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DC DV Case Digest

 

DOMESTIC VIOLENCE CASE DIGEST

for the DISTRICT OF COLUMBIA

Prepared by Darby Rourick & Parisa Pirooz (DV LEAP Interns), Last updated November 2017

for The Domestic Violence Legal Empowerment and Appeals Project (DV LEAP)

 

I. Civil Protection Order

   A. Subject Matter Jurisdiction

          o   Victims of non-intimate sexual assault, stalking, and sexual abuse are entitled to get a CPO under D.C. Code § 16-1001 and § 16-1003 regardless of whether or not their relationship to the defendant falls into the definitions of interpersonal, intimate partner, or intrafamily relationship. 

        o   Sharing a mutual residence is sufficient for subject matter jurisdiction.

        o   A court has subject matter jurisdiction over a CPO proceeding if the underlying offense occurred in the District of Columbia regardless of the residence of the parties.

        o   CPO orders are valid even if they have an extraterritorial effect (i.e. order a defendant to stay away from a place in another state).

   B. Scope of Intrafamily Offense Definition
  • Small v. Cannady, 142 Daily Wash. Law. Rep. 0701 (March 26, 2014) (Judge Edelman) (*Trial Court Decision)

        o   Crime of malicious destruction of property can, under some circumstances, constitute an “offense upon a person” and thus serve as the basis for a CPO.

       o   A trial court can grant a CPO even if the violence is not extreme (i.e., the defendant pushes the petitioner and holds the petitioner down against the petitioner’s will).

       o   Unlawful entry (staying in someone’s home after they have asked you to leave) can be an intrafamily offense.

       o   The Intrafamily Offense Act is not limited to violent or abusive crimes. The text of the statute applies to any crime.

       o   Defamation is not an intrafamily offense because it is not a crime.

       o   “Ex-boyfriend” falls within the definition of people with whom the complaining witness “maintained a romantic relationship” under D.C. Code § 16-1001(5).

   C.   Statute of Limitations for Criminal Offenses

      o   (4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment – 1 year;

      o   (8) for which a limitation is not otherwise specially prescribed – 3 years;

      o   (11) for the recovery of damages arising out of sexual abuse that occurred while the victim was a minor – 7 years from date that the victim attains the age of 18, or 3 years from when the victim knew, or reasonably should have known, of any act constituting abuse, whichever is later.

   D.   Purposes of CPOs

      o   It is improper to issue a CPO against a party, even if they committed an intrafamily offense, if there is no evidence that the other party felt threatened or feared any future violence.

      o   Issuance of a CPO to protect a victim “from herself” (i.e., the petitioner’s provocation purportedly triggering respondent’s violence) is an abuse of discretion.

      o   Where there is evidence to support a finding that the defendant has committed an intrafamily offense and no evidence that the petitioner only petitioned for a CPO in order to gain an advantage in a divorce, the CPO is affirmed.

  • Small v. Cannady, 142 Daily Wash. Law. Rep. 0701 (March 26, 2014) (Judge Edelman) (*Trial Court Decision)

      o   Whether a finding of destruction of property provides the necessary justification for the issuance of a CPO depends on whether the destruction potentially serves as a “precursor to, threat or instigator of, or substitution for violence, or otherwise comprises part of a violent or intimidating pattern of domination and control.” If so issuance of a CPO would serve the Intrafamily Offenses Act’s remedial purpose of protecting victims of family abuse from violence.

  • Gray v. Sobin, 142 Daily Wash. Law. Rep. (Feb. 14, 2014)(Judge Edelman) (*Trial Court Decision)

      o   The petitioner in this case was an employee of CSOSA and the Respondent was a registered sex offender who was required to report to CSOSA.  The Respondent created a website titled “the Idiot Registry” which included photos of the Petitioner at CSOSA. The Respondent also created and distributed flyers (with photos of the Petitioner) at CSOSA’s office.

      o   The court found that the flyers and website qualified as constitutionally protected activity exempt from the District’s stalking statute, as they were political speech or speech on matters of public concern regarding whether the sex offender registry was evil.

     o   Even if the court had found that the Respondent had committed the offense of stalking, the court declines to grant a CPO because “the type of Order requested in this sui generis case hardly seems consistent with the underlying purposes of the Intrafamily Offenses Act… [and]…the benefits to Petitioner from the issuance of the CPO would be far outweighed by the chilling effect on speech that would stem from the requested restraint.”

   E.    Mutual Civil Protection Orders

      o   Though the court granted a CPO for Ms. Fleet, they declined to grant one for Mr. Fleet because Ms. Fleet had not committed or threatened to commit a crime that would justify a CPO.

      o   New arguments cannot be raised on appeal and the trial court should be given the utmost discretion.

      o   In some circumstances when both parties have been violent, mutual protection orders may be appropriate.  Courts should, however, use discretion to only issue a CPO consistent with the goals of the Intrafamily Offense Act to protect victims of family abuse from violence and threats of violence, and may not issue a CPO where the opposing party does not fear any violence.

   F. Remedies
  • Vacate Order:

      o   Salvattera v. Ramirez, 111 A.3d 1032 (D.C. 2015)

           §  Considering the broad remedial purpose of the IFOA, the court may order the respondent to vacate the dwelling that the respondent does not share with the petitioner if it is necessary to effectuate a stay-away provision of a CPO pursuant to D.C. Code § 16-1005(c)

           §  Here, the petitioner did not live with respondent, but lived in the same apartment building and would have to pass respondent’s apartment every time she needed to enter or exit the building.

      o   Araya v. Keleta, 31 A.3d 78 (D.C. 2011)

           §  The term “marital property” should be interpreted liberally and encompasses a family dwelling  unit regardless of technical ownership.  Even though the deed of the house is solely in one party’s name, the house can be considered marital property if the couple has lived in the house since marriage.  Therefore, the court may order the party whose name appears on the deed to stay away from the property.  

  • Guns, Church:

      o   Rogers v. Johnson-Norman, (not reported) 2005 ***Note this is a memorandum opinion an judgment and was not published.

           §  Orders forcing a defendant to turn in the defendant’s guns do not violate the 2nd Amendment of the Constitution.

