Criminal Law Blog

Convictions set-aside under the Youth Rehabilitation Act may still trigger repeat-offender sentencing enhancement

 

(Singer/Songwriter Richard Marx of “Repeat Offender” Fame)

Wade v. United States (decided November 16, 2017)

Players:
Associate Judges Fisher, Thompson, McLeese. Opinion by Judge McLeese. Trial Judge: Lynn Leibovitz. April E. Fearnley for Appellant.

Facts: On October 8, 2015, police received an anonymous 911 call. The caller reported seeing a man with a gun in his waist in the 1200 block of 7th Street NW. This man was walking with another man. Police responded and saw two men matching the descriptions about a block away from where the caller had said. The defendant, Mr. Wade, matched the description of the man who was reported to have had a gun. The officers pulled their police car alongside the two men, who both began running. Officer Brown gave chase and briefly lost site of Mr. Wade as he ran around a shed. Shortly after, he regained sight of Mr. Wade and apprehended him. The officer conducted a pat down but did not find a gun.

However, a civilian eyewitness reported seeing a man matching Mr. Wade’s description toss a gun near the same shed behind a dumpster. (At trial, the civilian said he did not actually see the gun tossed, which he had testified to at the suppression hearing, but only that he saw the man run past with someone else and then saw a gun in the air). An officer looked in the area and saw a gun in plain view. Police then conducted a showup and the witness identified Mr. Wade as the person who threw the gun. Police placed Mr. Wade under arrest and a search incident to arrest recovered six .357 caliber bullets. Mr. Wade was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1:  Did police have sufficient reasonable suspicion to support the initial stop?

Holding: Yes. The Court cited the fact Mr. Wade was observed near the location the 911 caller had said and matched the description from the caller (black male, navy blue shirt, tan hat, blue jeans, walking with another black male wearing a light green shirt). Plus, when the officers arrived, Mr. Wade fled and was observed placing his hand near his waist, which was where the 911 caller said he saw the gun. The Court concluded such facts were sufficient for reasonable suspicion.

Issue 2: Was the showup identification procedure unduly suggestive?

Holding: No. The Court noted that all showup identifications involve some suggestivity but that “something more egregious than mere custodial status is required to establish” impermissible suggestivity. Here, Mr. Wade was in handcuffs, with an officer on either side of him and standing between two police cars. The Court concluded that did not rise to the level of impermissible suggestivity. The Court stated that the fact one of the officers on the scene had a “passing familiarity” with the eyewitness did not render the identification procedure unduly suggestive.

Issue 3: Was the evidence sufficient to establish that Mr. Wade possessed the gun?

Holding: Yes. Mr. Wade cited to the eyewitness’s testimony at trial where he said he did not actually see Mr. Wade throw the gun and saw two people run behind the shed to support his argument that the evidence was insufficient to show he ever had the recovered gun. The Court disagreed. The Court cited the 911 call and that Mr. Wade matched the description of the person observed with a gun, that he fled when police arrived and was observed with his hand in his waistband area, the witness said he saw a gun tossed behind a dumpster at the same time Mr. Wade ran behind the dumpster, and Mr. Wade possessed bullets that matched the caliber of the gun recovered.

Issue 4: Did the trial court err in imposing a three-year mandatory minimum sentence on the count of unlawful possession of a firearm?

Holding: No. UPF prohibits possession of a firearm by persons with a prior conviction punishable by more than one year and provides for a mandatory minimum sentence for anyone who violates the statute and has previously been convicted of a crime of violence other than conspiracy. Mr. Wade had a prior conviction for attempted robbery, which is punishable by more than one year and which meets the definition of crime of violence. However, he contended that his conviction could not be used to impose the mandatory minimum because it had been set aside under the Youth Rehabilitation Act (YRA). The Court disagreed. The Court first cited the YRA itself, which explicitly authorizes a set-aside conviction of attempted robbery to be used to support a conviction. Mr. Wade tried to draw a distinction between using a set-aside conviction to provided a needed element for a conviction as opposed to using it to impose a mandatory sentence. Though the Court agreed that the YRA was silent as to that question, it did not agree that the YRA supported such a distinction. The Court believed that the legislative history of the YRA supported its conclusion that no such distinction exists. Accordingly, the trial court correctly determined that Mr. Wade was subject to a three-year mandatory minimum for his UPF conviction.

Of Note: 

  • The Court did not address Mr. Wade’s argument that police exceeded the scope of a lawful investigative detention by detaining him for between forty-nine and fifty-three minutes before conducting the showup identification because the Court concluded that police had probable cause to arrest when they recovered the gun in the area where the witness had said it had been thrown.
  • The Court noted that this case had a “procedural wrinkle” of whether it can rely on evidence that was developed at trial that contradicted evidence at the suppression hearing to reverse a decision of the trial court when the losing party failed to renew the motion to suppress based on the new evidence at trial. The Court concluded that in this situation the trial evidence would not have changed the outcome of its decision on the suppression hearing, but attorneys should remember to renew any suppression if additional evidence is developed at trial that could alter a trial court’s pre-trial decision. BM

Read the full opinion here.