Smith v. United States
| Citation | 288 A.3d 766 |
| Decision Date | 02 February 2023 |
| Docket Number | s. 18-CO-289 & 20-CF-190 |
| Parties | Glenn Arthur SMITH, Jr., Appellant, v. UNITED STATES, Appellee. |
| Court | Court of Appeals of Columbia District |
Sean R. Day, for appellant.
Nicholas Coleman, Assistant United States Attorney, for appellee. Channing D. Phillips, Acting United States Attorney at the time the brief was filed, Elizabeth Trosman, Assistant United States Attorney at the time the brief was filed, John P. Mannarino, James Sweeney, Amy H. Zubrensky, and Elizabeth Gabriel, Assistant United States Attorneys, were on the brief for appellee.
Before Blackburne-Rigsby, Chief Judge, Alikhan, Associate Judge, and Fisher, Senior Judge.
Appellant Glenn Arthur Smith, Jr., was convicted of two counts of first-degree sexual abuse in violation of D.C. Code § 22-3002(a)(1), and the trial court thereafter denied his request for a new trial under Super. Ct. Crim. R. 33. Mr. Smith now appeals both his convictions and the trial court's denial of his Rule 33 motion. First, he argues that the trial court erred in rejecting his challenge, pursuant to Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to several of the government's peremptory strikes. Next, he contends that his trial attorneys were constitutionally ineffective in failing to prepare him to testify at trial and in declining to call the government's lead detective to the stand as part of the defense case. Finally, Mr. Smith asserts that, in deciding his Rule 33 motion, the trial court improperly considered a conversation between Mr. Smith and his trial counsel that had been captured by the court's audio recording system during post-conviction proceedings. We disagree on each count, and thus affirm Mr. Smith's convictions and the denial of his Rule 33 motion.
The underlying charges in this case arise from the following factual scenario, to which V.F., the victim of the alleged assault, testified at trial. In the early hours of June 13, 2010, V.F. left a party at the 4300 block of Garrison Street, NW, and walked toward Wisconsin Avenue to hail a taxi. Finding no available taxis, V.F. continued south on Wisconsin Avenue and, after walking for some time, turned into a wooded area behind a building to urinate. As V.F. stood up to leave the wooded area, a man grabbed her arm and put her in a chokehold. The man asked her how much money she had on her, and V.F. responded that she had only $15 and offered him her purse. He told her that "wasn't good enough" and that "he would just have to get something else from [her]," after which he pushed her down, pulled down her shorts and underwear, and forcibly penetrated her vagina several times. The man threatened that he would "put his cock in [V.F.’s] mouth and that if [she] bit him, he was going to kill [her]." After penetrating V.F. vaginally, the man told her that "it wasn't good enough" and forcibly penetrated her anally several times. When the assault ended, the man took V.F.’s underwear, wiped her genitals with it, and ran off.
V.F. ran back to Wisconsin Avenue and hailed a taxi to a gas station, where she called the police. V.F.’s 911 call from the gas station was admitted at trial, and Metropolitan Police Department Officer Shannon Williams testified that, when she arrived at the gas station, V.F. appeared "scared," "withdrawn," and "traumatized" and had dirt on her clothing, legs, and face. Detectives took V.F. to the hospital, where she underwent a sexual assault examination. The sexual assault nurse examiner testified at trial that, during the exam, she saw dirt and blood in V.F.’s perineal and anal areas and a tear in her anal wall. Mr. Smith's semen was found on DNA swabs from V.F.’s thighs, external genitalia, and perineal and anorectal areas.
Although Mr. Smith indicated at an initial inquiry pursuant to Boyd v. United States , 586 A.2d 670 (D.C. 1991), that he had decided not to testify in his own defense, he reversed course later in the day during a second Boyd inquiry. Mr. Smith took the stand and testified that, on the morning of June 13, 2010, he had seen V.F. on Wisconsin Avenue as he was driving home, and he had offered to wait with her for a taxi. He recounted that he and V.F. had started kissing and "caressing each other[’]s bodies," and then engaged in consensual sex, during which his penis "slipped out," and he "accidentally penetrated [V.F.] anally." As a result, V.F. "scream[ed]," got "very upset," and accused him of assault, after which they argued and Mr. Smith eventually walked away and drove home. On cross-examination, the government confronted Mr. Smith with his July 2011 videotaped statement to the police, in which he told the interviewing detective that, around the time of the offense, he had not engaged in any late-night encounters with women he had just met and strongly denied any such encounter on the night in question. When the detective informed Mr. Smith in the interview that his DNA had been matched to V.F.’s alleged assault, he said, "[t]hat means I had sex with a girl and gave her money."
