Appeal from the Superior Court of the District of Columbia (CMD-19418-10) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
The opinion of the court was delivered by: Easterly, Associate Judge:
Before THOMPSON and EASTERLY, Associate Judges, and FERREN, Senior Judge. Opinion for the court by Associate Judge EASTERLY.
Dissenting opinion by Associate Judge THOMPSON at p. 24.
Mr. Simms appeals from his conviction for assault on a police officer ("APO") on the ground of prosecutorial vindictiveness. Specifically, Mr. Simms contends that the government, having announced that it was ready to try its case against him, vindictively added an APO charge to a pre-existing charge of possession of marijuana after Mr. Simms exercised his right to compulsory process and asked the trial court to enforce a subpoena, thereby prompting the trial court to continue the case. Mr. Simms argues that, under the circumstances, he should have received the benefit of a rebuttable presumption of vindictiveness, which would have shifted the burden to the government to explain its decision to add the APO charge. We agree.
We recognize that the Supreme Court and this court have made clear that a defendant cannot make out a claim of prosecutorial vindictiveness merely upon a showing that the prosecution filed additional charges after the defendant exercised, pretrial, a constitutionally or statutorily protected right. We acknowledge that pretrial litigation is by its very nature fluid, that jockeying for advantage is the norm in our adversarial system,*fn1 and that the government may reasonably reassess its case in the lead-up to trial. But the government's announcement that it was ready to try Mr. Simms's case on the scheduled trial date puts this case outside the typical pretrial paradigm. By announcing that it was ready to go to trial, the government communicated that this fluid pretrial period was over. This was an announcement on which Mr. Simms had a right to rely. Based on this announcement and the other accumulation of circumstances detailed below, we conclude Mr. Simms was entitled to a rebuttable presumption of vindictiveness when the government subsequently decided to charge Mr. Simms with APO. Accordingly, we remand to the trial court to give the government an opportunity to provide a benign explanation for its actions or, failing that, to vacate the APO conviction and dismiss this charge.
I.Facts and Procedural History
In the early morning hours of October 15, 2010, appellant, David Simms, was arrested for possession of marijuana and failure to obey a lawful order. Later that same day, Officer Pezzat signed an affidavit detailing the event. In her affidavit, Officer Pezzat stated that she and her partner, Officer Selby, approached Mr. Simms on the 1100 block of Vermont Ave., N.W., after observing him toss what she perceived to be three small bags of marijuana into a nearby tree box. According to Officer Pezzat, Mr. Simms ignored the officers' orders to stop, and instead continued walking into the unit block of Thomas Circle, N.W. Officer Pezzat repeated the order to stop, and Mr. Simms "again refused and then picked up his speed as if to run." Both officers "gave chase," and Officer Pezzat was "able to grab the back of [Mr. Simms's] t-shirt and coat as he tried to flee, struggle . . . and resist."
On the afternoon of October 15, 2010, Mr. Simms was arraigned and charged with unlawful possession of a controlled substance (marijuana), D.C. Code § 48-904.1(d) (2001). The Office of the Attorney General ("OAG") declined to file charges for failure to obey a lawful order. At an initial status hearing on November 10, 2010, Mr. Simms elected to go to trial, and the court scheduled a bench trial for January 31, 2011.
On January 31, 2011, the scheduled trial date, the trial court called the case, and asked, "is the government ready?" The government responded unequivocally, "the government is ready, your honor."*fn2 The defense, however, informed the court that it was not ready to begin trial because the government had not yet provided it with a copy of the DEA-7 reflecting the results of the drug testing. The court passed the case. After recalling the case, the court noted, "the government did announce ready, and counsel had not received the DEA-7 which has been provided now, is the defense now ready to proceed to trial?" Again the defense said it was not ready, because the Department of Homeland Security ("DHS") had not responded to a subpoena duces tecum for security video footage of Vermont Avenue, N.W., the street upon which the DHS is located, for the time of the alleged encounter between Mr. Simms and the police; the defense asked the court to enforce the subpoena.*fn3 The court passed the case again to see if the matter could be quickly resolved. When the court recalled the case again and determined that it could not be, the court informed the government that it would not hold a trial that day.
The court then granted a continuance in order to give the government an opportunity to contact the DHS and scheduled a status hearing for February 10, 2011.
On February 4, 2011, four days after the initial trial date, the government informed the defense counsel that the surveillance camera tape had been erased. That same day, the government amended the information to include the additional charge of assaulting a police officer ("APO") in violation of D.C. Code § 22--405(a) (2001).
