Miller v. United States

• Decision Date: 06 June 2019
• Docket Number: No. 13-CM-628,13-CM-628
• Citation: 209 A.3d 75
• Parties: Francisca C. MILLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

209 A.3d 75

Francisca C. MILLER, Appellant,

v.UNITED STATES, Appellee.

No. 13-CM-628

District of Columbia Court of Appeals.

Argued May 7, 2019

Decided June 6, 2019

Donna L. Biderman for appellant.

Lauren R. Bates, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Rikki D. McCoy, Assistant United States Attorneys, were on the briefs, for appellee.

Before Beckwith and McLeese, Associate Judges, and Nebeker, Senior Judge.

McLeese, Associate Judge:

1After a bench trial, appellant Francisca Miller was found guilty of attempted possession of a prohibited weapon and attempted threats to do bodily harm. Ms. Miller is not a United States citizen, and it is uncontested that her convictions legally authorize her to be removed from the United States. Relying on our recent decision in Bado v. United States , 186 A.3d 1243 (D.C. 2018) (en banc), Ms. Miller argues among other things that she was denied her constitutional right to a jury trial. We agree, and we therefore vacate Ms. Miller's convictions and remand for further proceedings.

I.

The United States's evidence at trial was as follows. On the date of the offense, Ms. Miller lived at 3552 Warter Street NW with Teresa Smith and Ms. Smith's boyfriend, Marquis Childs. Ms. Smith heard an argument between Ms. Miller and Mr. Childs. Entering the kitchen where the argument was taking place, Ms. Smith asked what was going on. Ms. Miller began to curse at Ms. Smith and stated she was going to cut Ms. Smith's eye out. Ms. Miller then ran to her room and retrieved a large butcher knife with an approximately eight-inch blade and a black handle. Ms. Miller returned, waved the knife around, and said "I'll fuck you up," and "I'm going to get your ass, bitch." Ms. Smith was scared and upset.

Ms. Smith called the police. A Metropolitan Police Department (MPD) officer responded to the house and spoke with Ms. Miller. Ms. Miller told the officer that she and Ms. Smith had a verbal argument, but Ms. Miller denied wielding a knife. The officer performed a consensual search of Ms. Miller's room and found a knife with a black handle in plain view. Mr. Childs identified that knife as the knife Ms. Miller had wielded earlier. An MPD detective interviewed Ms. Smith. Ms. Smith told the detective that Ms. Miller had pulled a knife on her. Mr. Childs corroborated Ms. Smith's statement.

The defense evidence was as follows. Ms. Miller testified that on the day of the incident she was talking to Mr. Childs in the kitchen, that Mr. Childs threatened her, and that she was afraid of him. She did not bring out a knife during the argument or threaten anyone with a knife. She keeps cooking knives in her room because she does not want them to go missing and because of roaches and mice. John Osanyingbemi, another resident of 3552 Warter Street, also testified. He testified that he saw the argument in the kitchen and that no one was holding any weapons or objects. Mr. Osanyingbemi told Ms. Miller, Mr. Childs, and Ms. Smith to stop arguing, and the group dispersed.

II.

Ms. Miller contends that the evidence was insufficient to support her convictions. We disagree.

When assessing the sufficiency of the evidence, we "view the evidence in the light most favorable to the [verdict], giving full play to the right of the fact-finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Cherry v. District of Columbia , 164 A.3d 922, 929 (D.C. 2017) (internal quotation marks omitted). The evidence is sufficient if, "after viewing it in the light most favorable to the [verdict], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Smith v. United States , 55 A.3d 884, 887 (D.C. 2012) (internal quotation marks omitted).

Ms. Miller challenges the trial court's decision to credit the testimony of Ms. Smith and Mr. Childs over the testimony of the defense witnesses. Credibility, however, "is determined by the trier of fact, ... and this court must defer to its credibility findings if they are supported by the evidence." Bryant v. United States , 859 A.2d 1093, 1102 n.13 (D.C. 2004). We discern no basis to reject the credibility determinations of the factfinder on this record.

III.

Ms. Miller argues that attempted threats is not a legally cognizable offense. This court, however, has held otherwise. Jones v. United States , 124 A.3d 127, 129-31 (D.C. 2015) (reaffirming that "attempted threats is a valid offense in the District"). Although Ms. Miller contends that our prior decisions are wrong, it is "fundamental in our jurisprudence that no division of this court will overrule a prior decision of this court." Washington v. Guest Servs., Inc. , 718 A.2d 1071, 1075 (D.C. 1998) (internal quotation marks omitted).