           §  Orders forcing a party to stay away from the petitioner’s place of worship do not violate the free exercise of religion or 2nd Amendment of the U.S. Constitution.

  • Stay-Away:

      o   Robinson v. Robinson, 886 A.2d 78 (D.C. 2005)

           §  A trial court should not give greater weight to a defendant’s property rights than to petitioner’s safety when deciding on appropriate CPO provisions. It is inconsistent with the Intrafamily Offense Act’ goal of protecting victims to allow the respondent to live next door to the victim if the violence is likely to continue. 

          §  A CPO court must consider the “entire mosaic” of facts.

  • Child Support:

      o   Powell v. Powell, 547 A.2d 973 (D.C. 1988)

           §  A trial court is authorized to award child support in a CPO proceeding if doing so is necessary to the effective resolution of the domestic violence matter (citing catch-all provision of statute).

   G. Extension of a Protection Order

      o   The Court of Appeals declined to decide whether a trial court could validly extend a TPO beyond 14 days in accordance with D.C. code § 16-1004(d), which at the time only allowed for an issuance of a TPO for not more than 14 days.  NB: D.C. Code § 16-1004 was later amended to allow for the court to extend a TPO in additional 14 day increments, or longer increments with the consent of the parties, to allow for the completion of the hearing.  (D.C. Code §16-1004(b)(2)).

      o   A civil protection order may only be extended on motion of a party to the original action.  The trial court may not sua sponte extend a civil protection order under D.C. Code § 16-1005(d), which states that a CPO may be extended upon motion of any party to the original proceeding.

      o   A trial court may not deny an extension of a CPO based solely on the fact that the defendant is incarcerated; this may be a factor in the judge’s decision but not the sole factor.

      o   If consent to an extension of a CPO is freely given, the judge should ordinarily issue the order unless there are strong reasons for not granting it.

      o   A trial judge is required to consider the whole past history of violence in the parties’ relationship when ruling on an extension of a CPO.  The trial judge must consider the “entire mosaic” of facts, not just those that occurred after the grant of the original CPO.

  H. Right to a Lawyer/Continuance

      o   A trial judge had broad discretion when deciding whether or not to grant a continuance in order for one party to obtain counsel.

      o   It is not an error for the trial court to deny a continuance to obtain counsel requested in the middle of the trial, when the defendant (a lawyer himself) had ample opportunity to obtain counsel before the trial.

      o   The trial court is not required to be lenient just because a party appears pro se.

      o   A defendant in CPO proceedings is not entitled to appointed counsel, even if they cannot afford one on their own, because these are civil proceedings.

I. Evidence/Procedure at Trial

     o   Where the petitioner and respondent are the same sex, the respondent’s sexual orientation is an improper factor for the trial court to rely upon in order to deny a CPO, because “sexual assaults may have motives other than sexual attraction.”  See D.C. Code § 22-3001 (9).  A finding that the respondent is heterosexual is an insufficient basis for finding the sexual assault did not occur.

     o   Cursory reference to “credibility concerns” in denying motion to reconsider is not sufficient to overcome possibility that sexual orientation was primary basis for decision.

      o   Acquittal of an offense in a criminal trial does not bar a CPO based on the same underlying offense because the standard of proof in criminal cases is much higher than that of civil cases.

      o   The defendant cannot argue on appeal that the trial was unfair because he or she did not get to cross examine the petitioner who did not testify.  The defendant can always call petitioner as an adverse witness.

      o   The trial court in a CPO proceeding may properly take notice of proceedings in related criminal matters.

  • Ray v. Tate, (not reported) 2010 ***Note: this is an unpublished memorandum opinion and judgement

      o   It is error for the trial court to base its decision on statements a party makes in closing arguments if they presented no evidence or testimony of these facts during the trial.

      o   If petitioner testifies, defendant has a right to cross-examine the petitioner even the petitioner is not represented by a lawyer.  Interrogation by the judge is not a sufficient alternative.

      o   It is proper for defendant to cross-examine petitioner regarding any possible prior abusive behavior towards the defendant and/or arrests resulting from this behavior, because a judge must base his or her decision on the “entire mosaic” of facts, not just on the most recent episode of violence.

   J. Defenses to a CPO

      o   A claim of self-defense cannot stand if there was sufficient time for the defendant to avoid the encounter by walking away.

   K. Attorneys’ Fees

      o   In order to determine if attorney’s fees are appropriate in a CPO case, the Court should follow the 2-step analysis announced in Rachal v. Rachal, 489 A.2d 476 (D.C. 2013):  (1) determine whether to award a fee and (2) determine the amount of the fee.

     o   There is no requirement that the court find litigation to be burdensome or oppressive before it awards attorney’s fees in a CPO action.

     o   The prospect of attorney’s fees may be essential in enabling a domestic violence victim to bring a case.

      o   An attorney who represents himself cannot be reimbursed for his own time, only expenses.  An award of attorney’s fee is intended, in part, to encourage plaintiff to seek legal advice and proceed with competent counsel.  The same reasoning applies even to skilled attorney litigants.

      o   Pro se attorney cannot recover attorney’s fees in the form of bad faith sanctions for his or her own time, only for a third party attorney. 

      o   It is not proper for the court to deny attorney’s fees based on the fact that the civil trial did not accomplish anything more than the criminal stay away order.

      o   It might be proper for the trial court to award attorney’s fees when only one party is successful in obtaining a CPO.  Attorney’s fees are important in ensuring that victims will have the financial means to pursue a CPO.

   L. Mootness of CPO Appeal

      o   The court will not find that an appeal to a CPO is moot just because the original order is extended or superseded by a new CPO because CPOs are capable of repetition, yet evading review.

      o   An appeal of a CPO is not moot even if the appellate hearing is not until after the CPO expires, if the defendant’s motion to expedite the appeal was denied.

      o   An appeal of a CPO is not moot, even if the hearing is not until after the CPO expires, if the defendant moves to expedite his or her appeal and the request is denied. These issues are capable of repetition, yet evading review.

   M. Interstate Full Faith and Credit/Comity

      o   Both the Full Faith and Credit Clause and principles of comity require a D.C. Superior Court judge to refrain from entering a CPO if a judge in another state issued an order requiring the person seeking the CPO to “endeavor to dismiss the CPO.”

