Smith v. United States

• Decision Date: 08 March 2018
• Docket Number: No. 15–CF–677,15–CF–677
• Citation: 180 A.3d 45
• Parties: Shawn SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

180 A.3d 45

Shawn SMITH, Appellant,

v.UNITED STATES, Appellee.

No. 15–CF–677

District of Columbia Court of Appeals.

Argued January 24, 2017

Decided March 8, 2018

William Collins, Public Defender Service, with whom Samia Fam, Jonathan Anderson, and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Peter S. Smith, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the briefs were filed, and Elizabeth Trosman and Laura Crane, Assistant United States Attorneys, were on the brief, for appellee.

Before Thompson and McLeese, Associate Judges, and Ferren,^* Senior Judge.

Opinion concurring in the judgment by Associate Judge Thompson, at page 67–68.

Dissenting opinion by Associate Judge McLeese, at page 69.

Ferren, Senior Judge:

Appellant, Shawn Smith, was convicted of carrying a pistol outside of his home or place of business,¹ unlawful possession of a firearm by a former felon,² possession of an unregistered firearm,³ and possession of a large capacity ammunition feeding device.⁴ He appeals his convictions, arguing for reversal on several grounds:

(1) The trial court violated his Sixth Amendment right to cross-examine the arresting police officer on a theory of "corruption bias."

(2) The trial court erred by precluding impeachment of the officer after he "falsely and repeatedly" testified that he had been "attacked and acted in self-defense" when striking a crime scene observer.

(3) The government's delayed and incomplete mid-trial disclosure of the officer's pending excessive force investigation in another case violated appellant's due process rights under Brady v. Maryland ,⁵ warranting reversal.

For the reasons that follow, we affirm.

I. Facts and Proceedings

A. Events at Issue

According to the government's evidence, at approximately 1:00 a.m. on May 11, 2014, officers of the Seventh District Metropolitan Police Department ("MPD") observed a dozen or so individuals walking along 13th Street, S.E. toward Alabama Avenue. As Officers Damien Williams and Terry Couch left their vehicle "to see what was going on," a man later identified as appellant Smith turned and began to run down the street into an alley near Savannah Street, S.E. The officers ran after Smith, who was holding his waistband while running. As Smith passed a wooden fence enclosing a yard near the alley, he pulled what "clearly" appeared to be a black semiautomatic handgun from his waistband and tossed it over the wooden fence into the yard. At the time Smith discarded the handgun, Officer Couch was approximately five to six feet behind him, followed closely by Officer Williams. Both officers described the area as "dimly lit" with streetlights.

As Officer Couch continued to pursue Smith, Officer Williams stopped to search for the discarded handgun. Upon entering the yard, Williams located a handgun lying in the grass approximately six feet from the fence. He observed a small indentation in the ground where the handgun appeared to have landed, as well as dirt on the handgun's barrel. The handgun was also dry compared to the surrounding area, which was wet from recent rain.

Rather than contact crime-scene personnel to process the area, Officer Williams photographed the handgun using his cellular phone. He then put on gloves to recover it, placed it in an evidence bag, and transported it to the police station. The parties stipulated that no fingerprints were discovered on the handgun and that DNA testing was inconclusive.

While Officer Williams was recovering the handgun, Officer Couch continued to pursue Smith on foot and caught up to him about a block from where the handgun was discovered. Officer Couch explained that as they crossed over 13th Street, S.E. in a sprint, Smith "tripped, fell, [or] stopped," causing them both to fall. The officer then handcuffed Smith and transported him to the hospital. Eventually, Smith was charged.

B. The Trial

Before swearing in the jury on December 17, 2014, the trial judge asked the parties whether there were any preliminary matters that warranted the court's attention. Both responded that there were none, whereupon each made opening statements to the jury. The government then requested a bench conference. At the bench, the government disclosed that its key witness, Officer Williams, was under investigation by the United States Attorney's Office for using "excessive force" against a bystander, Antwann Barkley, in an unrelated incident ("Barkley incident") that took place on December 1, 2014, almost seven months after the incident at issue here. The judge ordered the government to present its second witness (Officer Couch) first and held over discussion of the issues derived from the government's delayed disclosure until after Couch had testified. During a break in testimony, the prosecutor indicated that she had learned of the pending investigation a day or two earlier; that there was "no report" because the investigation was still "open"; and that there were "no documents" related to the investigation.

