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Smith v. United States

Court of Appeals of Columbia District

September 21, 2017

Damian Smith, Appellant,
United States, Appellee.

          Submitted December 20, 2016

         Appeal from the Superior Court of the District of Columbia (CF2-14109-13) Hon. Neal E. Kravitz, Trial Judge

          William C. Claiborne, III was on the brief for appellant.

          Charming D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Andrew Floyd, and Janani J. Iyengar, Assistant United States Attorneys were on the brief for appellee.

          Before Easterly, Associate Judge, and Washington, [*] and Ferren, Senior Judges.



         Appellant, Damian Smith, was convicted of possession with intent to distribute a schedule I controlled substance, [1] "3-4 methylenedioxypyrovalerone" (MDPV), commonly known as "Bath Salts." He appeals his conviction, arguing for reversal on two grounds: (1) the government failed to preserve physical evidence material to the defense and discoverable pursuant to Super Ct. Crim. R. 16 (a)(1)(C); and (2) there was insufficient evidence to justify Smith's intention to distribute the MDPV found in his possession. We affirm.

         I. Facts and Proceedings

         On July 20, 2015, a jury found Smith guilty of Possession with Intent to Distribute (PWID) based on his possession of MDPV. According to the government's evidence at trial, he had been arrested on August 9, 2013, after his girlfriend, Iesha Miller, called the police from her apartment. When Officer Armand Artinian responded to the call, he saw Smith on the couch without pants, dressed in his boxer briefs. Before taking Smith into custody, Officer Artinian asked him if he had pants he could wear. According to Artinian, Smith replied that he had clothing in Miller's car, but Miller interjected that Smith had "some clothing in the bedroom." Officer Artinian retrieved a pair of shorts from a bed in the bedroom, and Miller confirmed that these were the clothing she had in mind.

         The officer then "walked over to Mr. Smith [with the shorts] and said, 'Here. Put these on.'" Smith declined to do so (in Artinian's words) because "they were not his" - they had "a hole in the crotch or a tear in the crotch."[2] The officer then searched the shorts, found and removed "a bag full of white pills, " handed the shorts to Smith, and directed him to put them on. Smith did so and was photographed wearing the shorts. This photograph was admitted in evidence at trial over defense objection.

         Smith was wearing the shorts when he was transported to the D.C. jail, and although the corrections officials took the shorts in exchange for jail garb, they were not formally seized as evidence by the government. Smith was detained in the jail for six months for violation of the terms of release on an unrelated domestic violence charge and for sundry parole violations. He never retrieved the shorts, [3]which apparently were destroyed.[4]

         In addition to denying Smith's motion to suppress the pills seized from the shorts, the trial court declined Smith's Rule 16 request to suppress the photo showing Smith wearing them.[5] The government conceded, and the court agreed, that the government had violated its Rule 16 obligation by failing to preserve the shorts. Contrary to Smith's assertion, however, the court did not perceive a "deliberate" or "intentional" destruction or loss of the shorts; it found the government culpable only of "negligence" and accordingly fashioned three Rule 16 sanctions. The prosecution was precluded from (1) arguing that the shorts fit Smith; (2) eliciting opinion testimony from the police about whether the shorts fit; and (3) objecting (as hearsay) to admission of Smith's prior out-of-court statement that the shorts were not his.

         II. Rule 16 Issue

         A. Standard of Review

         On appeal, Smith argues that the sanctions imposed against the government for failing to preserve the shorts were inadequate. Contrary to the trial court's finding, he maintains that the government had "deliberately destroyed the shorts after extracting from them all of the evidentiary value." As a consequence, he says, the "staged" photograph depicting his wearing the shorts at the scene of arrest (in an effort to show that they "fit") should have been withheld from the jury as an essential Rule 16 sanction.

         In challenging the trial court's refusal "to suppress the photograph, " Smith stresses that the court, as a matter of law, misapplied the factors required for determining appropriate Rule 16 sanctions. We review ultimately for abuse of trial court discretion, [6] an analysis that - if we find legal error along the way - extends to determining, as a separate matter, whether the error was of a "magnitude to require reversal, "[7] or, instead, was "harmless" under Kotteakos v. United States.[8]Initially, therefore, we review de novo whether the court considered the proper factors in assessing whether and how to sanction the government for its Rule 16 violation.[9]

         B. Law Governing Evaluation of Trial Court Sanctions under Rule 16

         Recently, in Koonce v. District of Columbia, [10] this court reconfirmed the following three criteria for evaluating trial court sanction decisions under Rule 16. We must weigh "(1) the degree of [government] negligence or bad faith involved; (2) the importance of the evidence lost; and (3) the evidence of guilt adduced at trial[, ] in order to come to a determination that will serve the ends of justice."[11]This court has commonly applied these criteria verbatim to sanctions analysis in Rule 16 cases.[12]

         1. "The Degree of Negligence or Bad Faith Involved" (culpability for the loss)

