Andrew L. Weems, Appellant,
v.
United States, Appellee.
Submitted: September 29, 2016 [*]
Appeal
from the Superior Court of the District of Columbia
(CMD-17718-14) Hon. Ann O'Regan Keary, Trial Judge
Ariel
Roytenberg, Student Attorney (No. 14465), and Moses Cook,
Supervising Attorney, were on the initial brief for
appellant. Samantha Montalbano, Student Attorney (No. 15869),
and Michael Barfield, Supervising Attorney, were on the
supplemental brief for appellant.
Channing D. Phillips, United States Attorney at the time, and
Elizabeth Trosman, Elizabeth H. Danello, and Marco A.
Palmieri, Assistant United States Attorneys, were on the
initial brief for appellee. Jessie K. Liu, United States
Attorney, and Elizabeth Trosman, Nicholas P. Coleman, and
Eric Hansford, Assistant United States Attorneys, were on the
supplemental brief for appellee.
Before
Glickman and Easterly, Associate Judges, and Pryor, Senior
Judge.
OPINION
GLICKMAN, ASSOCIATE JUDGE.
Andrew
Weems appeals his convictions after a bench trial of
shoplifting and attempted threats to do bodily harm. He
contends the trial judge erred by (1) not sanctioning the
government for its failure to preserve and produce
discoverable evidence; and (2) permitting the government to
amend the information before trial to reduce the threats
charges against him and thereby eliminate his statutory
entitlement to a trial by jury. We reject appellant's
claims of error and affirm his convictions.
I.
Appellant
was arrested inside a Wal-Mart store in Northwest Washington,
D.C., on the evening of October 6, 2014. Reginald Bryant, a
Wal-Mart employee and a manager in the store's Asset
Protection section, testified at trial that he was
"walking the floor" at around 6:30 p.m. when he
observed appellant collect four watches from their display
shelves in the jewelry department and take them over to the
bedding department. Bryant followed appellant there and saw
him kneel down in the aisle and remove the security sensor
tags attached to each watch by biting them off with his
teeth. Appellant put the tags and watch packaging on a shelf,
pocketed the watches, and returned to the jewelry aisle to
take five more watches. Bryant contacted Danielle Davis,
another Wal-Mart employee working in Asset Protection, who
was monitoring the store's video camera surveillance
system. He also contacted Medgar Webster, a Metropolitan
Police Officer who was off-duty but in the store providing
uniformed security for Wal-Mart at the time.
Officer
Webster testified that he went to the Asset Protection
office. There, with Bryant and Davis, he viewed appellant on
a video monitor. Officer Webster then went back to the floor
with Bryant to confront appellant in person. They found
appellant back in the bedding aisle biting the security tags
off the additional watches he had taken and concealing the
watches in his pants pocket. Officer Webster arrested
appellant for shoplifting, escorted him to the Asset
Protection office, and confiscated the watches from him.
While
sitting handcuffed in the office, appellant became visibly
agitated and angry. Addressing Bryant and Davis, he declared,
"If I go to jail for this [expletive deleted]
misdemeanor I'm going to come back up here and . . .
I'm going to bring the noise. . . . I know your faces, .
. . you too, [expletive deleted]. . . . [O]nce I get out of
jail I'm going to come back up [expletive deleted] and
get both of you [expletive deleted]." These remarks were
the basis for the threats charges against appellant.
Officer
Webster did not retain custody of the watches after taking
them from appellant. Instead, he handed the watches over to
Wal-Mart's Asset Protection personnel. The record does
not reveal what happened to the watches after
that.[1]Nor did Officer Webster collect the
security tags or attempt to obtain or preserve a copy of the
video surveillance footage showing appellant's
actions.[2] It is not clear whether the security
tags ever were recovered, [3] and Wal-Mart later advised the
government and appellant's counsel that any recorded
footage of the incident had been lost in a hard drive crash
in December 2014. Consequently, the government did not
produce the watches, security tags, or video footage to
appellant in pretrial discovery, and it did not introduce any
of that evidence at trial.
Contending
that the government had violated its obligations under
Superior Court Criminal Rule 16 by failing to preserve the
watches, tags, and video surveillance footage for pretrial
discovery, appellant moved for dismissal of the information
or an appropriate lesser sanction.[4] The trial judge denied
this motion, ruling that (1) the government had not violated
Rule 16 because Officer Webster never took possession of the
evidence, and that (2) it would be inappropriate to sanction
the government for its failure to secure the watches, tags,
and surveillance footage because (a) there was no showing of
bad faith but only, at worst, negligence on Officer
Webster's part, and (b) appellant was not prejudiced by
the absence of the evidence.
