October 20, 2005
SYLVIA SEPULVEDA-HAMBOR, APPELLANT,
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the District of Columbia. (T-3063-02). (Hon. John R. Hess, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 15, 2005
Before WASHINGTON, Chief Judge, and TERRY and KRAMER, Associate Judges.
In this case, the appellant, Sylvia Sepulveda-Hambor, asserts that the trial court abused its discretion in denying her motion to seal records pertaining to her arrest for failure to obey an order of a police officer.*fn1 The denial of the motion came following a non-jury trial where the appellant was acquitted of the failure to obey charge. The trial court judge that denied the appellant's motion to seal her arrest records was the same judge that had acquitted the appellant after hearing the evidence in the trial on the failure to obey charge. We hold that the trial court did not abuse its discretion in concluding that no hearing was necessary, or in denying the motion to seal.
The testimony at the trial provides the background for the issues raised. Officer Dunlop, who had arrested the appellant, was the sole witness for the government. He testified that the events at issue occurred around 8:00 a.m. during morning rush hour. On that day, he was part of a motorcade escorting Vice-President Cheney to work at the White House. There were three police officers at the front of the motorcade spaced about half a block apart. Officer Dunlop was the third. As the motorcade drove north up Fifteenth Street near Pennsylvania Avenue, he noticed the appellant's car in the fourth lane -- a left-turn-only lane -- facing the motorcade. Before he reached the appellant, he observed the first two officers motioning her to move to the curb as they passed her, and from their actions, could ascertain that they were shouting at her to do so. Officer Dunlop testified that he passed close by the appellant's car, and yelled for her to pull over. As he did so, he distinctly saw the appellant look at him and make an obscene gesture (colloquially known as "giving him the finger"). He continued up Fifteenth Street, and, observing her in his rearview mirror, noted that she never pulled to the curb. When the Vice-President had safely been delivered onto the White House grounds, Officer Dunlop turned back immediately to pursue the appellant, following her on Pennsylvania Avenue, and catching up with her as she was turning onto Seventh Street.
The appellant's testimony differed in material respects from Officer Dunlop's. She testified that having dropped her husband at the Treasury Department on Fifteenth Street, Northwest, she drove south, intending to turn left onto Pennsylvania Avenue and drive the nine or so blocks to her own place of employment at Sixth and D Streets, Northwest. As she headed south on Fifteenth Street approaching Pennsylvania Avenue, she heard sirens and noted that vehicles were moving "slowly" north toward her through light morning traffic. She testified that because of an eye problem that caused her to have spasms if she looked at blinking lights, she simply stopped her car in the third lane from the curb (which was a lane from which a car could either turn left or go straight) and averted her eyes from the blinking lights on the police cars. Out of her peripheral vision, she was startled to see two police officers gesturing to her to move to the right as they drove northward on her left. Still startled, she saw a third officer pass, then heard a pounding on the rear of her car. She did not have any kind of communication with the officers, nor did she make any obscene gesture.
After hearing the bang on her car, she recovered her composure and, realizing that traffic had pulled over to the right, she herself immediately pulled over to the far right curb as well. When the motorcade had gone by, she turned left on Pennsylvania Avenue, and drove to Seventh Street, where she again turned left. As she was turning, an officer whom she later identified as Officer Dunlop, pulled her over, accused her of making an obscene gesture at him and placed her under arrest. The appellant denied ever making such a gesture, and testified that although originally startled into inaction by the blinking lights and the sudden appearance of the three officers, she shortly thereafter drove to the curb. Certainly, she testified, it was never her intention to disobey the order of a police officer. In support of her case, the appellant called three character witnesses to confirm that she was a peaceable, law-abiding, truth-telling individual.
Both the appellant and Officer Dunlop agreed that after stopping her on Seventh Street, he placed the appellant under arrest, handcuffed her, arranged for her car to be parked at a safe location and had her transported to a police station. The officer charged the appellant with failing to obey an order of a police officer. They disagreed about whether or not she was offered citation release from the station.