II. Civil Contempt

   A. Jurisdiction/Procedure

           See also Custody/Jurisdiction, infra. 

     o   Where court relinquishes jurisdiction, civil contempt proceedings should stay with the original court, until the new court assumes jurisdiction.    

     NB:  Petition for Rehearing En Banc, with amicus by DV LEAP, has been filed.

      o   An adjudication of civil contempt cannot be appealed unless and until a sanction has been imposed. The mere finding of contempt, without a sanction, is not an appealable order.

      o   The trial court has discretion on whether to hold a party in civil contempt and will be reversed on appeal only upon a clear showing of an abuse of discretion.

      o   It is not necessary to show bad faith as an element for civil contempt.

   B. Purpose

      o   Unlike criminal contempt which is designed to punish the offender, civil contempt is a sanction used to enforce compliance with a court order.

      o   “If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt, the sentence is punitive, to vindicate the authority of the court,” citing Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 441 (1911).

      o   Civil contempt “is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance.”

C. Proof Required

      o   Civil contempt must be proved by clear and convincing evidence.

      o   To establish civil contempt, the complainant must prove that the alleged contemnor was subject to the terms of a court order, and that he or she violated it, by clear and convincing evidence.

D. Right to a Lawyer

      o   The right to appointed counsel depends exclusively on the deprivation of liberty and thus applies even where the proceeding in question is purely a civil one. See Lassiter.

      o   This protection extends to contempt proceedings, which are considered civil if meant to coerce a prospective act, and criminal if meant to punish a past one. So, incarceration to enforce civil contempt proceedings creates a right to counsel at a hearing.  

      o   It is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel. Courts must consider appointment of counsel when Termination of Parental Rights at stake

   E. Defenses

      o    The District of Columbia recognizes two defenses in civil contempt proceedings: substantial compliance and inability to do that which the court commanded.

      o   Once noncompliance with a judicial order is factually established, “the burden of establishing justification for noncompliance shifts to the alleged contemnor.”

      o   The defense of necessity does not apply if there existed an opportunity to resort to a reasonable legal alternative to violating the law.

      o   Court rejected mother’s defense of necessity where mother claimed to have violated visitation order to prevent sexual abuse of daughter by father, because the court determined that there were legal alternatives available to address the mother’s concern.  (Decision vacated for unrelated reasons.)

      o   The absence of willfulness does not relieve the Defendant from civil contempt. 

 

III. Criminal Contempt

A. Enforcement of CPO – Who Can Enforce

      o   The private beneficiary of a CPO may not prosecute a criminal contempt hearing.

      o   Participation of a prosecutor is “essential to the delivery of justice.”

      o   Follows Jackson and reiterates the two-step process set forth in that case:  (1) The trial judge should first ask the U.S. Attorney’s Office and the Office of the Attorney General to prosecute in the name and on behalf of the United States.  (2) If neither is willing to prosecute, the trial judge must appoint a disinterested prosecutor.

      o   A judge may initiate, but not prosecute, a criminal contempt hearing.

      o   Dicta:  Only a disinterested prosecutor may pursue a criminal contempt enforcement action.  The trial judge should first ask the U.S. Attorney’s Office or the Office of the Attorney General to prosecute in the name and behalf of the United States.  If neither are willing to prosecute the trial judge may appoint a disinterested prosecutor.

      o   ** Appears to silently overrule Robertson II

      o   Robertson II did not reverse Robertson I’s holding on how cases are captioned. Robertson II only reversed Robertson I’s holding that a contempt action to enforce a CPO was a private action that should be brought in the interest of a private party.

       o   If a beneficiary of a CPO wants to enforce the CPO and hold the defendant in criminal contempt, the action must be brought in the name of the United States.

       o   It was not plain error for a trial court to conclude that a plea agreement where the U.S. Government agreed not to bring charges related to an incident in June did not bar a privately prosecuted criminal contempt action based on the same incident.

       o   ** Robertson II reversed decision in In re Robertson I

       o   Justices Roberts, Kennedy, Scalia and Sotomayor dissented from the court’s decision to dismiss certiorari as improvidently granted.

       o   Dissent emphasized that a criminal contempt action may only be brought in the name and power of the United States, and vigorously criticized the idea of a privately litigated “criminal prosecution.”

       o   Justices Sotomayor and Kennedy conditioned their joining with Justice Robert’s dissent on “the understanding that the narrow holding it proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders.”

       o   Court upheld right of private party to bring criminal contempt against a defendant to enforce a CPO.

       o   It is not error for a court to allow petitioner’s lawyer to represent the petitioner during a criminal contempt hearing. The defendant has no right to a public prosecutor.  [NB:  This decision appears to be implicitly overruled by Robertson and Jackson]

   B. Jurisdiction/Procedure

       o   The Court of Appeals originally held that a reversal is required if the defendant’s lawyer concedes a violation of a CPO without a showing that the defendant was apprised of the consequences of a concession, as a concession is in effect equivalent to a guilty plea.  On rehearing en banc, the Court of Appeals held that the conviction should not have been overturned on this point, because the defendant did not raise this issue in trial court or in the defendant’s brief so the petitioner did not have opportunity to brief the issue.

      o   The jurisdictional grounds laid out in D.C. Code § 16-1006 only apply to the filing of a CPO petition.  Once the CPO is issued, the court has the authority to enforce it regardless of whether or not the petitioner lives, works, attends school, or is under legal custody of the District and regardless of whether the alleged incidents giving rise to the claim of contempt occurred within the District.

      o   Even if the trial court lacked subject matter jurisdiction to issue a CPO, this is not a defense to a contempt proceeding.  The invalid order must be obeyed until reversed or vacated.

      o   The defendant must comply with a court order, even if it is later found to be invalid, until it is reversed or vacated.

      o   A defendant is not prejudiced by the trial court’s failure to identify which of several violations of a CPO gave rise to a sole charge of criminal contempt. A trial court has authority to reduce a series of contemptuous acts to a single instance of contempt.

      o   The Court of Appeals may not reverse a trial court’s factual findings on a CPO violation unless they are without evidentiary support or plainly wrong.  However, whether the acts the defendant was found to have engaged in are a CPO violation is a question of law that the court reviews de novo.