II.
We
review the judge's discovery rulings for abuse of
discretion, subject to the qualification that the proper
construction of Criminal Rule 16 is a legal question as to
which our review is de novo.[5] Because Rule 16
derives from and mirrors the corresponding rule in the
Federal Rules of Criminal Procedure, we may look for guidance
to cases construing that rule.[6]
Rule 16
imposes disclosure obligations on "the government."
We have said that these duties apply "not only to the
prosecutor's office, but also to all other investigative
agencies of the government" in whose name the
prosecution is brought - in other words, to the entire
"prosecution team."[7] The present case involves
what is now Rule 16 (a)(1)(E), [8] which entitles a criminal
defendant to inspect and copy evidence "within the
government's possession, custody, or control" if the
item is material to the preparation of the defense, if the
government intends to use the item in its case-in-chief at
trial, or if the item was obtained from or belongs to the
defendant. This Rule 16 duty to permit pretrial discovery
entails an antecedent duty to preserve material that the
government has obtained and knows or should know is
discoverable.[9] However, these duties of preservation
and disclosure extend only to evidence that actually is
within the possession, custody, or control of the government;
they do not presuppose any duty on the part of the government
to acquire evidence it does not have from private parties or
other outside sources.[10] If the evidence at issue was
never within the government's possession, custody, or
control, "there can be no Rule 16 violation" in the
government's failure to preserve and produce
it.[11]
Thus
the threshold and, as it turns out, largely dispositive issue
in this case is whether the government acquired
"possession, custody, or control" of the watches,
security tags, or surveillance video footage. As used in Rule
16, the words "possession," "custody,"
and "control" have overlapping but different
meanings. We agree with appellant that the terms refer to
three "forms of dominion."[12]
The
first term in the triad is "possession." For the
sake of clarity, and to distinguish it from the other two
terms, we may understand "possession" in Rule 16
cases to refer to "actual possession" -
"direct physical control over a
thing."[13]
The
second term, "custody" typically refers to the
(often temporary) "care and control of a thing or person
for inspection, preservation, or
security."[14] Unlike "possession," which
might be understood to imply a property interest or usage
right of some kind, the term "custody" makes clear
that the government must disclose discoverable items in which
it has no such interest or right and that it merely holds for
the benefit of another.[15]
Last
but not least is the term "control." This court has
not yet had to consider the definition of
"control," as that term is used in Rule 16, when
the item in question is in the hands of a private or other
non-governmental entity - which is the pertinent question in
this case. However, under the corresponding federal Criminal
Rule and the similar discovery provisions of the Federal
Rules of Civil Procedure, courts have held that
"control" in that situation means the government
has the "legal right" and ability to obtain the
item from the other entity "upon
demand."[16] The term "control"
normally implies, in other words, the government's
"direct or indirect power" to acquire or access the
materials at will and by right.[17]The government's
right to obtain material from another entity on demand may
arise under extrinsic law, as when the material is the
property of the government. It also has been held to arise by
express agreement[18] or where the government shares
access to, and utilization of, materials acquired or used in
an investigation conducted jointly with the other
entity.[19] It is not enough, however, that the
entity in possession of the item would be willing to permit
access or provide the item on request; the need for the
possessor's voluntary acquiescence shows that control is
lodged in the possessor rather than the government. Moreover,
acceptance of such an expanded definition of Rule 16
"control" would impermissibly impose on the
government a duty to acquire evidence it does not have, which
is, as we have said, well beyond the Rule's intended
scope.[20]
Similarly,
the fact that the government (like the defendant or any other
party) might obtain or gain access to an item from its
possessor by means of a subpoena duces tecum or
other discovery mechanism cannot be enough to establish that
the government has "control" over the item within
the meaning of Rule 16; on the contrary, the need to resort
to such legal process would show that the basic indicia of
control are absent.[21] And it goes without saying that the
government's ability to take a thing by force without
right does not equate to Rule 16 control.