IV.

Finally, Ms. Miller argues that she had a constitutional right to a jury trial, because she was tried for offenses that legally authorize her removal from the United States. Ms. Miller concedes that she did not request a jury trial and that her claim is therefore subject to review under the plain-error standard. "Under the test for plain error, an appellant must show (1) error, (2) that is plain, and (3) that affected [the appellant's] substantial rights." Fortune v. United States , 59 A.3d 949, 954 (D.C. 2013) (internal quotation marks omitted). "Even if all three of these conditions are met, this court will not reverse unless (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks omitted). Applying that standard, we vacate Ms. Miller's convictions.

A.

Ms. Miller's immigration status was not raised before the trial court, and the trial record does not shed light on that status. On appeal, both parties have proffered information concerning Ms. Miller's status. The United States has raised no objection to our consideration of undisputed information about Ms. Miller's status. For current purposes, it suffices to say that there is no dispute that (1) Ms. Miller was born in Nigeria; (2) Ms. Miller came to the United States in 1998; (3) Ms. Miller is not a United States citizen; (4) at the time of trial in this case, Ms. Miller had no established legal right to remain in the United States and no pending request seeking to establish such a right; (5) because Ms. Miller and Ms. Smith lived in the same home, the offenses of conviction are crimes of domestic violence that would provide a legal basis upon which Ms. Miller could be removed from the United States pursuant to 8 U.S.C. § 1227(a)(2)(E) (2017) ; and (6) although Ms. Miller at one point submitted an asylum request, she has since withdrawn that request in exchange for an agreement that the United States would not oppose a grant of withholding of removal. "Withholding of removal ... confers only the right not to be deported to a particular country—not a right to remain in this one." Abdulai v. Ashcroft , 239 F.3d 542, 545 (3d Cir. 2001).

B.

We turn first to whether the failure to provide Ms. Miller with a jury trial is obvious error. Although Bado had not been decided at the time of the trial in this case, we must take Bado into account in determining whether there is obvious error. See, e.g. , Haye v. United States , 67 A.3d 1025, 1030 (D.C. 2013) ("An error is plain if it is clear or obvious at the time of appeal."). We conclude that the failure to provide Ms. Miller with a jury trial is obvious error in light of Bado .

Bado is explicit as to the scope of its holding: "Our holding today is clear: the Sixth Amendment entitles a defendant to a jury trial if [the defendant] is charged with a deportable offense ...." 186 A.3d at 1260. The United States does not dispute that Ms. Miller was charged with deportable offenses. Our holding in Bado by its plain terms therefore entitles Ms. Miller to a jury trial. We are not persuaded by the United States's contrary arguments.

Although the trial record did not reveal that Ms. Miller is not a citizen, the United States has not relied on that circumstance to argue that the error in this case was not obvious for purposes of the plain-error standard. We therefore do not address that issue. The United States does argue, however, that Bado could reasonably be read more narrowly, to afford a jury trial right to a noncitizen charged with a deportable offense only if the noncitizen had a preexisting right to remain in the United States. We disagree.

First, Mr. Bado apparently did not have a preexisting right to remain in the United States at the time of his criminal trial. Bado , 186 A.3d at 1247. Rather, his petition for asylum was pending at the time of his criminal trial. Id. The United States's proposed reading of Bado thus is directly inconsistent with our holding that Mr. Bado had a constitutional right to jury trial.

Second, the United States's proposed reading of Bado appears to rest on the premise that a defendant has a constitutional right to a jury trial only if conviction would in a practical sense make the defendant's situation worse than it otherwise would be. Bado , however, repeatedly states that the relevant inquiry is whether the defendant "faces" or "is exposed" to the penalty at issue, or alternatively whether the penalty "could be" imposed, if the defendant is convicted. E.g. , 186 A.3d at 1246, 1249-50, 1252, 1253, 1256, 1257, 1261. Bado 's language reflects the well-settled principle that whether there is a Sixth Amendment right to a jury trial turns on the "maximum authorized penalty." Blanton v. City of N. Las Vegas , 489 U.S. 538, 541, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989) (emphasis added and internal quotation marks omitted). The focus is on the maximum authorized penalty because the existence of a Sixth Amendment right to a jury trial as to a charged offense turns on whether the offense is serious or petty, which in turn depends on whether the maximum penalty authorized for the...