         We look, first, at culpability for the loss. For context we begin with the obvious: unless the government could prove that the shorts in which the drugs were found belonged to Smith, there could be no conviction. Thus, absent the shorts, the photo of Smith wearing them was essential to the government's case, and Smith's defense substantially turned on rebutting the government's prima facie showing, through the photo, that they fit him. As explained below, the trial court committed two errors. First, the government's fault was greater than the trial court found. Second, and contrary to another trial court finding, responsibility for loss of the shorts was not properly allocated, even in part, to appellant Smith.

         a. The Government's Negligence

         As we have noted, at trial the court rejected Smith's allegation that the government had deliberately destroyed the shorts. Rather, the court attributed that loss to "ordinary negligence on the part of the government"; there was no "bad faith or any intention to hide material evidence" - no record basis "to believe that the government thought the shorts were somehow exculpatory or otherwise beneficial to the defense and sought to hide them from the defendant."[13] The court elaborated:

My sense of what happened is that Officer Artinian just did not understand the pertinence of the shorts .... It's somewhat surprising to me. He's been an officer for several years. But I guess he's not a - he's not a narcotics investigator. And I guess he was just thinking of this, as government counsel has said, really as a domestic violence investigation and didn't realize that these other issues were - were of importance. That said, I think he should have realized it. And that's why I think there's some negligence here.[14]

         In finding "ordinary" or "some" negligence, the trial court limited the government's neglect to the actions of Officer Artinian, based on the officer's own apparent impression or assumption that the shorts were not exculpatory. As far as we can tell, moreover, the court appeared to understand the officer's neglect as an exercise of poor judgment, not as a violation of an MPD general order specifying that police "officers must preserve all potentially discoverable material" that "comes into the[ir] possession."[15] The government, however, has a Rule 16 obligation that transcends the judgment of an "individual officer."[16] "We have repeatedly recognized that the government has a general duty to preserve discoverable evidence under Superior Court Criminal Rule 16 (a)(1)(C) and long-established case law."[17]

         Earlier, at the pretrial hearing on sundry motions to suppress, the trial court appeared to recognize that Officer Artinian was not alone at fault. After citing the government's Gerstein proffer, [18] which referenced the drugs found in a "pair of men's shorts, " the court remarked that the "U.S. Attorney's Office would have understood the evidentiary significance of those shorts" and "probably should have gotten a search warrant" to seize them. But the court apparently did not factor the prosecutor's inaction into the negligence calculus.

         We may assume that an arrestee's clothing, exchanged for prison garb, does not inherently signal evidentiary significance (in contrast, for example, with a videotape of an arrest scene). But the trial court here assuredly recognized before trial that the shorts the police had ordered Smith to wear - distinguishable from a arrestee's usual clothing by Smith's disclaimer of ownership - qualified for preservation under Rule 16. Thus, despite the court's observation at trial limiting government culpability to the negligence of Officer Artinian, the court had to be aware, from the pretrial hearing, of the significance of the shorts for the defense, and thus of the prosecutor's - not just the officer's - responsibility to preserve that evidence.

         Accordingly, given the prosecutor's as well as the officer's negligence - only the latter of which the court clearly appears to have factored into its culpability analysis - we cannot say that the government's fault was limited to the court's reliance on Officer Artinian's simple negligence. To be sure, we have observed that "[t]he trial court has considerable discretion in determining the degree of negligence or bad faith involved in the failure to preserve evidence, " and "[w]e will disturb the trial court's findings that the government did not act in bad faith or was not grossly negligent only if those findings are plainly wrong or without facts to support [them]."[19] In this case, however, we must conclude that the facts do not support a limitation of the government's culpability to ordinary negligence (even if we were to assume that the trial court's awareness of the prosecutor's responsibility was folded into the ordinary negligence determination). We are satisfied that evidence supports the trial court's finding that the government did not "deliberately" fail to preserve the shorts handed to Smith. But on this record, given the failure not just one, but two, responsible government departments to assure the required preservation, we perceive no less than gross negligence by the government.[20]

         b. Erroneous Assignment of Partial Culpability to Appellant

         The trial court, however, did not limit its negligence analysis to the government; the court injected the question whether Smith himself shared responsibility for assuring retention of the shorts. This, too, was clear error.

         Early at the pretrial hearing, counsel for Smith informed the court that neither he nor "anyone else [he] was aware of" (implying previous counsel at Smith's arraignment) had told Smith "to preserve those shorts." Later at the hearing, the prosecutor explained that the D.C. Jail followed a standard procedure: holding inmate clothing no longer than 15 days after intake, subject to destruction unless retrieved on the inmate's behalf. Nonetheless, in learning of that policy, the trial court did not address whether the government, knowing the importance of the shorts to the defense, had a duty to make timely disclosure of that policy at arraignment or otherwise within the 15 days. Instead, the trial court responded to the destruction policy, as applied to the shorts, merely by saying that it "sounds like they're probably destroyed." The court then went on to assign partial responsibility for loss of the shorts to Smith:

[T]he equities [were] not entirely on the defendant's side, given the defendant actually had possession of the shorts for some period of time when he was under arrest and before he was transported to the D.C. Jail and that he and his lawyer certainly had just as good an opportunity as the government to understand the materiality of these shorts.