Thus,
while appellant proposes that "control" should be
understood to encompass the government's "practical
ability" to obtain material held by another party, we
consider that to be an overbroad formulation, and one that
case law has repudiated. In Nelson, for example,
when this court held that "[t]he government is not
obligated to obtain [evidence] from private sources, which it
does not intend to use for trial, to meet the requirements of
. . . Super. Ct. Crim. R. 16, "[22] we
"reject[ed the] . . . argument that the ability to
obtain materials from private sources constitutes
constructive possession of them" for purposes of that
Rule.[23]
Appellant
counters that in Robinson[24] the court held that
under Rule 16 the government must undertake to obtain
evidence from third parties for disclosure to the defense
when the government knows or should know of its existence and
materiality even if the government does not have a legal
right to obtain the evidence upon demand. That is a
misreading of the case, however. Robinson did not
involve evidence in private hands or evidence to which the
government lacked legal entitlement. Rather, the issue, as
the court framed it, was "whether the government has a
duty to preserve evidence obviously material which, as the
trial court found, the police knew or should have known
about, and could have obtained if requested promptly from
another government agency."[25] The evidence in
question, a recording of the defendant's allegedly
threatening phone call from prison to the complainant, had
been in the possession of a District of Columbia government
agency, the Department of Corrections ("DOC").
Although the DOC may not have been subject to Rule 16's
preservation requirements because it is not "an
investigative arm" of the government, [26] the
District of Columbia police knew or should have known that
the DOC had the recording of the phone call, and the court
took it as a given that the police, as part of the
same government, would have had unfettered access to
it and readily could have obtained and preserved it had they
acted in time. On that premise, the evidence was within the
government's control for purposes of Rule 16 even though
it was not within the actual physical possession of the
police. Accordingly, we held that Rule 16 imposed an
obligation on the police, "as an integral part of the
prosecution team," to secure the recording for the
defendant's pretrial inspection.[27] This conclusion
has no application where the evidence is in private or
non-governmental hands.
In the
present case, after appellant was apprehended, the security
tags and the surveillance footage at issue may have been in
the possession, custody, or control of Wal-Mart (more
specifically, its Asset Protection staff members Bryant and
Davis), but Officer Webster never handled or took charge of
them. Nor did he undertake to tell Wal-Mart's employees
what to do with the items. Although Wal-Mart employed Officer
Webster to provide uniformed police security at the store,
the record does not show that Wal-Mart had placed him in
charge of its property or given him authority over its asset
protection personnel. Wal-Mart was legally free to dispose of
the security tags and surveillance tape as it wished; the
government had no contractual or other legal interest in or
entitlement to them.
Appellant
argues that Bryant and Davis, as "parties investigating
[him] in pursuit of a criminal prosecution" along with
Officer Webster, were "members of the prosecution
team" whose "investigatory actions must be
attributed to the government so that the government may not
evade its obligations" under Rule 16.[28]But the
record does not show this to be a case in which the
government engaged in such evasion, for example by
"leaving relevant evidence to repose in the hands of
another . . . while utilizing [its] access to it in preparing
[its] case for trial."[29] It is more accurate to
say that Bryant and Davis were witnesses who reported what
they observed to Officer Webster and cooperated with him when
he proceeded to investigate and arrest appellant. In doing
so, they were private parties acting as agents of their
private employer to protect its property from theft, not as
agents of law enforcement.[30] While we assume there
can be circumstances in which a private party is sufficiently
aligned with and subject to the direction of the police or
prosecutor as to be deemed a member of the prosecution team
for Rule 16 purposes, [31] we do not find such circumstances
to be present here. The Wal-Mart Asset Protection staff
members did not join the government's prosecution team
merely by being cooperating witnesses, who "stand in a
very different position in relation to the prosecution than
do police officers and other governmental
agents."[32] As cooperating civilian witnesses,
Bryant and Davis did not subject themselves or Wal-Mart to
the governance of the police or prosecution or the
requirements of Rule 16. The government did not gain actual
"control" of evidentiary items in their or
Wal-Mart's possession within the meaning of that Rule
merely because they voluntarily provided information and aid
to Officer Webster in the performance of his duties.
We
conclude that the security tags and surveillance footage were
never in the government's possession, custody, or
control, and that the government's failure to preserve
those items for appellant's inspection did not violate
Rule 16 or call for judicial sanction.
We
cannot say the same about the watches recovered from
appellant at the Wal-Mart. As Officer Webster testified, he
searched appellant and "seized" the watches from
appellant's person. Although Officer Webster then
returned the merchandise to Wal-Mart, it is clear that for
some period of time he had "care and control" of
the watches for "inspection, preservation, or
security."[33] Hence the watches were within
Officer Webster's, and therefore the government's,
actual physical custody, if only briefly so.[34] While it
may be understandable that the officer promptly turned over
the watches to Wal-Mart, his brief custody of them was
sufficient to trigger the ...