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Ferrell v. United States

March 18, 2010

DERRICK MARCUS FERRELL, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (CF2-13738-06) (Hon. Jeanette Jackson Clark, Trial Judge).

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

Submitted May 28, 2009

Before THOMPSON, Associate Judge, TERRY and SCHWELB, Senior Judges.

After a bench trial, the Superior Court found appellant Derrick Ferrell guilty of simple assault (see D.C. Code § 22-404 (a) (2001)). Ferrell appealed on the ground that the evidence was insufficient to support his conviction. We think the evidence was sufficient, though not overwhelming (or even strong), but we need not discuss that issue. As we explain below, but for the trial court's failure to correct the prosecutor's misapprehension that the government required leave of court to dismiss the case-as the prosecutor told the court he wanted to do before the court declared a recess in the trial-the case would have been dismissed. We conclude that this omission by the court was plain error; that this plain error-coming as it did on the heel of comments that the trial judge erroneously interjected, expressing her disagreement with the prosecutor's assessment of the evidence-affected appellant's substantial rights; and that together the errors seriously undermined the integrity of the proceedings. We therefore reverse appellant's conviction.

I.

Although we do not address the sufficiency of the evidence, we must describe the trial in some detail as background for our analysis. The assault charge arose out of an incident that occurred on July 7, 2006, at the Washington Hospital Center. Special Police Officer Seth Massie testified that he witnessed an altercation between appellant and appellant's sister in the intake area of the hospital's emergency room. After the sister's conduct became "boisterous," other officers whom Officer Massie had summoned to the scene struggled to handcuff her. Appellant, attempting to intervene to prevent his sister's arrest, shoved two of the officers, including Officer Donald Owens. Thereafter, officers tried to handcuff appellant, and a struggle ensued. Appellant continued struggling after Officer Owens, Officer Massie and two other officers "got [appellant] on the ground." Officer Massie testified that he was standing over appellant, who was face-down on the ground, after police had succeeded in getting one handcuff on him. As police continued to try to handcuff appellant, appellant's leg and foot "lunged up" and his foot "hit [Officer Massie] in the groin." Officer Massie explained that appellant "bent his knee up" and "that's how his foot came up." The officer testified that appellant's "kick" was hard enough for him "to feel some pain."

At the conclusion of Officer Massie's testimony, the prosecutor moved to amend the information-which named Officer Massie as the assault victim-to name Officer Owens instead as the victim. The prosecutor explained that when he spoke with Officer Massie prior to trial, the officer told him that appellant had "kicked" him, and that not until the course of the officer's testimony did the Government "come to the belief that that kick [to Officer Massie] does not meet the elements of simple assault." The court denied the motion to amend the information, citing prejudice to the defense and finding that the government had not demonstrated good cause for the proposed amendment.

The following exchange ensued:

Prosecutor: At this time, the Government will dismiss the case.

Court: Okay.

Defense Counsel: Thank you, Your Honor. May we be -- may Mr. Ferrell be excused?

Court: No. I just said that the -- his request to amend was denied.

Defense Counsel: Oh, I thought you said you ...


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