      o   The use of summary proceedings to hold a defendant in contempt is only appropriate when the contempt is committed in the presence of the judge and there is an immediate need to take action because the defendant’s conduct threatens to disrupt the ongoing procedure. 

      o   Contempt for violating a CPO is criminal contempt because it punishes someone for violating a judicial order.  Therefore, the trial court is required to find proof beyond a reasonable doubt that the defendant violated the CPO.

      o   A trial court’s failure to apply the correct burden of proof (beyond a reasonable doubt) is harmful error if it is not apparent from the trial transcript whether the court would have ruled the same way with the more stringent burden of proof.

      o   Where father is not party to neglect proceeding involving mother and is not given notice of application for stay-away order and the opportunity to be heard, as required by D.C. Code § 16-1004(c), court did not acquire personal jurisdiction and stay-away order was nullity.

      o   D.C. Code § 16-1004(d) permits the trial court to enter a temporary protective order upon a showing of imminent danger, but only “upon the filing of a petition under oath,” not on an oral motion.

   C. Willful Violation

       o   Evidence that a defendant left a drug assessment program before completion when participants in the program are allowed to leave at any time and CSOSA was aware that the defendant left (even though the defendant was warned that they would be in contempt) is insufficient evidence that he violated the CPO’s order to enroll in a drug treatment program.

       o   A condition contained in the CPO which is merely a pre-requisite to having unsupervised visitation with his or her child, cannot trigger contempt if he or she fails to comply with the condition.

       o   It may be error for the judge to instruct the jury that, “willfully means that the defendant knew what he was doing, it does not mean that he knew that he was breaking the law,” because this could be interpreted to mean that the defendant did not need to understand the terms of the CPO.  If, however, the defendant has already stipulated to the fact that the defendant understood the terms of the order, there is no plain error.

       o   In order to meet the burden of proof that defendant “willfully violated” the CPO, moving party must prove defendant was served with or otherwise knew about the CPO.  See Williams, supra. 

       o   Defendant can be found in contempt of a TPO even if the parties have just left the courtroom if there is enough space for him to technically comply with the order.

       o   Evidence that a defendant is hovering over the petitioner and talking loudly is sufficient to establish a willful violation of an order requiring him to stay away from the petitioner.

       o   Defendant’s contact with the petitioner’s lawyer urging the lawyer to pass information on to the petitioner, not about the case, is sufficient evidence that the defendant violated the no-contact provision of a CPO by indirectly trying to contact the petitioner.

      o   A defendant cannot be found guilty of violating a CPO while in the courtroom if he or she is not given sufficient notice of the manner in which he or she should conduct himself in the courtroom and if the courtroom is not big enough for the defendant to comply with the terms of the order (i.e., how far apart the defendant must stay from the petitioner). 

      o   The government cannot be credited with affirmatively proving that the defendant is aware of the terms of the CPO merely by discrediting the contrary testimony of the defendant. Additional affirmative evidence is required.

      o   The fact that the defendant is served with the CPO on the record in court is sufficient to prove that the defendant knew the terms of the civil protection order. 

      o   Where there is no evidence that the defendant is informed of or understood a class’s policy regarding absences, there is insufficient evidence to establish that the defendant willfully violated a CPO’s requirement that he attend domestic violence classes. 

      o   The fact that a defendant unsuccessfully tried to vacate the CPO is sufficient evidence to prove that the defendant knew that the civil protection order was still in effect.

      o   Criminal law recognizes the doctrine that an otherwise criminal act is excused "if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendants' breach of the law." Griffin v. United States, 447 A.2d 776,  777 (D.C. 1982)cert. den. sub nom. Snyder v. United States, 461 U.S. 907, 103 S.Ct. 1879, 76  L.Ed.2d 810 (1983).

     o   The defense of necessity does not apply if there existed an opportunity to resort to a reasonable legal alternative to violating the law.

    o   Court rejected mother’s defense of necessity where mother claimed to have violated visitation order to prevent sexual abuse of daughter by father, because the court determined that there were legal alternatives available to address the mother’s concern.  (Decision vacated for unrelated reasons.)

   D. Discovery

      o   A petitioner does not have to comply with the discovery rules for prosecutors because the petitioner is not acting on behalf of the government.

      o   *Appears to have been effectively overruled by In Re Jackson, 51 A.3d 529 (D.C. 2012) and In Re Robertson, 19 A.3d 751 (D.C. 2011) because these cases indicate that a criminal contempt action must be brought in the name and power of the United States (not by the victim).

      o   A defendant has no right to request discovery materials under Superior Court Criminal Rule 26.2 because the rules have no application in intrafamily proceedings and even if they did their application is limited solely to prosecutors, which would exclude private attorneys. 

     o   *Appears effectively over-ruled in light of Robertson and Jackson.

   E. Evidence at Trial

      o   The fact that the government fails to introduce evidence concerning how long the CPO is in effect does not necessarily mean that there is insufficient evidence to show that the defendant violated the order. If the evidence shows that the defendant violated the order shortly after it was put in effect, the jury could reasonably find that the CPO was still in effect and that the defendant violated it. 

      o   If a trial judge bases his or her reasoning for finding a defendant in contempt of a CPO on erroneous factual findings, such as the alleged testimony of a party who never actually testified in court or facts that a party allegedly testified to that the party is not on the record as testifying to, the conviction must be reversed.

      o   Statements that the petitioner told the defendant on the phone that the defendant’s conduct in calling the petitioner was violating the CPO are not inadmissible hearsay if offered to show that the defendant was aware of the provisions of the CPO.  The statements are inadmissible hearsay to prove the truth of the matter asserted:  that the defendant violated the CPO.

   F. Consent Defense

      o   Consent is not a valid defense to a violation of a CPO.  Even if the petitioner attempted to reconcile with the defendant and subsequently consented to prior contacts with the defendant, this cannot be used as a defense to other violations of a CPO.

      o   The court did not reach the question of whether or not consent is a valid defense to violation of the CPO, holding instead that even if there was consent, consent is not a valid defense if the consent has clearly been revoked prior to the incident giving rise to the contempt violation.

      o   This authority is limited in light of Clark and Shirley, supra.