In late 2012, the jury found Mr. Smith guilty of both counts of first-degree sexual abuse.1 Before sentencing, Mr. Smith filed several pro se motions for a new trial under Super. Ct. Crim. R. 33, alleging that his trial counsel had been constitutionally ineffective in failing to prepare him to testify at trial and in declining to call the government's lead detective to impeach V.F.’s trial testimony. The trial court appointed Mr. Smith new counsel and directed her to file a single, comprehensive motion for a new trial.
In 2014, while the motion for a new trial was pending, the trial court sentenced Mr. Smith to a 25-year term of incarceration and a 5-year term of supervised release on each count, to run concurrently, and ordered that he pay $200 to the Crime Victims Compensation Fund.
In 2018, after briefing and seven days of evidentiary hearings, the trial court denied Mr. Smith's request for a new trial. Mr. Smith timely appealed his convictions and the denial of Rule 33 relief.2
We begin with Mr. Smith's Batson challenge, recognizing that he would be entitled to reversal of his convictions "if the record indicate[d] that race was a consideration in the prosecution's decision to strike even one black juror." Harris v. United States , 260 A.3d 663, 669 (D.C. 2021) ; see Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2241, 204 L.Ed.2d 638 (2019) (). We conclude that the trial court did not clearly err in rejecting Mr. Smith's Batson challenge and thus decline to vacate Mr. Smith's convictions.
Mr. Smith's Batson challenge relates to the first day of jury selection.
After the court struck a series of jurors for cause, 37 prospective jurors remained, consisting of 31 white jurors, 4 Black jurors, one Hispanic juror, and one Asian juror. The government and the defense were each allotted ten peremptory strikes and one strike for selecting alternates. In total, defense counsel struck ten white jurors and passed on an eleventh strike. The prosecutor struck all six of the non-white jurors, including one Black juror who would have been an alternate. After the conclusion of peremptory strikes, defense counsel raised a Batson challenge, contending that the government had "eliminated every black person from the jury as well as Asian and Hispanic." Although Mr. Smith's initial Batson challenge included the Asian and Hispanic jurors, the trial court queried whether the defense's prima facie case required "group[ing] the one Hispanic and the one Asian American" with the four struck Black jurors "to come up with six" struck jurors. In response, defense counsel acceded that the Batson challenge would stand "with just the four individuals" and stated that "[t]he number is four because that ... was the number of ... black individuals in this jury pool."3
The government contested Mr. Smith's prima facie case of discrimination, but nevertheless provided race-neutral reasons for striking the four Black jurors: Jurors 238, 254, 683, and 721. As to Juror 238, the prosecutor explained that "he was a plumber's assistant," and it was "concerned about the level of scientific evidence in this case." The government had a "similar issue" with Juror 254's "profession," given that she was a "[c]ashier and breakfast attendant" and had only had "the cashier job ... for 90 days." The prosecutor "also thought her dress was very disrespectful to the Court." With respect to Juror 683, the government explained that the strike was based on a "concern[ ]" that the juror had, during voir dire, mistakenly answered "yes" when the trial court asked him whether he, his immediate family, or his close personal friends had ever worked in local, state, or federal law enforcement.4
Lastly, the government explained that it had struck Juror 721, the alternate, because "that brought into the number one position" a preferred alternate, "who had a friend in the Maryland prosecution's office, worked in energy security, [and] had a Brown University affiliation." Although it maintained that there was no "race-based issue" with respect to Juror 721, the prosecutor offered to withdraw the strike. The court accepted the withdrawal, and defense counsel stated that he had no objection.
Thereafter, the trial court set aside any concerns about Juror 721, explaining that "we're talking now [about] three people."5
Defense counsel disputed the government's explanation for striking Jurors 238 and 254, arguing that it boiled down to saying that "[Black individuals] were too unintelligent to serve on a jury," which was not "an effective reason to withstand that challenge." Counsel also returned to the prima facie case, asking the court to consider the "totality of the strikes" rather...
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