Petty v. U.S.

317 A.3d 351

Jeffrey Hamilton PETTY, Appellant,

v.UNITED STATES, Appellee.

No. 22-CM-0642

District of Columbia Court of Appeals.

Argued November 8, 2023

Decided June 20, 2024

On Appeal from the Superior Court of the District of Columbia (2020-DVM-000680), (Hon. Kimberley Knowles, Trial Judge)

Russell A. Bikoff for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee.

Before Easterly and McLeese, Associate Judges, and Thompson, Senior Judge.

Opinion concurring in the judgment by Associate Judge Easterly at page 352.

Opinion concurring in the judgment by Associate Judge McLeese at pages 363-64.

Dissenting opinion by Senior Judge Thompson at pages 367-68.

Per Curiam:

Appellant Jeffrey Hamilton Petty appeals his conviction for misdemeanor assault, arguing that the trial court violated Mr. Petty’s constitutional right to the assistance of counsel. For the reasons stated in the opinions concurring in the judgment, the court vacates Mr. Petty’s conviction and remands the case for further proceedings.

So ordered.

Easterly, Associate Judge, concurring in the judgment:

The Supreme Court and our court have firmly established that "an order prohibiting a defendant from conferring with his counsel during an overnight (or other significant) interruption of his testimony is a denial of the defendant’s Sixth Amendment right to counsel that requires reversal without any showing of prejudice." Martin v. United States, 991 A.2d 791, 793 (D.C. 2010) (citing Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Perry v. Leeke, 488 U.S. 272, 278-80, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989)). In Mr. Petty’s case, the trial court prohibited him from conferring with his attorney about his testimony during a nineteen-and-a-half-hour overnight recess in the midst of his trial. Mr. Petty argues the trial court’s order violated his Sixth Amendment right to counsel and entitles him to reversal of his conviction for simple assault. The government agrees that the trial court’s overnight communication ban violated Mr. Petty’s Sixth Amendment rights. But the government contends that, because the trial court only barred Mr. Petty from discussing his testimony with counsel and granted counsel a recess the next day to speak with Mr. Petty, we should dismiss this violation as "trivial" and affirm.

My concurring colleague and I agree that the government’s argument is not consistent with this court’s decision in Martin and that reversal is thus required. I write separately to make clear that the government’s triviality argument is irreconcilable not only with Martin but also with the Supreme Court’s decisions in Geders and Perry and this court’s decision in Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (en banc). In addition, even if we were to write on a clean slate, the government’s argument would be unpersuasive. Requiring a showing of prejudice when a defendant is banned from consulting with his attorney, as the government effectively argues, would infringe on attorney-client privilege, erode the fundamental right to counsel, and undermine structural error precedent.

I. Factual and Procedural Background

After a dispute with a family member, Mr. Petty was charged with one count of simple assault in violation of D.C. Code § 22-404. On the second day of his bench trial, Mr. Petty took the stand. The government did not complete its cross-examination before the end of the day. Before adjourning, the trial court instructed Mr. Petty: "Do not discuss your testimony, including with your attorney[]." Mr. Petty immediately asked for clarification. The trial court responded "you are not permitted to talk to your attorney, to any attorney, your attorney, the Government attorney, no one … I’m telling you not to discuss your testimony." Defense counsel (Colin M. Dunham) then objected, stating "I do believe that my client has the right to discuss the case with me." The court was unmoved and again stated that Mr. Petty "can’t discuss his testimony …. You want to talk about the strategy for your case? Absolutely. I’m not saying don’t discuss the case, [just] not his testimony." Counsel told the court he would research this issue overnight.

At the start of court the next day, defense counsel renewed his objection. Counsel argued that he "believe[d] [a de- fendant’s] testimony is permitted to be discussed under the case law that we have," and the trial court’s order to the contrary had violated Mr. Petty’s right to counsel under the Sixth Amendment. Counsel further stated that he had been unsure about the scope of the trial court’s order and thus had been "chilled as to what [he] could discuss" with Mr. Petty. Counsel specified that the order had deterred him from discussing the case with his client in various ways, including discussing Mr. Petty’s testimony as part of conducting a model redirect examination, explaining how his answers to the prosecutor’s cross-examination questions fit into the government’s theory of the case and why redirect would be helpful, and discussing areas in which Mr. Petty had been confused by questions asked on cross-examination. Counsel also asserted that there were additional topics he had wished to discuss with Mr. Petty but because of "attorney-client privilege," he would "have to remain silent" as to the details.

At this juncture, defense counsel asked the court to grant a two-hour recess so that he could meet with Mr. Petty before he resumed his testimony. The trial court noted that "the order of yesterday is done," resisted granting defense counsel a recess, and only acquiesced after the prosecutor indicated that the United States did not object. (Later the court stated that it had "not ma[de] a ruling" on the request but had "just granted" it "because there was no objection" from the government.) After the recess, the trial court asked defense counsel if he had had "an opportunity to speak with [his] client … in a way that [he had] wished." Defense counsel responded that he had, and Mr. Petty resumed his testimony.

At the close of trial, the trial court found Mr. Petty guilty of simple assault, largely crediting testimony from the government’s witnesses and discrediting Mr. Petty’s testimony. Mr. Petty timely appealed his conviction.

II. Reversal Is Required Under The Supreme Court and This Court’s Case Law

Reversal in this case is required under the Supreme Court’s decisions in Geders and Perry and this court’s decisions in Jackson as well as Martin.

In Geders, the Supreme Court explained that a trial court’s order directing a defendant not to consult with his attorney during a seventeen-hour overnight recess in his trial violated his right to counsel under the Sixth Amendment. 425 U.S. at 91, 96 S.Ct. 1330; U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence."). Notably, the trial court in Mr. Geders’ case told his counsel at the time it imposed the overnight communication ban that, after redirect on the next day, it would order a recess to give counsel "all the time [he] need[ed] to talk to [his client] about strategies or anything else"; and, true to its promise, on the day following the overnight ban, the court allowed counsel to talk to Mr. Geders at the lunch recess. 425 U.S. at 82-85, 83 n.1, 96 S.Ct. 1330. Citing these facts, the government argued to the Supreme Court that Mr. Geders had not been prejudiced by the overnight ban. See Brief for the United States at 8-9, 23-25, Geders, 425 U.S. 80 (No. 74-5968), 1975 WL 173630. The Court, however, was unpersuaded.

The Court recognized that the Sixth Amendment guarantees more than a formalistic appointment of an attorney for trial; it provides a defendant with a full-bodied, functional right during trial to talk to one’s lawyer about anything related to the case, to ask questions, and to get ex- planations and clear-eyed feedback (if not reassurance) about the progress of trial. The Court made plain both that "a sustained barrier to communication between a defendant and his lawyer," such as an overnight ban on communication, violated that full-bodied functional right and that such violation was not amenable to a prejudice analysis. Geders, 425 U.S. at 91, 96 S.Ct. 1330.

As the Court in Geders explained, overnight recesses are primetime for attorneyclient communications:

[i]t is common practice during such recesses for an accused and counsel to discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.

Id. at 88, 96 S.Ct. 1330. The Court specifically acknowledged concerns about lawyers improperly Influencing their clients’ testimony. Id. at 89, 96 S.Ct. 1330. But it observed that prosecutors could expose such witness coaching on cross-examination and held that any conflict between such a concern and a "defendant’s right to consult with his attorney during a long overnight recess in the trial … must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel." Id. at 91, 96 S.Ct. 1330. The Court further held that an "order preventing [Mr. Geders] from consulting [with] his counsel ‘about anything’ during a 17-hour overnight recess" required reversal,...