   G. Right to a Lawyer/Jury Trial

      o   A defendant does not have a right to a jury trial for petty offenses. A contempt offense only carries a maximum penalty of 180 days in jail and a $1,000 fine and will therefore usually be a petty offense.

     o   The award of restitution in a contempt hearing does not give the defendant a right to a jury trial.

      o   A defendant in an indirect criminal contempt matter has a right to be represented by a lawyer.

      o   It is an error for the trial court to deny a newly appointed lawyer’s request for a continuance in order to prepare the case if the judge, in denying the request, relies on the fact that the defendant had sufficient time before the hearing to obtain counsel and the defendant was not informed of his or her right to counsel until the day of the hearing.

     o   Where father opposing neglect petition was still only a suspect in a criminal investigation of the disappearance and suspected murder of the children’s mother, the Sixth Amendment right to counsel did not come into play.  (Reversed for other reasons.)

   H. Mootness of Contempt Appeal

      o   An appeal of a contempt conviction is not moot even if the defendant already served his or her sentences because there are sufficient collateral consequences of the conviction and the issue is capable of repetition yet evading review.

   I. Criminal Contempt and Double Jeopardy

      o   Following the Dixon analysis:  If the defendant is charged with criminal contempt for violating the civil protection order, and the underlying crime (in this case unlawful entry), which was the subject of the CPO violation, there are double jeopardy concerns.  If, however, the violation of the CPO is based on a distinct offense from the crimes charged, there are no double jeopardy concerns.  See Clark, infra.

      o   Convictions for criminal contempt and convictions for crimes based on the underlying conduct that constituted the criminal contempt violate the double jeopardy clause unless the criminal offense and the criminal contempt charges each involve a separate element that the prosecution must prove.

J. Obstruction of Justice

      o   Defendant cannot be convicted of obstruction of justice for sending a letter threatening the petitioner to drop contempt charges withoutsufficient evidence that defendant was involved with the mailing of the threatening letter.  Circumstantial evidence that the letter contained facts not widely known to people other than the defendant is not sufficient.

 

IV. Child Custody and Domestic Violence

   A. Custody

JURISDICTION

      o   Court’s relinquishment of jurisdiction to NY where custodial parent removed children to NY without permission or consent was permissible, despite the resulting denial of parenting rights to left-behind parent. 

      o   Mitchell v. Hughes, 755 A.2d 456 (D.C. 2000), no longer governs because UCCJEA has replaced UCCJA, and UCCJEA does not seek to deter abductions, as did the UCCJA.  [incorrect]

      o   Even where court order does not specify prohibition on removing the children from the jurisdiction, DCCA does not “condone” parent’s removal of the children – but it is still not an “improper or unlawful means” of destroying the children’s ties with the other parent’s state for purposes of jurisdiction determination.    

      o   The trial court has broad discretion in ruling on forum non conveniens motions, and the DCCA will reverse such a decision only if the trial court’s decision was manifestly unreasonable.

NB: A Petition for Rehearing En Banc, with DV LEAP and BFC amicus briefs, is pending.

      o   The parental kidnapping statute (D.C. Code § 16–1005(c)) imposes no requirement that the victim be moved any particular distance or held for any particular length of time so long as the child is purposefully removed from the custodial parent with the intention of preventing the custodial parent from exercising her control.

      o   A trial court can find a “material change in circumstances” if there was an unforeseen consequence of an earlier order, especially when that consequence is not in the best interests of the children.

      o   In this case, a 2012 order had given Downing (father) tie-breaking authority in parental disputes. The court determined that this amounted to de facto sole legal custody, which the court had previously denied. Because Downing only used his authority to get his own way, pulling his children out of all extracurricular activities, the court held that his tie-breaking authority should  be removed and an FTC should have that authority.

      o   A trial court is required either to conduct an evidentiary hearing or explain with specificity why such a hearing was not required when serious allegations of child abuse are raised in a motion to modify custody.

     o   There is no reversible error of judicial bias where a judge in a custody hearing gives weight to the no abuse findings of a second judge, who had ruled on a mother’s motion to dismiss for lack of jurisdiction.

     o   Under the D.C. Uniform Child Custody Jurisdiction and Enforcement Act, a child has a “significant connection” with the District, sufficient to establish jurisdiction to issue a custody order, where the child was born here, lived here for the first 2 ½ months of his life, received medical treatment in the District and one parent continued to live and work in the District. 

     o   If both parties have committed intrafamily offenses, the trial judge should separately evaluate each parent’s history of offenses to determine if the presumption in favor of joint custody has been rebutted or affected.  The fact that both parents have committed intrafamily offenses does not mean that the intrafamily offenses cancel each other out and that an award of joint custody is necessitated.

    o   In this case, the trial court found that while the mother’s conduct was “also reprehensible,” the court observed that it was not “so dangerous or so likely of repetition as [the father’s] episodic assaultive behavior.”

   o   It is not an abuse of discretion for the court to award physical custody to the mother in this case. The trial court’s findings were not against the weight of the evidence and there was no clear error.

     o   A trial judge’s failure to cite the relevant statute when one parent has been found to have committed an intrafamily offense, D.C. Code § 16-914(a-1), is not reversible error if the record shows that the judge did consider the domestic violence and the required findings can be implied.

     o   A trial court may consider evidence of parental alienation to rebut the presumption against awarding an abuser joint custody. 

     o   Appointment of a parenting coordinator may be inappropriate in some cases of domestic violence, but it is not a plain error (where the issue was not raised below), where the court was presented with expert evidence that one spouse presented no danger to the other spouse.  

     o   Distinguishes Wilkins, infra, because here the trial court explicitly listed each of the best interest factors in its decision (and because (some of) the expert testimony supported this court’s decision)

      o   A trial judge must explicitly evaluate a party’s commission of an intrafamily offense before awarding custody to that party.

      o   The exception to the presumption that joint custody is in the child’s best interests when one parent has committed an intrafamily offense is intended to disfavor the offender for joint or sole custody. It is clear that the DC Council, in providing that joint custody is presumed not to be in the best interest of the child when one parent has committed an intrafamily offense, did not intend that parent to be nonetheless entitled to sole custody.

      o   A trial judge should give weight to the children’s opinion and the Guardian Ad Litem’s recommendation, but does not have to follow them.

