Smith v. United States, 092117 DCCA, 15-CF-1082

Docket Nº:15-CF-1082
Party Name:Damian Smith, Appellant, v. United States, Appellee.
Attorney:William C. Claiborne, III was on the brief for appellant. Charming D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Andrew Floyd, and Janani J. Iyengar, Assistant United States Attorneys were on the brief for appellee.
Judge Panel:Before Easterly, Associate Judge, and Washington, and Ferren, Senior Judges. Ferren, Senior Judge, concurring.
Case Date:September 21, 2017
Court:Court of Appeals of Columbia District

Damian Smith, Appellant,


United States, Appellee.

No. 15-CF-1082

Court of Appeals of Columbia District

September 21, 2017

Submitted December 20, 2016

Appeal from the Superior Court of the District of Columbia (CF2-14109-13) Hon. Neal E. Kravitz, Trial Judge

William C. Claiborne, III was on the brief for appellant.

Charming D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Andrew Floyd, and Janani J. Iyengar, Assistant United States Attorneys were on the brief for appellee.

Before Easterly, Associate Judge, and Washington, [*] and Ferren, Senior Judges.



Appellant, Damian Smith, was convicted of possession with intent to distribute a schedule I controlled substance, [1] "3-4 methylenedioxypyrovalerone" (MDPV), commonly known as "Bath Salts." He appeals his conviction, arguing for reversal on two grounds: (1) the government failed to preserve physical evidence material to the defense and discoverable pursuant to Super Ct. Crim. R. 16 (a)(1)(C); and (2) there was insufficient evidence to justify Smith's intention to distribute the MDPV found in his possession. We affirm.

I. Facts and Proceedings

On July 20, 2015, a jury found Smith guilty of Possession with Intent to Distribute (PWID) based on his possession of MDPV. According to the government's evidence at trial, he had been arrested on August 9, 2013, after his girlfriend, Iesha Miller, called the police from her apartment. When Officer Armand Artinian responded to the call, he saw Smith on the couch without pants, dressed in his boxer briefs. Before taking Smith into custody, Officer Artinian asked him if he had pants he could wear. According to Artinian, Smith replied that he had clothing in Miller's car, but Miller interjected that Smith had "some clothing in the bedroom." Officer Artinian retrieved a pair of shorts from a bed in the bedroom, and Miller confirmed that these were the clothing she had in mind.

The officer then "walked over to Mr. Smith [with the shorts] and said, 'Here. Put these on.'" Smith declined to do so (in Artinian's words) because "they were not his" - they had "a hole in the crotch or a tear in the crotch."2 The officer then searched the shorts, found and removed "a bag full of white pills, " handed the shorts to Smith, and directed him to put them on. Smith did so and was photographed wearing the shorts. This photograph was admitted in evidence at trial over defense objection.

Smith was wearing the shorts when he was transported to the D.C. jail, and although the corrections officials took the shorts in exchange for jail garb, they were not formally seized as evidence by the government. Smith was detained in the jail for six months for violation of the terms of release on an unrelated domestic violence charge and for sundry parole violations. He never retrieved the shorts, [3]which apparently were destroyed.4

In addition to denying Smith's motion to suppress the pills seized from the shorts, the trial court declined Smith's Rule 16 request to suppress the photo showing Smith wearing them.5 The government conceded, and the court agreed, that the government had violated its Rule 16 obligation by failing to preserve the shorts. Contrary to Smith's assertion, however, the court did not perceive a "deliberate" or "intentional" destruction or loss of the shorts; it found the government culpable only of "negligence" and accordingly fashioned three Rule 16 sanctions. The prosecution was precluded from (1) arguing that the shorts fit Smith; (2) eliciting opinion testimony from the police about whether the shorts fit; and (3) objecting (as hearsay) to admission of Smith's prior out-of-court statement that the shorts were not his.

