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Rivera v. United States

January 31, 2008

ISRAEL RIVERA, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (FEL-6420-04) (Hon. Thomas J. Motley, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued January 15, 2008

Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.

A jury convicted appellant, Israel Rivera, on the charge of assaulting, resisting or interfering with a police officer with a dangerous weapon (belt with buckle), in violation of D.C. Code § 22-405 (b) (2001). Subsequently, he filed a motion to vacate his sentence on the grounds of ineffective assistance of counsel. He claims that the trial court erred by (1) telling the jury "to be cautious" in handling the belt; (2) denying his motion for judgment of acquittal; and (3) failing to find ineffective assistance of counsel since his counsel did not (a) request a court certified interpreter to facilitate appellant's communication with his counsel, (b) prevent a defense witness from using the word "gang," and (3) call his brother as a witness on the issue of self-defense. Discerning neither error nor abuse of discretion, we affirm the judgment of the trial court.

FACTUAL SUMMARY

The government presented evidence at trial showing that Metropolitan Police Department ("MPD") Officers James Ellis*fn1 and Michael Lawrence were on duty in the 3700 block of Fourteenth Street, in the Northwest quadrant of the District of Columbia, around 3 a.m. on October 16, 2004, monitoring the closing of a night club. They were in an unmarked vehicle and wore civilian clothes, and had on raid jackets. Officer Ellis testified that his light blue raid jacket had the letters "MPD" in bright yellow on the back and the sleeves of the jacket, and a police badge on the front of the jacket. Officer Lawrence stated that his jacket had "POLICE in big letters on the back," an MPD "shoulder patch on the left shoulder," "POLICE sewn in on the breast on the right side," and an MPD badge. After being shown and identifying a government exhibit as the raid jacket he wore on October 16th, he described the back of the jacket as having "[g]old lettering, [and] the words Metropolitan Police, Washington, D.C.," with "the largest word on the back" being "Police." There was an "MPD shoulder patch" on the left arm of the jacket; in gold lettering on the front right of the jacket appeared the words "Four D Police"; and on the left front of the jacket there was a gold "Metropolitan Police Department badge."

Officer Ellis recalled that while he and Officer Lawrence were sitting in their vehicle, two other officers, Travis Barton and Keith Batton, pulled up in a car, informed Officers Ellis and Lawrence about a fight a block away, and asked for backup. Officer Lawrence remembered that he had spoken with Officer Barton on his "Nextel" about the fight, and that when he and his partner passed by, Officers Ellis and Lawrence followed the other two officers to Fourteenth and Perry Place. Upon their arrival, Officer Ellis "observed one Hispanic male chasing another Hispanic male in the street . . ."; and Officer Lawrence "saw three [persons] [] getting ready to fight . . . , chasing each other around." Officers Lawrence and Barton each stopped one male. Officer Batton replaced Officer Barton in holding one of the suspects, while Officer Lawrence continued to subdue the other individual. As Officer Lawrence "was taking [one of the men] to the ground, [he] felt a pain . . . in his right upper arm." He looked around and saw "a black belt with a silver buckle laying on the ground."

At one point, Officer Ellis "turn[ed] around and observe[d] Officer Lawrence getting hit, struck by a belt" while he was securing one suspect on the ground, "with his back toward the defendant." Officer Barton also witnessed Mr. Rivera swinging the belt and striking Officer Lawrence. And, Officer Batton "looked over" and saw Mr. Rivera hitting Officer Lawrence with the belt. Officer Ellis said that Mr. Rivera was "striking Officer Lawrence with the buckle end of the belt," forcefully. Officer Ellis pulled Mr. Rivera off of Officer Lawrence and restrained him, with the help of Officer Barton. Eventually, when Officer Lawrence took off his raid jacket and the sweatshirt that he was wearing under it, Officer Ellis saw "a large welt on his arm in the shape of a belt buckle. Officer Ellis identified two government exhibits as photographs of Officer Lawrence's arm which depicted the "bruising to his arm that occurred during the incident," and also identified another government exhibit as the belt Mr. Rivera used in assaulting Officer Lawrence. Officer Lawrence testified that he "sustained a bruise on [his] upper arm," and he identified a government exhibit of his arm reflecting "a red bruise in the shape of a belt buckle on [his] upper right arm." Officer Batton, who placed the belt in an evidence bag, described it as having a "silver metal buckle" which was "about a little over two inches" in length.

ANALYSIS

The Trial Judge's Comment to the Jury Concerning the Belt

Mr. Rivera complains that the trial court "over the objection of the defense counsel and the prosecutor, . . . instructed the jury that 'If you use the belt, be cautious.'" He argues that the "[t]rial judge implicitly instructed [] the jury that [the] belt was inherently a dangerous weapon,"a "fact [] to be decided by the jury." The government contends that the trial court did not abuse its discretion, and that "[t]he court's remark that the jury should 'use caution' if it decided to use the belt was reasonable under the circumstances, and did not prevent the jury from deciding whether the belt had been used as a dangerous weapon in the particular circumstances of this case."

The record shows that the trial court gave its final instructions to the jury on Thursday, February 24, 2005. On Monday, February 28, 2005, the trial judge informed government and defense counsel that "since both of you have been going around the courtroom very quickly almost approaching the jury to re-enact the scene," he had to "tell them the cautionary use of the belt in the jury deliberation room." He explained that if he did not "say something and if there is a re-enactment in the jury room and if something happens, then [he would] wish that [he] had said something." He added, "a person could be hurt by the belt." Defense counsel asked the judge not to say anything because "stating that they could hurt someone or that they could hurt someone with it, that is encroaching on their duty to find the facts." Defense counsel requested that if the court told the jurors "to be cautious," that it refrain from saying "that someone will be hurt." Government counsel also voiced objection to the trial court's plan to tell the jury to be cautious in using the belt.

After the bench conference, the trial court discussed certain "administrative things" with the jurors. With reference to items ...


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