      o   In combined divorce and neglect proceedings, where the neglect proceeding is initiated against one parent, the trial court does not have the authority to deprive the other parent of custody, where there are no allegations of neglect against that parent.

      o   If the Court of Appeals remands a case because the judge did not properly consider evidence of an intrafamily offense committed by one party as required under D.C. law, the trial court, on remand, has discretion in deciding whether or not to allow a new hearing and additional evidence on the matter.  It is not an abuse of discretion to refuse a new hearing if the court already received extensive evidence on the matter.

     o   It is not an abuse of discretion for the trial court to find no intrafamily offense when one party grabs another so hard they leave bruises if there is some evidence that the touching may have been in self-defense.

      o   A trial judge’s failure to address evidence of domestic violence by one of the parties in a custody dispute is reversible error.

      o   It is not an error for a trial judge to consider factors such as which parent would be more likely to cooperate with the other parent regarding visitation.  

   B. Visitation

      o   Mother had the burden of proving that a temporary order should be permanent after getting a temporary order to suspend child custody and visitation from dad due to allegation of sexual allegations against dad.

      o   Once the court finds that a party has committed an intrafamily offense, the court must apply D.C. Code § 16-914 (a-1), which shifts the burden to the offender to prove visitation will not endanger the child or significantly impair the child’s emotional development. The court must also consider whether visitation will be in the best interests of the child, relying on the factors in D.C. Code §16-914 (a)(3).

      o   The safety of a child is always the court’s priority in custody/visitation.

      o   Adjudicated past intrafamily offenses, no matter the intervening legal developments, always trigger the statutory protections of D.C. Code § 16-914 (a-1)

      o   The trial court may not arbitrarily ignore uncontradicted expert testimony regarding visitation safety.

      o   A judge in a neglect trial may not rely simply on findings made in a CPO hearing with respect to visitation of the child,especially when there is conflicting testimony in the cases and the CPO judge specifically states that he is denying visitation to the parent unless the judge in the neglect case found visitation to be in the child’s best interests.  

C. Child Support

      o   The court does not have authority to order the defendant to attend a child support hearing if there is no showing that resolution of the support award is necessary for the resolution of the family violence matter or the contempt proceeding.

D. Attorneys’ Fees

      o   There is an exception to the American Rule when the court finds that counsel was necessary to protect the interests of the children.

      o   The fact that a court awards the opposing party visitation rights does not preclude the court from awarding the other party attorney’s fees.  This is merely one factor that may be considered.

      o   When the party whose custody the court has deemed to have been in the children’s best interests requires counsel, attorney’s fees may be granted to that party. 

E. Evidence at Trial

     o   The trial court is required to make explicit findings regarding applicable factors of the child’s best interest listed in D.C. Code § 16-914 (a)(3) when the court is making a custody award, but not when it is vacating a temporary custody order that suspends a custody award that already exists.

      o   A report of a domestic violence prevention training program may come in under the public record exception to the hearsay rule if the proponent can show that the facts contained in the document  are in the personal knowledge and observation of the recording official and that the document was prepared by a duty imposed by law or implied by the nature of the office.

 

V. Divorce, Division of Assets, and Domestic Violence

A. Division of Assets

      o   The trial court must provide a sufficient analysis of the factors in D.C. Code §16-910 when dividing marital property so the appellate court will be able to effectively review the trial court’s decisions.  Mere conclusory statements that the court considered the factors are insufficient.

     o   The trial court must consider the circumstances that led to the estrangement of the parties when dividing marital property.  This includes instances of domestic violence.

      o   The trial court should consider a party’s history of violence and threatening conduct against their partner when assessing each party’s contribution to the family unit.

      o   If one partner kills the other, with whom they hold property as joint tenants, the joint tenancy is converted in a tenancy in common, with the murderer sharing the property with the estate of the victim.

      o   The Court, however, did indicate that the result might have been different if the property was held as tenants by entirety.

   B. Spousal Support

     o   It is an abuse of discretion for the trial court to ignore evidence of emotional and physical abuse when deciding whether or not the party had a sufficient justification for leaving the marital residence.

    o   A finding that the party is or will be a ward of the state is not required in order to maintain an action for spousal support.  It is sufficient that the party is unable to finance their own independent living.

 

VI. Selected Criminal Cases

   A. Constitutionality of the Domestic Violence Court

      o   The Chief Justice had the authority to create the Domestic Violence Unit and for the Unit to hear criminal matters.

      o   Allowing the same judges to hear criminal and civil cases does not violate due process.

B. Evidence at Trial
  • Expert Testimony:

      o   United States v. Nwoye, 824 F.3d 1129 (D.C. Cir. 2016)

           §   Nwoye’s conspiracy conviction was reversed and remanded because her counsel’s decision not to call an expert witness to testify about Battered Women’s Syndrome was prejudicial

           §   Nwoye was convicted of conspiracy to extort money with her boyfriend. She proffered a duress defense, but her counsel did not obtain an expert to testify regarding BWS.

           §   Decision cites several social science and law review articles regarding battered women’s syndrome in analyzing whether an expert’s testimony would be relevant and reliable and could prove that Nwoye’s actions were reasonable.

     o   Girardot v. U.S., 92 A.3d 1107 (D.C. 2014) [Expert Testimony]

          §   The trial court properly applied the Dyas Analysis [(1) expert testimony is “beyond the ken” of the average layperson; (2) the witness has “sufficient skill, knowledge, or experience” in the field as to aid the trier of fact; and (3) the state of the scientific knowledge permits a reasonable opinion to be asserted by an expert] and did not abuse its discretion by excluding testimony of doctor, who was expert in children's cognitive processes, about the pressures and factors that could prompt a child to make false complaints of sexual abuse.

          §   Here, the trial judge ruled that:  (1) it is not beyond the ken of layperson to determine the credibility of witnesses who are children; (2) the expert witness did not have “sufficient knowledge, skill or experience in the field” based on “reading alone” because she had not read the latest editions of the sources she cited; (3) the claim that studies are “coming to a consensus” is insufficient to justify a conclusion that there is general acceptance in the scientific community. Egbuka v. U.S., 968 A.2d 511 (D.C. 2009)

          §   The Intrafamily Offenses Act does not waive marital privilege in a pending criminal case.