II. Rule 16 Issue

A. Standard of Review

On appeal, Smith argues that the sanctions imposed against the government for failing to preserve the shorts were inadequate. Contrary to the trial court's finding, he maintains that the government had "deliberately destroyed the shorts after extracting from them all of the evidentiary value." As a consequence, he says, the "staged" photograph depicting his wearing the shorts at the scene of arrest (in an effort to show that they "fit") should have been withheld from the jury as an essential Rule 16 sanction.

In challenging the trial court's refusal "to suppress the photograph, " Smith stresses that the court, as a matter of law, misapplied the factors required for determining appropriate Rule 16 sanctions. We review ultimately for abuse of trial court discretion, 6 an analysis that - if we find legal error along the way - extends to determining, as a separate matter, whether the error was of a "magnitude to require reversal, "7 or, instead, was "harmless" under Kotteakos v. United States.[8]Initially, therefore, we review de novo whether the court considered the proper factors in assessing whether and how to sanction the government for its Rule 16 violation.9

B. Law Governing Evaluation of Trial Court Sanctions under Rule 16

Recently, in Koonce v. District of Columbia, [10] this court reconfirmed the following three criteria for evaluating trial court sanction decisions under Rule 16. We must weigh "(1) the degree of [government] negligence or bad faith involved; (2) the importance of the evidence lost; and (3) the evidence of guilt adduced at trial[, ] in order to come to a determination that will serve the ends of justice."11This court has commonly applied these criteria verbatim to sanctions analysis in Rule 16 cases.12

1. "The Degree of Negligence or Bad Faith Involved" (culpability for the loss)

We look, first, at culpability for the loss. For context we begin with the obvious: unless the government could prove that the shorts in which the drugs were found belonged to Smith, there could be no conviction. Thus, absent the shorts, the photo of Smith wearing them was essential to the government's case, and Smith's defense substantially turned on rebutting the government's prima facie showing, through the photo, that they fit him. As explained below, the trial court committed two errors. First, the government's fault was greater than the trial court found. Second, and contrary to another trial court finding, responsibility for loss of the shorts was not properly allocated, even in part, to appellant Smith.

a. The Government's Negligence

As we have noted, at trial the court rejected Smith's allegation that the government had deliberately destroyed the shorts. Rather, the court attributed that loss to "ordinary negligence on the part of the government"; there was no "bad faith or any intention to hide material evidence" - no record basis "to believe that the government thought the shorts were somehow exculpatory or otherwise beneficial to the defense and sought to hide them from the defendant."13 The court elaborated: My sense of what happened is that Officer Artinian just did not understand the pertinence of the shorts .... It's somewhat surprising to me. He's been an officer for several years. But I guess he's not a - he's not a narcotics investigator. And I guess he was just thinking of this, as government counsel has said, really as a domestic violence investigation and didn't realize that these other issues were - were of importance. That said, I think he should have realized it. And that's why I think there's some negligence here.14

In finding "ordinary" or "some" negligence, the trial court limited the government's neglect to the actions of Officer Artinian, based on the officer's own apparent impression or assumption that the shorts were not exculpatory. As far as we can tell, moreover, the court appeared to understand the officer's neglect as an exercise of poor judgment, not as a violation of an MPD general order specifying that police "officers must preserve all potentially discoverable material" that "comes into the[ir] possession."[15] The government, however, has a Rule 16 obligation that transcends the judgment of an "individual officer."16 "We have repeatedly recognized that the government has a general duty to preserve discoverable evidence under Superior Court Criminal Rule 16 (a)(1)(C) and long-established case law."17

Earlier, at the pretrial hearing on sundry motions to suppress, the trial court appeared to recognize that Officer Artinian was not alone at fault. After citing the government's Gerstein proffer, 18 which referenced the drugs found in a "pair of men's shorts, " the court remarked that the "U.S. Attorney's Office would have understood the evidentiary significance of those shorts" and "probably should have gotten a search warrant" to seize them. But the court apparently did not factor the prosecutor's inaction into...

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