         The court, in other words, was suggesting that although Officer Artinian had seized the MDPV pills at the scene of arrest, Smith continued to wear the shorts until he was processed at D.C. Jail, and then at the court, leaving him (once he had a lawyer) in a position to assure their retention as evidence. Exploiting that opportunity, reasoned the court, would have supported Smith's assertion at the scene of arrest (if true) that the shorts were not his.

         Contrary to the trial court's statement quoted above, there is nothing of record to indicate that Smith had an opportunity to assess the legal significance of the shorts between his arrest and intake at the jail on August 9, 2013, and his arraignment the next day in court when counsel was appointed for him. Smith concedes in his brief that the Department of Corrections (DOC) provided him "with a notice saying that it was the [Department's] policy to destroy all property taken from inmates, including clothing, if not picked up within 15 days." However, neither Smith's brief nor the trial court record discloses when Smith received this notice; nor does the government argue that the notice shifted any responsibility to Smith for retrieval of the shorts.[21]

         In any event, whatever notice of the 15-day destruction policy Smith may have received, such notice was irrelevant to the trial court's sanctions analysis. The trial court had already determined that the government had violated its obligation to disclose, pursuant to Rule 16, a tangible object in its custody or control. We are aware of no authority that would permit notice of a policy to destroy objects in the government's custody or control to override the government's "general duty to preserve discoverable evidence" (here the shorts) under "Rule 16 (a)(1)(C) and long-established case law."[22] Nor is there any evidence that Smith in any way thwarted the government's preservation of the shorts. Accordingly, we are unwilling to say that the government's failure to preserve the shorts in its custody can be mitigated by an opportunity the defense may have had to prevent their disappearance.[23]

         2. "Importance of the Evidence Lost" (magnitude of adversity to defense preparation)

         We turn, next, to the importance of the evidence lost - the magnitude of adversity to defense preparation - absent remedial sanctions.[24] At the outset of trial, the court recognized that the photograph of Smith wearing the shorts, which Smith sought to keep from the jury, was highly material to the government's case. Indeed, if the photo showed that the shorts fit Smith, it would support a finding that the MDPV pills found on the shorts were Smith's as well. Thus "ultimately, " the court observed, "the photograph is probably going to be viewed as the most relevant evidence to the jury."

         Smith does not dispute that the contested photo entered in evidence depicted him wearing the shorts. At a pretrial colloquy with counsel, however, the trial court observed that the photo did not necessarily show a clear fit, if only because Smith's shirt was pulled over the waist.[25] Nonetheless, with Smith standing up, the shorts fit well enough not to fall down. Moreover, if not precluded by sanction, officers at the scene would have been free to testify that the shorts fit Smith, and the prosecutor, if not also precluded, would surely have reminded the jury of that testimony in closing argument.

         Had the shorts been available at trial, we cannot say that Smith could have proved that they did not fit. But with their loss - without effective mitigating sanctions in place - it is evident from the photo (and Officer Artinian's testimony) that Smith's denial that he owned the shorts faced substantial, if not insurmountable, roadblocks.[26]

         3. "Evidence of Guilt Adduced at Trial"

         We consider, finally, the third Koonce criterion for evaluating sanctions: "the evidence of guilt adduced at trial[, ] in order to come to a determination that [would] serve the ends of justice."[27] The evidence of Smith's guilt was substantial, primarily (1) pills (according to expert testimony) filled with an unlawful controlled substance taken from shorts that were identified to the police as Smith's by his girlfriend, and (2) shorts that appeared to fit Smith, as evidenced by a photo from the scene of the arrest and seizure. Again: absent sanctions effectively mitigating unavailability of the shorts at trial, Smith's opportunity to rebut the government's prima facie case that the shorts and pills belonged to him was undoubtedly jeopardized.

         Our evaluation of this "guilt" criterion requires us to determine whether the sanctions that limited prosecution tactics were both responsive and proportional to the government's failure to produce the shorts, in order to ensure not only that any advantage to the government from that loss was effectively mitigated but also to provide adequate deterrence against similar derelictions in the future.[28] We are satisfied that the trial court adequately satisfied these concerns.

         Because the trial court could not dismiss the case absent a showing that the government had acted in bad faith, [29] the trial court took mitigation of the Rule 16 violations very seriously; it carefully crafted sanctions that precluded the government from capitalizing on that violation. In recognizing that a central issue would be whether the shorts fit Smith, the court, as we have noted, precluded the government from: (1) arguing that the shorts fit Smith; (2) eliciting testimony from the police about whether ...

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