          §   It is error for the trial judge to fail to inform a spouse of  his/her marital privilege not to testify. This error is not harmless if the evidence suggests that the spouse would not have testified had he/she known about the privilege and the government’s remaining evidence would have been insufficient to convict.

     o   Nixon v. U.S., 728 A.2d 582 (D.C. 1999)

          §   Expert testimony on Battered Women’s Syndrome meets the standards of reliability and is helpful to the jury.

          §   Testimony on Battered Women’s Syndrome is relevant even if an expert did not testify regarding whether or not the victim in the particular case is suffering from it.

  • Other:

     o   Flores v. U.S., 698 A.2d 474 (D.C. 1997)

          §   Trial court may not arbitrarily limit time for cross examination of the government’s witnesses, especially when there are problems with interpretation and the witness’s understanding of the questions. Such error is not harmless if the other evidence in the case is fairly evenly balanced because further cross-examination of the witness may have been fruitful.

C. Admissibility of Prior Domestic Violence

      o   Evidence of domestic violence was sufficient to disprove self-defense claim because a reasonable jury could conclude beyond a reasonable doubt that there was no reasonable fear of imminent death/serious injury since there was no history physical abuse, serious injuries, or threats; the victim was unarmed; and defendant could have fled from the apartment.

      o   Shepherd appealed first degree murder conviction on self-defense grounds. The court acted within their discretion when they chose to exclude victim’s prior act of domestic violence against a third party.

      o   Defendant can only offer evidence of victim’s prior dropped criminal charges if there is proof that the charges were fabricated. 

      o   The trial judge may properly take notice of prior CPOs even if they are obtained through consent rather than a contested hearing.

      o   Prior acts of domestic violence are admissible if they are proven by clear and convincing evidence where the defendant puts his or her state of mind at issue by claiming self-defense.

      o   Government may not offer evidence of a defendant’s prior violence if the incidents are not closely intertwined with the charged offense.  The error is harmless if the government’s case is still strong without the evidence.

   D. Elements of Assault

      o   There are two distinct kinds of assaults: attempted battery assault and intent to frighten assault.

           §   CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA No. 4.1000 (5th ed. rev.  2013) define the elements of attempted battery assault as: 1. [the defendant] with force or violence, injured or attempted to injure [the complainant or another person]; 2.S/he intended to use force or violence against [the complainant or another person]; [and] 3. At the time, [the defendant] had the apparent ability to injure [the complainant or another person].

           §   “Injury” is “any physical injury, however small, including a touching offensive to a person of reasonable sensibility.”

           §   CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA No. 4.1000 (5th ed. rev. 2013) define the elements of intent-to-frighten assault as: 1. [the defendant] committed a threatening act that would reasonably create in another person a fear of immediate injury; 2. S/he intended to cause injury to or create fear in [name of complainant or another person]; [and]; 3. At the time, [the defendant] had the apparent ability to injure [the complainant or another person].[1]

      o   Attempted battery assault requires intent to cause a physical injury, or actual injury (broadly defined to include offensive contact).

      o   Intent to frighten assault requires proof that the defendant intended either to cause injury or create apprehension in the victim by engaging in some threatening conduct; an actual battery  need not be attempted.  Intent can be inferred from doing the act that constitutes the assault.

      o   NB: DC case law is somewhat unclear when it comes to the level of intent needed for intent-to frighten assault. While assault is called a general intent crime (See Smith v. U.S. infra), the Court of Appeals has held that the ACT itself must include an intent to frighten. The ACT element, rather than the INTENT element includes a requirement that sounds like specific intent (to frighten, not to injure).

      o   The specific intent required for attempted misdemeanor sexual abuse is “the intent to commit a sexual act in order to gratify the defendant’s sexual desire when the defendant knew or should have known that he did not have the complainant’s permission to engage in the sexual act or sexual contact.”

      o   Simple assault is a lesser-included offense of attempted misdemeanor sexual assault and a defendant may not stand convicted of both crimes for the same behavior.

      o   Consent is not a defense to a charge of assault with significant bodily injury.

      o   To establish assault with intent to frighten the government must show that: the defendant committed a threatening act that would create a reasonable fear of imminent injury; when the defendant committed the threatening act he [or she] had the present ability to injure the person; and the defendant committed the act voluntarily. 

     o   A defendant’s actions in reaching into his [or her] pocket while saying threatening words is sufficient to establish assault with intent to frighten even if the victim never saw a weapon and the defendant did not in fact have a weapon.

      o   The assault of pointing a gun at someone can only be upheld on an intent-to-frighten theory of assault, not attempted battery assault.

      o   The offense of assault, whether attempted battery assault or intent-to-frighten assault, is a general intent crime that may be proven by showing that the defendant intended to do the acts which constitute the assault.

   E. Threats

      o   Act: A threat consists of, first, a conduct element (“uttering words to another person”), and a result element (“with a result that ‘the ordinary hearer [would] reasonably… believe that the threatened harm would take place’”).

      o   Mens Rea: Where threats statute does not specify a mens rea, the defendant’s mens rea to utter the words as a threat must be proven, “by establishing that the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.”

      o   Recklessness may be sufficient; Court declines to decide.

      o   D.C. misdemeanor threats statute “does not require proof that a defendant threatened ‘serious bodily harm.’ All that is required is that the uttered ‘words were of such a nature as to convey fear of bodily harm or injury…’” (quoting Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006).

      o   Under federal threat statute which does not specify any mens rea, some degree of intent greater than negligence is required as a matter of general criminal jurisprudence.

      o   Knowing or intentional communication of a threat is always sufficient.

      o   Recklessness may be sufficient; Court declines to decide.

      o   Implicit in the D.C. threats statute is the requirement that the threat be conveyed to someone not necessarily the victim; proof that they were communicated to a third party is enough to show that the threat has been conveyed.

   F. Malicious Destruction of Property/ Destruction of Jointly Owned Property

      o   A joint owner of property may be found guilty for malicious destruction of property if he [or she] damages the jointly-owned property.

