In re D.M.

254 A.3d 398

IN RE D.M., Appellant.

No. 20-FS-179

District of Columbia Court of Appeals.

Argued February 26, 2020

Decided February 27, 2020

Opinion issued May 4, 2021^*

Christen Romero Philips, Public Defender Service, for appellant.

John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Rosalyn Calbert Groce, Deputy Assistant Attorney General, were on the brief, for appellee.

Before Glickman and Easterly, Associate Judges, and Washington, Senior Judge.

Glickman, Associate Judge:

This appeal is from a February 21, 2020 order detaining D.M. pursuant to D.C. Code § 16-2310(a-1)(1)(B) (2020 Supp.) pending trial in his delinquency proceeding. After holding oral argument, we issued a Judgment on February 27, 2020, denying D.M.’s motion for summary reversal, granting the District's motion for summary affirmance, and affirming the detention order. The Judgment stated that "[b]ased on the record before us we cannot find that the trial court erred when [it] found that appellant had not rebutted the presumption of detention," and that "[a]n opinion setting forth the court's full reasoning will issue later." This is the promised opinion.

I.

D.M. was charged in a four-count petition with (1) Carrying a Pistol Without a License — Felony, in violation of D.C. Code § 22-4504(a)(1) ; (2) Possession of a Firearm without a Registration, in violation of D.C. Code § 7-2502.01 ; (3) Unlawful Possession of Ammunition, in violation of D.C. Code § 7-2506.01(a) ; and (4) Unlawful Possession of a Large-Capacity Ammunition Feeding Device¹ , in violation of D.C. Code § 7-2506.01(b). At the evidentiary hearing on the motion to detain D.M., the District presented testimony from Metropolitan Police Officer Marta Spajic, who incorporated by adoption her Gerstein² affidavit. Apart from cross-examining Officer Spajic, D.M. did not present evidence.

According to the District's evidence (which was basically undisputed, and which the court credited), at approximately 1:30 p.m. on February 20, 2020, Metropolitan Police Officer Charles Monk heard five gunshots coming from the 1300 block of Half Street Southwest. He then saw several juveniles running from that area, fleeing an individual who was chasing and shooting at them. After broadcasting a lookout for the shooter as a Black male dressed all in black, Officer Monk saw him (or someone who appeared to be him) in the Unit Block of O Street Southwest. When Officer Spajic drove around the corner, Officer Monk pointed the suspect out to her. At that point, the suspect took "unprovoked" flight. As stated in her Gerstein affidavit, Officer Spajic saw D.M., who matched the lookout description, run into the 1300 block of Half Street (between N and O Streets). Within one to two minutes of when Officer Monk first heard the gunshots, Officer Spajic and two other police officers stopped D.M. in front of 1330 Half Street. The officers retrieved a 9mm Glock semiautomatic handgun from D.M.’s pants. The weapon had a magazine and contained one bullet in the chamber and sixteen bullets in the magazine, which had a capacity of seventeen rounds. D.M., who was sixteen years old, was not legally able to register a firearm in the District of Columbia.

Based on this unrebutted evidence, the judge found by a substantial probability that D.M. had committed the charged offenses, triggering a statutory rebuttable presumption that his detention was required to protect others from significant harm. The judge asked whether the District relied on anything else in support of its request that D.M. was dangerous and needed to be detained, and counsel for the District cited, inter alia , D.M.’s prior consent decree in a case in which he was charged in July 2018 with possession of a controlled substance (PCP), and the fact that he smokes marijuana.³ The District's counsel also noted D.M.’s apparent connection to the scene of shooting just a minute or two before he was stopped, but stated that the District did not ask the judge to infer that D.M. was the person seen chasing and shooting at other juveniles.