On February 28, 2011, Mr. Simms filed a motion to dismiss the information for vindictive prosecution. In his motion, Mr. Simms noted that the government had announced that it was ready to try his case on January 31, 2011, before it amended the information to add the APO charge. On April 7, 2001, without holding a hearing or directing a response from the government, the trial judge denied Mr. Simms's motion. The court ruled that, "the addition of a single charge before trial d[id] not give rise to a realistic likelihood of prosecutorial vindictiveness in this case," and stated that no other facts led it to believe that the government "vindictively amended the charges against the defendant as retaliation for either defendant's exercise of compulsory process or his request for a new trial date."
On April 12, 2011, following a bench trial,*fn4 the trial court granted Mr. Simms's motion for judgment of acquittal on the unlawful possession charge. The court then considered evidence on the remaining charge and found Mr. Simms guilty of APO "on a resisting or impeding theory."
The only issue raised by Mr. Simms on appeal is whether the trial court erred in denying his motion to dismiss for vindictive prosecution without acknowledging that the circumstances gave rise to a presumption of vindictiveness that required a response from the government. But before we begin our analysis of this issue, we must address an unresolved question in this jurisdiction: what standard of review to apply.
Both parties agree that whether circumstances give rise to a realistic likelihood of prosecutorial vindictiveness, and thus trigger a rebuttable presumption, is a mixed question of law and fact, but they disagree as to the appropriate standard of review. Mr. Simms argues that our review is de novo because whether a presumption of prosecutorial vindictiveness is warranted is predominantly a question of law. The government urges us to follow the lead of the United States Court of Appeals for the District of Columbia Circuit and to review both the factual and legal findings regarding vindictiveness for clear error. See United States v. Meyer, 810 F.2d 1242, 1244, reh'g en banc granted, opinion vacated 816 F.2d 695, and opinion reinstated on reconsideration sub nom. Bartlett ex rel. Neuman v. Bowen, 824 F.2d 1240 (D.C. Cir. 1987).
In Davis v. United States, 564 A.2d 31 (D.C. 1989) (en banc), we described the different ways courts had historically reviewed mixed questions, observing that they had been either "assigned, sometimes clumsily, either to the ‗clearly erroneous' or to the ‗de novo' category"; or the mixed question is "unmixed" so that the factual issue is reviewed under the clearly erroneous standard and the legal issue under the de novo standard. Id. at 36 (quoting United States v. Felder, 548 A.2d 57, 61 (D.C. 1988)). We endorsed the "unmixing" approach, thereby "avail[ing] ourselves of the unique operational advantage of the trial judge in making a determination requiring intimate acquaintance with the facts of the particular case as they evolved at trial," but also "maintaining our own role as primary expositor of the law by applying a sufficiently penetrating measure of review to a trial court decision that, in effect, construes a legal right by denying its remedy." Id. at 34.
Since Davis, this court has established a practice of "unmixing" mixed
questions, and we have consistently applied a dual standard of review
when reviewing trial court
rulings in criminal cases on issues other than the defendant's
guilt.*fn5 Thus, for example, when we review motions
to suppress suggestive identifications,*fn6 motions to
suppress on Fourth Amendment grounds,*fn7 motions to
suppress statements on Miranda*fn8 or involuntariness
grounds,*fn9 conflict of interest claims,*fn10
Batson claims,*fn11 or ineffective assistance
of counsel claims,*fn12 we defer to the trial court's
findings of fact and review its conclusions of law de novo.
We see no reason to depart from this established practice when reviewing claims of prosecutorial vindictiveness. In this context as in others, the trial court is in the best position to resolve any factual disputes. But this court is best situated to determine whether a presumption of vindictiveness is warranted "through reasoning, comparison with like cases, and review of a trial court record." Davis,564 A.2d at 36. And this court is in the best position to determine ultimately whether the due process goals for the doctrine of vindictive prosecution, discussed below, are being fulfilled.
The D.C. Circuit's decision in Meyer does not sway our analysis. Meyer is not binding on this court. See M.A.P. v. Ryan, 285 A.2d 310, 313 (D.C. 1971). The clear error standard of review for vindictiveness claims adopted in that case is out of step not only with our case law, but also with case law from other federal circuits. Indeed, the majority of federal circuits that have addressed the standard of review for claims of prosecutorial vindictiveness review the district court's factual findings for clear error and its legal rulings de novo. See, e.g., United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999); United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989); United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996); United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir. 1996); United States v. Sarracino, 340 F.3d 1148, 1177 (10th Cir. 2003).*fn13
Although we conclude that the appropriate standard of review is "mixed," there are no factual disputes in this case to review for clear error. Thuswe are left to review de novo the trial court's legal ruling that, under the circumstances, Mr. Simms was not entitled to a pretrial presumption of vindictiveness. See Littlejohn v. United States, 705 A.2d 1077, 1082 (D.C. 1997) (while the nature of the trial court's ruling was typically a mixed question of law and fact that should be "unmixed," because the facts were largely undisputed, the question before the court was predominantly a legal one appropriate for de novo review).
A.Establishing Vindictiveness ...