   G. Confrontation Rights

        Supreme Court:

      o   Three year old victim’s statements to preschool teachers identifying Defendant as the person who caused injuries were not testimonial, did not implicate the Confrontation Clause, and were therefore admissible at trial, where child was not permitted to testify.

      o   In addition to distinguishing between statements to police made in an ongoing emergency and those produced for trial, court should consider the formality of the interrogation and its context.

      o   Here the statements made by shooting victim in gas station were non-testimonial even though the attacker was not there. There was still an emergency because the attacker was on the loose and was a threat to the public; the interrogation was very informal; the declarant’s purpose was to get medical assistance, not provide testimony; and the police officer’s questions were all aimed at responding to an ongoing emergency.

      o   Hearsay statements that are testimonial in nature cannot be admitted under a forfeiture by wrongdoing theory unless it can be proven that the defendant killed the witness with the purpose of preventing the witness from testifying.

      o  Statements made to the police on a 911 call while the victim was still in danger are non-testimonial in nature.

      o  Statements made to the police after the emergency is over are testimonial in nature.  Emergency is over when police arrive on the scene, even if perpetrator is still present and must be restrained. 

       o  Hearsay statements from police interrogation that are testimonial in nature may not be admitted unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Statements made while in police custody are testimonial in nature.

         D.C. Court of Appeals:

      o   Admission of a compilation video of shooting committed by defendants did not violates the confrontation clause even though the creator of the video did not testify

      o   The defendant’s wife’s statement to police following a physical altercation between the couple is testimonial; therefore, the trial court made a “plain” error when they admitted the testimony since she did not testify at trial, thus violating defendant’s confrontation rights.

      o   Victim's statements to police were testimonial and admission of statements at trial was not harmless beyond a reasonable doubt, where Complainant’s statements to officer were the “crux” of the prosecution and the only other description of the assault would be victim’s vague statement during a 911 call.

      o   The confrontation clause requires calling laboratory scientists who match DNA profiles to the defendant to testify in cases where evidence of DNA matches is introduced.

      o   The doctrine of forfeiture by wrongdoing applies when the court finds by a preponderance of the evidence that the defendant procured the witness’s death or unavailability to benefit any person, not necessarily himself.  

      o   The forfeiture by wrongdoing exception to the Confrontation Clause only applies when the state can prove that the purpose of securing the unavailability of the witness was to prevent them from testifying.  The fact that the defendant murdered the witness is not sufficient if it cannot be shown that the purpose of murdering the witness was to prevent them from testifying.  See Giles, supra. 

      o   Admitting testimony relevant to the attacker’s identity in violation of the Confrontation Clause is  not harmless error, even if the identity of the attacker is not in dispute, if the statement also has implications relevant to proving or disproving defendant’s claim of self-defense.

      o   A victim’s recorded 911 call is not testimonial and is admissible when the call is made shortly after the victim has been attacked and the victim does not know where the defendant is or if the defendant might come back.

      o   Statements a victim made to a police officer when the police officer first arrives on the scene and is asking questions in order to effectively respond to an emergency are not testimonial in nature and therefore admission of these statements does not violate the Confrontation Clause.

      o   Statements made to a police officer after the police officer has dissipated the emergency and detained the defendant are testimonial in nature and admission of these statements (without opportunity for cross-examination) violates the Confrontation Clause.

      o   Statements made to a police officer in response to the officer’s general questions upon arriving at the scene are non-testimonial in nature because the police officer is seeking to respond to the emergency rather than gather information.

      o   A defendant forfeits Confrontation Clause objections to the admission of a declarant’s testimony when the defendant participates in a conspiracy and the death or unavailability of the witness is in furtherance of the conspiracy and is reasonably foreseeable as a natural consequence of the conspiracy.

      o   Government’s burden of proof for government’s establishment of forfeiture by wrongdoing is preponderance of the evidence.

  H. Definitions of Domestic Violence Crimes Under Federal Laws

      o   The Court determined that the mens rea of recklessness qualifies as a "state misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9), which prohibits possession of firearms and ammunition by individuals who have been previously convicted of a state misdemeanor crime of domestic violence including the “use of force.” 

      o   Defendant’s state conviction for misdemeanor domestic assault qualifies as a "misdemeanor crime of domestic violence" for purposes of prohibition on possession of a firearm under 18 U.S.C. § 922(g)(9).

      o   Federal firearms DV statute’s "use of force" requirement is satisfied by the degree of force that supports a common-law battery conviction — including offensive touching.

      o   Defendant's attempted-battery assault conviction for slapping the defendant’s daughter in the face was not a “crime of violence” that rendered the defendant deportable under federal law 8 U.S.C. Section 1227 (a)(2)(e)(i)(2012), so as to entitle the defendant to jury trial

      o   Attempted-battery assault convictions under DC law do not require force or violence rising to the level required under federal law 18 U.S.C. Section 16(a), defining “crime of violence.”

 

VII. Government Benefits and Domestic Violence

   A. Unemployment Benefits

      o   The courts should apply a broad interpretation to D.C. Code § 51-131 to determine whether unemployment was terminated “due to domestic violence” to allow for the remedial statutory purpose and broad coverage of claimants

      o   In determining whether a claimant's proof shows evidence of an “intrafamily offense(s),” a reviewing court must consider the “entire mosaic” of the claimant's history of abuse, not just the incidents directly leading to her separation from employment.

      o   The administrative law judge should (1) interpret “domestic violence” broadly as an “intrafamily offense”; and (2) interpret the causation standard broadly such that the claimant need only show that domestic violence played a “substantial factor” (rather than the “sole cause” or “strict causal nexus”) in the separation from employment.

      o   Here, a claimant who was terminated from her employment after admitting her former boyfriend, who had a history of abusing her, onto the premises of her employer on three occasions in  violation of the company policy, is entitled to unemployment benefits. [1] There is a third kind of assault: non-violent sexual touching. The elements of a sexual touching assault, each of which the government must prove beyond a reasonable doubt, are that: (1) [defendant] sexually touched [victim]; (2) S/he did so voluntarily, on purpose and not by mistake or accident; and (3) [Victim] did not consent to being touched by [defendant] in that manner. See 1-IV CRIMINAL JURY            INSTRUCTIONS FOR DC INSTRUCTION 4.100 (2017).

 

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