After a second break in Couch's testimony, however, the prosecutor discovered a preliminary Internal Affairs Division ("IAD") report about the pending investigation, which she produced. It was dated eight days earlier, December 9, 2014, based on a referral to the U.S. Attorney's office on the day it happened, December 1. This "preliminary" document (hereafter the "IAD report") summarized the Barkley incident, as follows: On December 1, 2014, Officer Williams responded to a radio run for a homicide in the 2400 block of Elvans Road, S.E. While responding, Officer Williams and another officer saw a Chevrolet Impala collide with a lamp post near the scene of the homicide. After Williams and a colleague removed the occupants from the Impala, the officers began to secure the perimeter with crime scene tape. While doing so, the officers asked a group of bystanders, including Barkley, to leave the area. The group responded by shouting obscenities at the officers and advising the officers that they had their hands up "like Michael Brown."⁶ Eventually the bystanders, except for Barkley, moved away from the scene.

Officer Williams continued to order Barkley to move back, but Barkley instead placed his cell phone in Officer Williams's face. In the words of the report, "Officer Williams then tried to physically push Mr. Barkley back." Barkley responded, the report continued, "by jumping back and trying to strike Officer Williams with his fist."

But Officer Williams "delivered a single, straight strike to Mr. Barkley's face, causing him to fall over backwards and strike his head on the ground." Barkley was then transported to the hospital, discharged with a broken jaw

, and charged with two counts of assault on a police officer (one for assaulting Officer Williams, the other for assaulting another officer at the scene, Michael Johnson). Officer Williams's excessive force case was then transferred to the United States Attorney's Office.

Attached to the IAD report were statements from three police officers, a civilian witness, and Barkley. These statements, in a few respects, were inconsistent with each other and with the IAD report itself concerning who had initiated physical contact, Barkley or Williams, and, in particular, whether Barkley had made threatening gestures to Officer Williams before the officer's "straight strike."

Based on the IAD report, defense counsel moved for "a dismissal—a mistrial. ... [T]his is Brady. "⁷ Counsel stressed that, had he received timely disclosure of the IAD information, his investigation of the case and, perforce, his cross-examination of Officer Couch "would have been different." The trial court agreed that the government had withheld evidence favorable to the defense and that its disclosure had been untimely under Brady . The court, however, rejected dismissal or a mistrial because the defense had received the IAD report, and any prejudice from the delayed disclosure would be "mitigated by the fact that [Officer Williams] ... hasn't testified, can be crossed, and the defense can make use of this [delayed disclosure] during the course of the trial." Therefore, concluded the court, the "failure to disclose" would not be "outcome determinative here" (the result required for a Brady violation).⁸

The next day, after the court denied a motion the government had filed for reconsideration of its Brady ruling, defense co-counsel informed the court that overnight the defense had learned from Barkley's attorney about a "cell phone video of the event." The defense also had become aware that the Gerstein⁹ affidavit that Officer Williams had filed to support Barkley's arrest was "not completely consistent with the IAD report." In particular, counsel proffered that Barkley's attorney had told him, contrary to the officer's affidavit, that Barkley "was not in a fighting position" toward Williams. And, added counsel, there was an issue "about whether or not [Williams] lied in the Gerstein application" and about whether other officers "colluded in the lies."

The trial court again denied counsel's request for Brady sanctions, ruling that it would not dismiss, grant a mistrial, or even "continue the case." The court limited cross-examination to (1) the fact that Officer Williams had an investigation "pending against him," including the "underlying facts and circumstances"; (2) the "nature of the allegation"; and (3) any potential consequences of the investigation. Later, however, having announced that defense counsel could cross-examine about the "underlying facts and circumstances" of the Barkley incident, the court narrowed that permission by precluding cross-examination about the "underlying details" of that incident—the ruling that presents the central issue in this appeal.

The jury found Smith guilty of all four charges, and the court sentenced him to twenty-four months of incarceration. He subsequently filed a motion for a new trial pursuant to Super. Ct. ...