In announcing his ruling at the conclusion of the trial, the trial judge found that there were "two conflicting versions of the facts here given by two individuals [who] on the face of which both appear to be truth-telling individuals." The trial judge pointed out that the officer had "no reason to come in to fabricate his story." With respect to the appellant, he noted that she "appears to be an individual who is a truth telling individual." Thus, he concluded, "it boils down to whether there might be some mistake on somebody's part." He was "concerned" by the officer's testimony that he saw her hold "up her middle finger when he told her to move to the right," and concluded that this "would clearly indicate that she knew she was supposed to [move to the right] and she was telling the officer in effect I know what you're telling me to do [and] I'm not going to do it." While the judge concluded that he was "totally satisfied" the officer was "not lying," he was willing to entertain the possibility that "some movement [the appellant] made in the car . . . caused him to believe that she was holding up this middle finger and telling him, in effect, that I'm not going to comply with your order." In the end, the judge called it "a close case," but concluded the testimony of the character witnesses caused him to have a reasonable doubt of her guilt.
Following her acquittal, the appellant filed a motion to seal her arrest record, with supporting affidavits which she referred to as "declarations." The trial judge denied the motion, ruling that this was an issue of credibility, and that he could not find by "clear and convincing evidence" that the appellant had not committed the offense of failing to obey the order of a police officer.
On appeal, the appellant argues that the trial court erred not only by declining to hold a hearing, but also by concluding that the additional factual materials that she submitted in connection with the motion did not entitle her to have her arrest record sealed. Having reviewed the testimony at trial and the submissions made by the appellant in connection with her motion to seal, we conclude that the trial court did not abuse its discretion in declining to hold a hearing, and that the decision of the trial judge was amply supported by the record.
With respect to the appellant's complaint that the trial court failed to hold a hearing on her motion to seal, the law is clear: "Where a trial court determines that a hearing would not result in evidence sufficient to meet the clear and convincing standard required for the sealing of arrest records, the court may in its discretion deny the request for a hearing." Dawkins v. United States, 535 A.2d 1383, 1386 (D.C. 1988); see also Burns v. United States, 880 A.2d 258, 263 (D.C. 2005) ("Whether to hold an evidentiary hearing is a decision committed to the discretion of the trial court, based on the quality and nature of the evidence presented."); White v. United States, 582 A.2d 1199, 1201 (D.C. 1990) ("The trial court enjoys broad discretion in deciding whether to hold a hearing on a motion to seal an arrest record."). "[T]he concept of "exercise of discretion' is a review-restraining one. The appellate court role in reviewing 'the exercise of discretion' is supervisory in nature and deferential in attitude.'" United States v. Hamid, 531 A.2d 628, 646 (D.C. 1987) (quoting Johnson v. United States, 398 A.2d 354, 362-63 (D.C. 1979)).
In his written order denying the motion to seal, the trial court explicitly stated not only that he had "a clear recollection of petitioner's trial," but also that the court could not "perceive anything that could be presented at such a hearing that is not already in the voluminous record." Thus, his decision that no hearing was necessary fell squarely within his discretion.
Whether or not a hearing is held in connection with a motion to seal, a trial court's determinations in connection with that motion "constitute findings of fact" and are reviewed for clear error. Burns, 880 A.2d 258, 260-261 (quoting District of Columbia v. Davis, 811 A.2d 800, 802 (D.C. 2002)). Thus, the next issue before us is whether the trial court's order denying the motion was "plainly wrong or without evidence to support it." Id. (citing and quoting D.C. Code § 17-305 (a) (2001)).
In considering that issue, we look first to the seminal case of District of Columbia v. Hudson, 404 A.2d 175, 177 (D.C. 1979) (en banc),*fn2 in which we addressed issues surrounding the maintenance of arrest records where, unlike the instant matter, the person arrested was not ultimately prosecuted. Hudson held that to obtain the sealing of an arrest record, the movant must show by clear and convincing evidence*fn3 that the crime for which he was arrested did not occur or that he did not commit it. 404 A.2d at 175, 179, 182. This holding has been applied in numerous subsequent cases involving motions to seal arrest records where the arrest was not ultimately prosecuted.*fn4
Although Hudson provides background and guidance for the present matter, it is actually Rezvan v. District of Columbia, 582 A.2d 937, 938 (D.C. 1990), which directly addresses the issue of how to determine whether an arrest record should be sealed after the charges have been tried and the accused has been acquitted. In Rezvan, as in this case, the appellant was acquitted following a trial. The appellant then moved to have his arrest record sealed, and his motion was denied by the trial court.
