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Smith v. United States

Court of Appeals of The District of Columbia

December 28, 2017

Joseph Phil Smith, Appellant,
v.
United States, Appellee.

          Argued March 20, 2017

         Appeal from the Superior Court of the District of Columbia (CF3-1399-13) (Hon. Rhonda Reid-Winston, Trial Judge)

          Ian A. Herbert, with whom Nathaniel Edmonds, Jamie Gardner, Matthew Crossman, and Danielle R.A. Susanj, were on the brief, for appellant.

          Jennifer B. Loeb, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Peter Lallas, Assistant United States Attorneys, were on the brief, for appellee.

          Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

          OPINION

          Thompson, Associate Judge.

         A jury found appellant Joseph P. Smith guilty of first-degree burglary, kidnapping, robbery, and threatening to kidnap or injure a person. Appellant argues in this appeal that the evidence was insufficient for conviction and that the trial court erred in admitting certain testimony and physical evidence, in refusing to give a portion of appellant's defense theory in instructing the jury, and in failing to intervene when the prosecutor made allegedly improper statements during closing argument. We are satisfied that the evidence was sufficient for conviction, but are persuaded that appellant is entitled to relief based on what we conclude was the erroneous admission of an item of physical evidence. We therefore reverse and remand for a new trial.

         I.

         The government presented evidence at trial that on the evening of January 27, 2013, Michael Hilliard was at home in his apartment at 2410 Good Hope Road, S.E., when a man "with dreadlocks, or cornrows" knocked on his door and asked whether he had a cigarette. Mr. Hilliard testified that he had "seen [the man] around" and had given him cigarettes before. Mr. Hilliard told the man that he did not and then closed the door. About half an hour later, the same man knocked on Mr. Hilliard's door again and asked the same question. After Mr. Hilliard again said "no, " "somebody came rushing in, [and] pushed the door open." Mr. Hilliard testified that a total of "[m]aybe three" people, two of whom were wearing ski masks, entered his apartment at that time, including "the person with dreads." At that point, a struggle ensued until one of the men in a ski mask tied Mr. Hilliard's hands behind his back with wire from a speaker. The man with dreadlocks began to move two of Mr. Hilliard's television sets. Mr. Hilliard later discovered that his laptop had been moved, and that his keys, MP3 player, mobile hotspot device, portable speakers, and wallet were missing. He testified that one of the men in a ski mask said to him, "Don't say anything [to the police]. We know where you live."[1] At some point after Mr. Hilliard's hands had been tied, there was a knock at the door, and the man with the dreadlocks went to the door, opened it, and then closed it "real fast and said it was the police." The man ran "out the back . . . bedroom, " and the other two individuals also "took off running."

         Metropolitan Police Department (MPD) Officer Filip Simic testified that, in response to a call for an assault in progress, he knocked on the door of Mr. Hilliard's apartment. Officer Simic told the jury that a man "with an all dark outfit, " "long dreads, " and "black gloves" - a man Officer Simic identified in court as appellant - answered the door. For about "four to five seconds, " Officer Simic and the man "lock[ed] . . . eyes" before the man "slammed the door in [the officer's] face."

         Officer Simic ran back out of the building to obtain assistance from his fellow officers and to tell them to stay outside in case anyone tried to escape through any of the windows. Officer Simic testified that he saw appellant "come out [a] window" that was about eight to ten feet above the ground (even though another officer, Officer Jennifer Ellis, had yelled, "[P]olice, don't jump"). After initially testifying that she did not see in the courtroom the man with "long dreads" who jumped out of the window and identifying that man as appellant's co-defendant Andrew Roberson, Officer Ellis testified that appellant was the man she saw jump out of the apartment window after she had yelled for him to stop.

         Officer Johnny Hernandez similarly testified that he saw "the young man jump out the window at 2410 Good Hope Road, and saw Officer Ellis run after the man. Officer Hernandez initially followed the two in his vehicle, but eventually exited his car when the man ran into a wooded area. Searching the area with a flashlight, Officer Hernandez eventually found appellant, lying on the ground. After placing appellant in handcuffs, Officer Hernandez patted him down for any weapons and asked whether he "had anything." Appellant answered, "I have the man's . . . wallet in my . . . back pocket." Officer Aaron Makanoff testified that he found on appellant a number of items that belonged to complainant Hilliard: a mobile hotspot, an MP3 player, identification cards, and keys. Officer Makanoff testified that when appellant was in the police scout car after his apprehension, appellant said that the property found on him was passed to him when "[w]e were jumping out of" the window.[2]

         The government offered into evidence and the court admitted a pair of gloves (Government Exhibit 31) that Officer Simic testified were the "same gloves" he saw appellant wearing when he opened the door to Mr. Hilliard's apartment in response to the officer's knock. Officer Simic further testified that he received the gloves from Officer Ernest Higginbotham and that he gave the gloves to Officer Hernandez to put into evidence.

         Appellant testified that he was never in Mr. Hilliard's apartment and never jumped out of a window. He told the jury that on the evening of January 27, 2013, he left his apartment to go to a gas station on Good Hope Road to buy orange juice for his daughter. He testified that as he was walking home from the gas station, he heard a person say "A-homes" and then turned and saw "a guy at the window." The "guy" asked appellant to "help him right quick" with "this TV." The "guy" then "disappeared" inside and, after a short time, appellant saw a man in a short black coat "leap[] from the window." When the man landed, he ran past appellant, and appellant noticed on the grass a wallet and what appellant thought were a phone and an MP3 player. Appellant testified that he picked up the items, placed them in his pockets, "started walking, " and then "started running" after he saw the police. Appellant testified that he did not have gloves on that evening.

         Appellant's trial counsel called Mr. Hilliard during the defense case to confirm that appellant is "not the person that entered [Mr. Hillard's] apartment." Mr. Hilliard answered that he had "never seen [appellant] before." Mr. Hilliard further testified that the assailant with the dreadlocks was much taller than he is. After defense counsel asked Mr. Hilliard to stand side-by-side with appellant, Mr. Hilliard agreed that "the person with dreadlocks was substantially taller than [appellant] who just stood beside [Mr. Hilliard]."

         II.

         We begin our analysis with appellant's argument that there was insufficient evidence to support his convictions. This, of course, impacts whether the government will have the opportunity to retry appellants if we find that any of the asserted errors constituted reversible error. See Evans v. United States, 122 A.3d 876, 886 (D.C. 2015) ("[W]e … address Mr. Evans's challenge to the sufficiency of the evidence, because a ruling in Mr. Evans's favor on that issue would bar retrial on Double Jeopardy grounds."); Ford v. United States, 533 A.2d 617, 627 (D.C. 1987) ("When the reversal is based on the insufficiency of the evidence, . . . a new trial is not permitted.").[3]

         Appellant contends that "no reasonable jury could conclude that the government had provided sufficiently reliable evidence to prove beyond a reasonable doubt that Mr. Smith was one of the burglars in Mr. Hilliard's apartment on the night of the alleged crimes." We disagree. '"In a sufficiency challenge we view the evidence in the light most favorable to the government, draw all reasonable inferences in the government's favor, and defer to the factfinder's credibility determinations."' Medina v. United States, 61 A.3d 637, 641 (D.C. 2013) (quoting Dunn v. United States, 976 A.2d 217, 221 (D.C. 2009)). "A court must deem the proof of guilt sufficient if, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the ...


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