.'s hands were pumping up and down as he ran. He did not have a gun in either hand, but the officer had a gun in his hand while running. She saw the officer fire his gun, and heard a couple of shots; however, she did not see D.A.J. when the bullet struck him. D.A.J. did not point a gun or his arm at the officer, and "had his back to the officer" when the officer fired his gun.

Dr. John Smialek, Chief Medical Examiner for the State of Maryland and a forensic pathologist, also testified as a defense witness. He specializes in determining how injuries occur.¹ Dr. Smialek reviewed D.A.J.'s medical records, photographs and part of a hearing transcript before forming an opinion. He "found evidence that Mr. J. had sustained a gunshot wound to the back of his left hip, that the wound had traveled approximately two to three inches through the tissue of his left hip." In response to a question from the trial court concerning whether "there is a way to determine from the path of the bullet whether or not in fact the body was in transit at the time it was struck," Dr. Smialek stated,

the bullet is striking with such velocity that it's going to create a wound suspended in time as to what the position of that body was to the person shooting the weapon. So, if you take a sequence of events, a person being shot, say, directly in the back, that would create a wound track going directly from front to back. If the person is rotating, then you are going to get an angle.

When the trial court asked whether he was "able to say, with a degree of certainty . . . that at the time the bullet struck . . . the path of the bullet is such that the direction had to be . . . back to front, rather than some degree of side," Dr. Smialek replied, "yes, sir. It was directly back to front." The trial court asked whether counsel had "any questions based on the Court's questions." Counsel for the District responded in the negative, as did D.A.J.'s counsel.

The trial judge described D.A.J.'s case as "unusual" because "the court is rarely in a position that it has such startling varying description of the same identical set of circumstances by people equally able to speak on the issues." The trial court had to resolve conflicting testimony as to whether D.A.J. had a gun, and whether his back was facing Officer Moye when the officer shot him. Because he could not discredit the testimony of Ms. Chen, D.A.J.'s mother or Dr. Smialek, the trial judge concluded that he could not credit Officer Moye's testimony, "not necessarily because it was untrue, but simply because it is inconsistent with all the evidence available to the Court." Hence, the trial judge concluded that at the time he fired the shots at D.A.J., Officer Moye "could not have been in eminent sic; imminent fear for his own life, because in fact he was facing the back of the respondent. And therefore, ... his seizure was not lawful under those circumstances, because it was not consistent with the circumstances he faced." The trial court also said, "if D.A.J. had a gun in his hand at that time, it could not have been pointed at the officer." Accordingly, because "the bullet passing through D.A.J.'s body did constitute a seizure" that was not lawful, the trial court granted D.A.J.'s motion to suppress.

The government filed a motion for reconsideration in which it argued that the trial court should have discredited the testimony of Ms. Chen; that the testimony of Officer Moye and that of Dr. Smialek were consistent; and that the testimony of P.J. was inconsequential because D.A.J. could have used his left hand even though he is right-handed. The trial court denied the motion, stating in part that "the Government has alleged no legal error in the court's ruling, and only argues that the Court improperly weighed the testimony of witnesses."²

ANALYSIS

The District contends that even if Officer Moye used excessive force, he had probable cause to arrest or at least seize and frisk D.A.J., and the gun therefore should not have been suppressed. It argues that where the police have a legitimate basis for stopping and searching an individual, the exclusionary rule does not require suppression of evidence merely because the force used in effecting the seizure was excessive. The remedy in such a case, the government says, should be a civil suit or equivalent relief, but not the suppression of probative and reliable evidence.

This is a complex and problematical issue involving the scope of the exclusionary rule and the Fourth Amendment which has never been addressed by this court. Significantly, however, the District did not raise this issue in the trial court, either during the hearing...