Appeals from the Superior Court for the District of Columbia (CMD-17542-10 & 18419-10) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge:
(Submitted November 27, 2012
Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and KING, Senior Judge.
Haye*fn1 was convicted of unlawful entry*fn2
and criminal contempt*fn3 when he entered
2301 11th Street, part of a public housing complex known as Garfield
Terrace in Northwest Washington, D.C., in violation of a barring
notice ordering him not to enter Garfield Terrace and a court order
directing him to stay away from 2301 11th Street. On appeal, he
challenges his convictions, arguing that: (1) unlawful entry and
criminal contempt, in this case, are the same offense for double
jeopardy purposes; (2) the evidence was insufficient to support Haye‟s
unlawful entry convictions because the government did not prove he had
notice that he was barred from Garfield Terrace; and (3) the trial
court erred in not declaring a mistrial after a witness testified
about prior instances in which Haye had been barred from Garfield
Terrace. We agree with Haye‟s double jeopardy claim that, under the
facts of this case, he cannot be punished twice for unlawful entry and
criminal contempt, and we remand with instructions to vacate one of
Haye‟s convictions. In all other respects, we affirm the trial court‟s
This consolidated appeal arises from two separate cases stemming from two incidents in September 2010. The origin of the cases dates back to December 2009, when Haye was arrested for drug possession in the Garfield Terrace housing complex. Darnell Douglass, a police officer with the District‟s Housing Authority, approached Haye as he was being arrested and notified him that, as a result of his arrest, he would be barred from entering Garfield Terrace for the next five years. Officer Douglass then issued a Housing Authority barring notice, but because Haye was in handcuffs when he issued the barring notice, Officer Douglass gave the notice to the arresting officer to place in a bag with Haye‟s belongings. Although he did not know whether Haye ever received the physical copy of the barring notice, Officer Douglass explained to Haye "in detail the parts of the barring notice," including a description of the boundaries of Garfield Terrace and the five-year duration of the bar. He "explained to [Haye] that he is barred from Garfield property, that under no circumstances is he permitted to enter back onto the property, even if he‟s invited by a guest [or] resident," including Haye‟s mother who lived in Garfield Terrace.
On two occasions in September 2010, Haye returned to Garfield Terrace. On September 17, he was arrested in his mother‟s Garfield Terrace apartment at 2301 11th Street by Metropolitan Police Department Sergeant Ramey Kyle who had learned of Haye‟s presence in the building when he attended a community meeting there and the residents were complaining about Haye. As a pretrial condition of his release, the Superior Court ordered Haye to "stay away from . . . the entire premises of 2301 11th Street, Northwest, Washington, D.C."
On September 22, 2010, the property manager for Garfield Terrace, Dorothy Glenn, saw Haye coming toward 2301 11th Street and saw him "walk in the building." Glenn testified that she recognized Haye because he had been barred from the premises several times before, and she knew he was the son of a Garfield Terrace resident.
The trial court found Haye guilty of unlawful entry and criminal contempt based on his return to Garfield Terrace on September 22 and of unlawful entry based on his September 17 return. In finding Haye guilty of unlawful entry on September 22, the trial court found that Officer Douglass had given Haye "sufficient notice . . . as to where he was barred from" and that Haye "was specifically given the boundaries by Officer Douglass . . . and [he] heard what was said to him," and on September 22, "a person who knew him well, . . . Ms. Glenn[,] saw him back at Garfield Terrace." The trial court also found Haye guilty of contempt based on his September 22 return, concluding that the government had proved that Haye "got notice" of the conditional-release order and "willfully violated" it. Haye was found guilty of a second count of unlawful entry for his September 17 return "based upon all the testimony [the trial court] heard, the barring notice, the fact that it was orally given to him, that there‟s no evidence he didn‟t hear it or understand it, that he was aware that he was barred and he returned voluntarily."
A.Successive Punishments for the Same Offense
The Double Jeopardy Clause of the Fifth Amendment protects against
multiple punishments for the same criminal offense, unless multiple
punishments are expressly authorized by the legislature. Whalen v.
United States, 445 U.S. 684, 689, 692 (1980) (holding that "[t]he
Double Jeopardy Clause at the very least precludes federal courts from
imposing consecutive sentences unless authorized by Congress to do
so," and "where two statutory provisions proscribe the "same offense,‟
they are construed not to authorize cumulative punishments in the
absence of a clear indication of contrary legislative
intent").*fn4 To determine whether multiple
punishments are for the same criminal offense, we apply the
""same-elements‟ test," otherwise known as the Blockburger*fn5
test. United States v. Dixon, 509 U.S. 688, 696 (1993); see
also Bradley v. United States, 856 A.2d 1157, 1160 (D.C. 2004). The
Blockburger test "inquires whether each offense contains an element
not contained in the other; if not, they are the "same offence‟ and
double jeopardy bars additional punishment and successive
prosecution." Dixon, 509 U.S. at 696.
The Blockburger test also applies in the context of criminal contempt convictions for violations of conditional-release orders. In Dixon, a case like this one involving a contempt prosecution under D.C. Code § 23-1329 (as well as a violation of a civil protection order), Justice Scalia, writing for the majority, applied the Blockburger test to hold that the prosecution for criminal contempt based on violating a conditional-release order that prohibited commission of any criminal offense barred the subsequent prosecution for the underlying criminal offense. 509 U.S. at 697-700.
A majority of the Dixon Court agreed that the Blockburger "same-elements" test applies to double jeopardy claims involving prosecutions for criminal contempt and substantive criminal law violations; however, the fractured opinion produced no consensus on how to apply the Blockburger test in this context. To determine the elements of the contempt offense, Justice Scalia looked at the provision of the order that was violated because "the statute by itself imposes no legal obligation on anyone. . . . Dixon‟s cocaine possession . . . was not an offense under § 23-1329 until a judge incorporated the statutory drug offense into his release order." Dixon, 509 U.S. at 697-98. Chief Justice Rehnquist, on the other hand, would have examined the statutory elements of criminal contempt. See id. at 714 (Rehnquist, J., concurring in ...