Criminal Law Blog

Evidence of gun crimes in a DC neighborhood not relevant to whether a gun could be found in that neighborhood.

Grady v. United States (decided March 15, 2018).

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, Senior Judge Nebeker. Opinion by Chief Judge Blackburne-Rigsby. PDS for Mr. Grady. Trial Judge: Zoe Bush.

Facts: MPD Officer Armando De los Santos was responding to a reported domestic incident when he saw a man walking on the street he believed matched the description he had been provided, though the government admitted on appeal that the man did not match exactly. While remaining in his car, De los Santos made two or three attempts to speak to this man—later identified as Mr. Grady—and asked him if he had argued with anyone that night. Mr. Grady responded, “No, what do you want to talk to me about,” before stopping between two parked cars about ten to fifteen feet from the officer. Mr. Grady then backed up towards either a “large station wagon or small SUV.” The officer claimed that at that point he could see Mr. Grady through the car’s windows and saw him “put one of his hands inside a middle zippered pocket of his coat and ‘fumble’ with something inside for about three to five seconds” before he suddenly heard “the sound of a hard or heavy object hitting the ground where” Mr. Grady was standing. De los Santos then got out of his car and went to that spot where he saw a gun lying on the ground. A second officer placed Mr. Grady under arrest.

The morning before jury selection, the defense served a subpoena duces tecum on MPD for “All data pertaining to reports or arrests of individuals unlawfully possessing a firearm, including but not limited to arrests for carrying a pistol without a license (CPWL), possession of an unregistered firearm, unlawful possession of a firearm and/or ammunition and felon in possession of a firearm in the MPD Third District Police Service Area (PSA 304),” which is where the crime occurred, “from 10/27/00 to 10/27/2014.” The government moved to quash the subpoena arguing that it was untimely, overbroad, and sought irrelevant information. The trial court agreed, ruling that the evidence sought was inadmissible and the subpoena too broad for MPD to comply with. The following day, the defense served a second subpoena, that was not part of the trial or the appellate record. The government having not seen the contents of the subpoena still sought to quash it and the trial court decided that it was standing by its previous ruling on the subpoena.

During trial, the defense tried to elicit testimony from Officer De los Santos about the neighborhood gun-crime statistics, asking whether “during the last few years, there ha[d] . . . been a number of gun-related crimes” in the area. The government objected on relevance grounds and the defense contended the testimony was relevant as to “how a gun could possibly end up there” without it having come from Mr. Grady. The trial court ruled the evidence was not sufficiently relevant to show how a gun could have been at that location at that time. But during redirect examination, the court permitted the government to ask the officer “how frequently” in his twenty-two years of experience he had “seen guns just lying on the ground in the first place or on the street.” The officer said never. The defense then sought to recross-examine the officer about the prevalence of gun crimes in the neighborhood, but the trial court would not allow it. Later at trial, Officer Fosso, the arresting officer, testified on cross-examination that it was “commonplace” to arrive at a scene to find a gun without there being a person to arrest because the gun had just been found there but he did not personally remember a time when he had found a gun while walking on a street.

Issue 1: Did the trial court abuse its discretion when it quashed the defense’s two subpoenas duces tecum because they were overbroad?

Holding: No. The Court concluded it was not an abuse of discretion to quash the first subpoena and refuse to enforce the second for seeking the same information as the first. The Court found no error in the trial court’s reasoning that the subpoena was “confusing and likely too broad for the department to comply with,” since it potentially encompassed an extremely large number of civilian calls and unsubstantiated claims. Also, the Court stated that the defense when given the chance failed to explain how the subpoena could be narrowly tailored. The Court also said any gun-crime statistics evidence would have been cumulative to Officer Fosso’s testimony that he knew of instances where guns were found without there also being a person to arrest.

Issue 2: Was it a violation of the Confrontation Clause for the trial court to preclude the defense from cross-examining and recross-examining Officer De los Santos on his knowledge of gun-crime rates in the neighborhood where the defendant was arrested?

Holding: No. The Court agreed with the trial court that any testimony regarding gun-crime rates that the defense sought would have been irrelevant because “[n]othing in the record” suggested that someone other than the defendant had the motive or the opportunity to have dropped the gun. The Court cited De los Santos’s testimony that he saw the defendant move to conceal himself behind a vehicle, saw his hands go into his pockets, and heard a heavy object hit the ground, which is exactly where police found a gun moments later.

The Court also did not think such evidence was needed to minimize the incriminating effect of De los Santos’s testimony on redirect because introducing “isolated testimony on gun-crime statistics would [have] provide[d] the jury with an incomplete account of the actual likelihood that someone other than [the defendant] had left the gun at the spot where he was stopped and arrested.” The Court reasoned that statistics alone do not prove a systematic pattern. “If Officer De los Santos had been permitted to testify regarding the prevalence of gun-crime rates in PSA 304, the jury, without hearing statistics of other neighborhoods as a comparison could have idly speculated that another person left the gun, even if the rate was low, relative to other neighborhoods. . . . [The defense] tried to show that the rate of gun crimes is tied to the frequency with which people discards gun, but he failed to introduce any evidence to support his claim.”

Of note:

  • To any extent the government tries to use evidence of frequency of gun crimes against a defendant, either at a suppression hearing, preliminary hearing, or trial, this opinion may be able to be used against them.
  • If a defendant in the future wants to seek similar statistics as part of the defense, the key to negating this opinion’s impact will likely be limiting the request to some degree and having an argument to respond to the Court’s statement in the opinion that the defense did not present evidence connecting the rate of gun crimes to the frequency with which people discard guns. BM

Read the full opinion here.