Criminal Law Blog

Convictions reversed based on erroneous introduction of physical evidence without proper foundation

Smith v. United States (decided December 28, 2017)

Players: Associate Judges Thompson and Beckwith. Senior Judge Farrell. Opinion for the Court by Judge Thompson. Opinion concurring in part and dissenting in part by Judge Farrell. Ian A. Herbert, Nathaniel Edmonds, Jamie Gardner, Matthew Crossman, and Danielle R.A. Susanj for Mr. Smith. Trial Judge Rhonda Reid-Winston.

Facts: A man “with dreadlocks, or cornrows” knocked on complainant’s apartment door one evening and asked for a cigarette. Complainant recognized the man as someone he had given cigarettes before but told the man that he did not have any and closed the door. About a half-hour later, the same man knocked on complainant’s door and asked the same question. When complainant again said no, someone pushed the door open, and the cornrowed-or-dreadlocked man entered the apartment with two others who, unlike their companion, were wearing ski masks.

A masked man subdued complainant and bound his hands, while the mask-less man started removing complainant’s televisions. A masked man told complainant not to say anything to the police, adding “[w]e know where you live.” Later, when there was a knock at the door, the mask-less man opened it, closed it very quickly, announced that the police were at the door, and ran out of the back bedroom. The masked men also ran.

Officer Simic testified that when he knocked on complainant’s door (in response to a call for an assault in progress), a man in a dark outfit with long dreadlocks wearing black gloves opened the door and slammed it seconds later. At trial, Simic identified appellant as the man who answered the door and testified that he saw appellant jump out of a window after Officer Ellis yelled “Police[.] [D]on’t jump.” Ellis, who chased the jumper on foot, gave inconsistent testimony about his identity.

Officer Hernandez followed in his vehicle to a wooded area where he eventually found appellant lying on the ground and arrested him. Appellant told Hernandez he had “the man’s” wallet in his back pocket. In addition, police found several items that belonged to complainant on appellant’s person. Appellant told police that someone passed the property to him when either “we” or “they” were jumping out of the window.

Hernandez did not find the gloves that Simic included in his description of the door-answerer on or near appellant at the time of his arrest. Nevertheless, the government introduced a pair of gloves at trial that Simic testified he received from another officer who did not testify. Simic testified that these gloves were the ones worn by the door-answerer.

Complainant testified that he had “never seen [appellant] before,” and that the man who entered his apartment without a mask was much taller. Appellant testified that as he was walking by complainant’s apartment window on the date in question, a man asked him to help with a TV and then disappeared inside. Appellant then saw a man in a black coat leap from the window and run away. Appellant testified that he picked up a wallet, phone, and MP3 player from the grass where the man landed and ran after the police started chasing him. Appellant denied wearing gloves that evening.

Although the government argued that appellant was one of the burglars inside complainant’s apartment, the trial court instructed the jury on aiding and abetting, stating that it was not necessary for appellant to have been present while the crime was committed. Appellant requested a three paragraph theory of the case instruction which stated not only that he had not been present during the burglary but also that the property he picked up had been dropped by an unknown person. The trial court refused to give the final paragraph of the instruction regarding how appellant came to possess the property. The jury found appellant guilty of first-degree burglary, kidnapping, robbery, and threatening to kidnap or injure a person.

Issue 1: Was there sufficient evidence to support appellant’s convictions?

Holding: Yes. The jury was free to credit Officer Simic notwithstanding the discrepancies in his description of appellant. The jury could also credit that appellant stated “we” jumped out of a window, when he was being arrested. The jury was entitled to discredit appellant’s innocent explanation for how he came to possess complainant’s property.

Issue 2: Did the trial court reversibly err in admitting the gloves without proper evidence of where they were found?

Holding: Yes. Although a missing link in the chain of custody generally goes to weight rather than admissibility, the DCCA has applied this principle only to items found in the defendant’s possession. Here, appellant was not wearing the gloves when he was arrested; nor were they found where he was arrested. Even assuming, as Simic testified, that the man who answered the door was wearing the gloves, they did not tend to prove that appellant was the door-answerer absent proof that police recovered them from appellant. The gloves were thus irrelevant.

Similarly, the gloves were prejudicial because they suggested—without actually proving—that appellant was the man who answered the door, which was the central dispute of fact at trial. The government emphasized the gloves in closing as key corroboration for Simic’s identification of appellant. Without improper corroboration from the gloves, it is reasonably likely that the jury would not have discounted appellant’s misidentification defense. The government's case was not overwhelming. The officers other than Simic were inconsistent or equivocal in their identifications of appellant as the jumper. The complainant testified that appellant was not the person who entered his home.

Issue 3: Did the trial court err by removing the third paragraph of appellant’s proposed theory-of-the-case instruction regarding how he came to possess complainant’s property?

Holding: Yes. Given that the jury was instructed on aiding and abetting, appellant was entitled to have the jury instructed on his contention that he did not know—and thus could not have been aiding—the burglar who jumped out of the window and dropped complainant’s property. This contention was a necessary component of appellant’s defense to aiding and abetting. Without it, appellant “may” have been deprived of his constitutional right to present a defense to aiding and abetting.

Of Note:

  • Judge Farrell concurs in the Court’s assignments of error but would not reverse.
  • While noting that appellant “arguably” failed to preserve his objection to admitting the gloves, the Court declined to apply the plain error standard because the government did not urge its application. 
  • In light of its ruling that the gloves were irrelevant and prejudicial, the Court declined to resolve appellant’s argument that admitting the gloves without proper foundation amounted to implied hearsay in violation of the Confrontation Clause. The Court noted, however, that it was “fair to say” that the gloves either were irrelevant and prejudicial, as it concluded, or relied on implied hearsay in violation of the Confrontation Clause. WC

Read the full opinion here.