The judge then turned to D.M.’s attorney and asked to hear the defense's argument as to D.M.’s dangerousness and the need for his detention. Counsel argued that the rebuttable presumption was overcome because D.M. "was not actually the person who was shooting,"⁴ and D.M.’s social history (as summarized in the Family Court Social Services Division Initial Intake Summary) indicated he could be "placed in the community with conditions ... that would insure both safety to the community and his return to court."⁵ The features of D.M.’s social history on which defense counsel relied in support of that argument were: (1) D.M. had no prior delinquency adjudications; (2) his only prior contact with the juvenile justice system was for "a totally different type of charge" and (counsel asserted) was "successfully resolved ... by consent decree," demonstrating that D.M. is "capable of following the rules of the Court"; and (3) comments in the Social Services report indicated (counsel asserted) "a good response to parental authority, that [D.M.] abides by his curfew, and that he is capable of following the rules at home." The judge inquired about the notation in the Social Services report that D.M. had been the subject of a habitual truancy referral on February 18, 2020. Counsel for the District explained that this was a referral to the Office of Attorney General because D.M. had "missed at least 15 days of school."⁶

The judge concluded that D.M. had not rebutted the statutory presumption that his detention was required to protect others from significant harm, and that detention was "the least restrictive setting" in which D.M. could be placed in light of his evident dangerousness. In reaching that conclusion, the judge emphasized that D.M. was carrying "a firearm with an extended clip with 17 rounds in it" in circumstances showing he posed a significant danger to others:

Whether or not [D.M.] was a shooter, he, according to the facts that were presented to me today was running from a shooting scene and running after others. And I don't know what his involvement was, I only know that this was not just hanging around on the street corner. This was fleeing from a shooting scene in circumstances that suggest a greater degree of danger to others, than merely hanging out with a gun in your pocket. The additional information that [D.M.] is not regularly going to school, is of concern. In addition, it's not like curfews or anything else would have prevented this, this was 1 o'clock in the afternoon.

II.

D.M.’s primary contention on appeal is that "even though a rebuttable presumption of detention applies" in this case,⁷ he must be released from detention because he successfully rebutted the presumption and the government failed to prove his dangerousness by clear and convincing evidence. D.M. also argues that the judge based her decision on a clearly erroneous factual finding that he was "chasing" other juveniles,⁸ and that the judge erred by limiting his cross-examination of Officer Spajic. For the following reasons, we concluded that these claims did not entitle D.M. to relief from the order of detention.

A.

A child alleged to be delinquent may be placed in detention pending a factfinding hearing when it "appears from available information" that detention is required "to protect the person or property of others from significant harm." D.C. Code § 16-2310(a)(1). Ordinarily, this determination is left to the informed discretion of the trial judge. But the statute further provides "[t]here shall be a rebuttable presumption that detention is required to protect the person or property of others if the judicial officer finds by a substantial probability" that the child committed CPWL or other specified dangerous offenses while armed with a pistol or other firearm.⁹ Id. § 16-2310(a-1)(1). As explained in the legislative history of the "Rebuttable Presumption to Detain Robbery and Handgun Violation Suspects Act of 2006," this presumption "requires the judicial officer to start from the position that the child meets this standard and leaves it to the child to rebut the presumption."¹⁰ See also Pope v. United States , 739 A.2d 819, 826 (D.C. 1999).¹¹

On appeal, D.M. concedes that the judge, crediting Officer Spajic's testimony, permissibly found by a substantial probability that he committed CPWL, thereby triggering the statutory rebuttable presumption that the judge was required to detain him. The issue is whether the judge erred in finding that D.M. did not rebut that presumption. To do that, D.M. needed to "present[ ] ‘proof in contradiction’ of it or ‘evidence against the fact presumed’ "¹² — evidence, in other words, that he did not pose a danger of significant harm to the persons or property of others, or that the danger he posed could be contained by means short of detention.

We conclude that D.M. did not present the necessary "proof" or "evidence" to rebut the presumption. The factors he relied on did not, singly or in combination, amount to such proof. The evidence that D.M. was not the shooter consisted solely of the fact that his Glock pistol and its large capacity ammunition feeding device were fully loaded with a total of seventeen bullets when the police stopped him shortly after the shooting. That a sixteen-year-old was carrying such armament around with him was proof of his dangerousness, not the opposite — even if he was not the shooter in this instance (and even if he was not "chasing" other juveniles, a matter we speak to infra ).

The social factors on which D.M. relied likewise did not rebut the presumption of his dangerousness or provide reason to believe he did not need to be detained for the protection of others. That D.M., at the young age of sixteen, did not have a history of prior delinquency adjudications, but had been arrested "only"...