On appeal, this court held that to qualify for sealing after a matter has proceeded to trial, a "movant must meet an even higher standard than when prosecution terminates before trial." Id. at 938. Not only must the movant show by clear and convincing evidence that the arrest was based on mistaken identity or that no crime had in fact been committed, as set out in Hudson, but the movant must also "establish the existence of some other circumstance that would make it manifestly unjust to decline to seal the arrest record in question." Id. Examples given in Rezvan were "that the arrest was made without probable cause, that the arrest was otherwise in violation of constitutional rights, or that there was bad faith on the part of the prosecutor in continuing with the prosecution." Id.*fn5 Thus, the appellant had a heavier burden to meet below than if the prosecution had not gone forward.*fn6
The appellant asserts that her declarations, documents and factual analyses submitted in connection with her motion to seal met that test and established that Officer Dunlop's trial testimony was "incorrect, inherently improbable, inconsistent with other testimony or facts, and/or reflect conclusory opinions." In his written opinion denying the relief requested, the trial judge wrote that he had "gone over the record and [found] nothing therein which would cause him to find by clear and convincing evidence that she did not commit the offense."*fn7 We agree.
There was nothing new in those declarations with respect to the actual offense charged, but rather a re-hashing of the testimony previously heard by the trial court and a re-arguing of the inferences to be drawn from those facts. The bottom line remained that the testimony of the police officer and the appellant conflicted on the issue of whether or not she had made the obscene gesture to Officer Dunlop, indicating her unwillingness to obey his order to move over, and whether or not she had indeed ever pulled over to the right-hand lane. The trial judge was unable to resolve that conflict in the appellant's favor by clear and convincing evidence, a conclusion that was amply supported by the record.*fn8
We also concur with the trial court's judgment that the appellant failed to make the second showing required by Rezvan -- that there exists "some other circumstance that would make it manifestly unjust to decline to seal the arrest record in question, for example, that the arrest was made without probable cause, that the arrest was otherwise in violation of constitutional rights, or that there was bad faith on the part of the prosecutor in continuing with the prosecution." Rezvan, 582 A.2d at 938. The trial court's findings clearly establish probable cause, since at the very least the trial court made clear that the officer was acting in good faith and believed that his order to pull over was being thwarted. Nor is there any persuasive evidence that the prosecutor was pursuing this matter in bad faith, or that the appellant's constitutional rights were violated..
In this connection, the appellant has made much of the fact that Metropolitan Police Department Special Order 96-10 (July 10, 1996) provides that "[i]n most circumstances, officers shall not summarily arrest a person who has violated the 'Failure to Comply' provision." Rather, such arrests shall only occur "in a situation where the continued refusal creates a flagrant and immediate danger to the violator, other persons or the motoring public, or interferes with ongoing traffic enforcement activities of the police."*fn9 Id. Apart from the fact that the Special Order provides that an officer is specifically permitted to exercise "prudent judgment" [sic] in deciding whether or not to make an arrest for the offense of Failure to Obey, the longstanding interpretation of Police Orders in this jurisdiction is that they are "internal mandates" that "properly are to be enforced by the appropriate authorities within the [police] department, and not by appellate courts." March v. United States, 362 A.2d 691, 698 n.8 (D.C. 1976). Internal mandates are no more than that,*fn10 and cannot be equated with constitutional rights. Moreover, as the Supreme Court held in the case of Atwater v. City of Lago Vista, 532 U.S. 318 (2001):
If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.
Id. at 354.*fn11
Thus, the trial judge acted within the appropriate limits of his discretion in rejecting the appellant's arguments. Accordingly, the order of the trial judge denying the appellant's motion to seal (referred to as a motion for expungement) is