Scott J. Myerson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-CM-1642

SCOTT J. MYERSON, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CMD-5142-12)

(Hon. Juliet J. McKenna, Trial Judge)

(Submitted February 20, 2014 Decided August 28, 2014)

Jeffrey L. Light was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, Suzanne
Grealy Curt, Damien Diggs, and Peter S. Smith, Assistant United States Attorneys,
were on the brief for appellee.

Before BLACKBURNE-RIGSBY, Associate Judge, and PRYOR and KING, Senior
Judges.
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BLACKBURNE-RIGSBY, Associate Judge: Appellant Scott Myerson was

convicted of misdemeanor assault on a police officer (“APO”).1 On appeal,

appellant argues that the criminal information should have been dismissed because:

(1) the APO statute, as applied to him, exceeds the Council of the District of

Columbia‟s (“Council”) authority under the Home Rule Act;2 and (2) the

government‟s failure to timely present a witness at trial violated his Sixth

Amendment rights.3 We affirm.

1
D.C. Code § 22-405 (b) (2012 Repl.) (making it a misdemeanor to,
“without justifiable and excusable cause, assault[], resist[], oppose[], impede[],
intimidate[], or interfere[] with a law enforcement officer on account of, or while
that law enforcement officer is engaged in the performance of his or her official
duties”).
2
D.C. Code § 1-206.02 (a)(3) (2012 Repl.).
3
Appellant also argues that the trial court abused its discretion by refusing
to admit a police report of an eyewitness statement under the “residual exception”
to the hearsay rule. This claim can be dismissed summarily because we do not
recognize the residual exception and, even if we did and applied it to this police
report, the report would still be inadmissible as double hearsay. See Evans-Reid v.
District of Columbia, 930 A.2d 930, 944 (D.C. 2007) (“Statements in a police
report which are based on what the officer was told by others are just as much
hearsay as if stated on the witness stand by the officer himself.” (citation omitted)).
 3

I. Factual Background

On March 25, 2012, at approximately 3:00 p.m., United States Park Police

Officers Michael Blake and Carl Hiott were effectuating the arrest of a pedicab4

driver for refusing to move his pedicab from a handicapped parking space, located

on the 1000 block of Madison Drive, Northwest, next to the National Capitol Mall,

when appellant rode his own pedicab to the scene, grabbed the other pedicab by the

handlebar, and began towing it away. The officers ordered appellant to release the

other driver‟s pedicab and leave the scene. Appellant released the pedicab but

confronted the officers and “began arguing” with Officer Blake. Officer Blake

instructed appellant to “move along and leave the area” several times, but each

time appellant parked his pedicab in a no parking zone on Madison Drive.

Officer Blake informed him that he was being issued a “notice of

infraction,” which caused appellant to become “very agitated” and “scream[] at the

top of his lungs.” Appellant also “pulled out his cell phone and held it in front of

[Officer Blake‟s] face.” Officer Blake ordered appellant “to put his phone

4
A “pedicab” is defined as “a tricycle with a 2-seat passenger compartment
covered by a usually folding top and a separate seat for a driver who pedals.”
Pedicab Definition, Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/pedicab (last visited July 9, 2014).
 4

away[,]” but appellant refused to comply. As a result, Officer Blake told appellant

that he was under arrest for failing to obey a lawful order and to put his hands

behind his back.

Officer Blake placed appellant‟s left hand behind his back, while Officer

Hiott did the same with his right hand. As Officer Blake placed handcuffs on

appellant‟s left wrist, but before cuffing his right wrist, appellant “began resisting,

and aggressively pulled his right arm free.” In response, Officer Blake forced

appellant to the ground, and placed the handcuff on his right wrist. Officer Blake

injured his knee as a result of this scuffle, which he later had treated at a hospital.

After the arrest, the officers were approached by James Fritts, a visiting police

officer from Wilson Borough, Pennsylvania, who claimed to have seen the events

and voluntarily gave the officers his statement.

Appellant was charged by criminal information on March 26, 2012. Trial

was originally set for June 1, 2012. On May 3, 2012, appellant filed an application

with the trial court to subpoena Fritts, which was granted on May 11. However,

Fritts “refused to talk to [appellant‟s counsel] . . . [and was] only willing to talk to

the [prosecution.]” When appellant asked the government for Fritts‟ address to

serve his subpoena, the government refused to provide it, but expressed its
 5

intention to subpoena Fritts as a government witness. Relying on this

representation, appellant no longer pursued his own subpoena. Appellant did not

notify the trial court of this matter.

Prior to the trial date, appellant moved to dismiss the information, see Super.

Ct. Crim. R. 12, arguing that the APO charge, as applied to him, exceeded the

Council‟s authority under the Home Rule Act, because he was arrested by federal

officers on federal park land. At a status conference on May 24, 2012, the trial

court denied the motion, finding “no basis” to find the APO statute violative of the

Home Rule Act. Additionally, the trial court issued a continuance so that the

parties could respond to the court‟s request for additional briefing on one of

appellant‟s discovery requests.5 Appellant asserted his speedy trial rights and

requested the case not be continued, but the trial court overruled the objection,

considering it a joint continuance since it was issued to allow both parties an

opportunity to respond to appellant‟s discovery request, and a new trial date was

set.6

5
The issue upon which the court asked for further briefing is not relevant on
appeal.
6
The trial date was initially rescheduled for July 26, 2012, but the
government requested an additional continuance to procure certain relevant
evidence. Appellant again objected, asserting his Sixth Amendment speedy trial
(continued. . .)
 6

Prior to the new trial date, the case was assigned to a new prosecutor, who

did not present Fritts as a witness on the day of trial. Appellant alleged that this

amounted to a violation of his Sixth Amendment right to compel witnesses to

appear in his defense. The trial court took a brief recess to allow the prosecutor to

contact Fritts and discuss the matter further. Upon reconvening, the prosecutor

notified the trial court that at some point before he was assigned the case, his

predecessor contacted Fritts to let him know that his appearance would not be

necessary. While he noted that Fritts would be “a strong witness” for the

government, the prosecutor expressed his willingness to agree to a continuance to

produce Fritts per appellant‟s request. Appellant rejected the offer for a

continuance, once again asserting his speedy trial right, and moved for either

dismissal of the charge or a missing-witness instruction. The trial court denied the

motion to dismiss, noting that (1) it was ultimately appellant‟s responsibility to

ensure the appearance of his own witnesses, (2) appellant had not confirmed that

Fritts would be present when it learned that a new prosecutor had been assigned to

the case, and (3) appellant had not notified the trial court of any of his difficulties

in executing the subpoena, or that he was relying on the government to produce

Fritts. The trial court also denied his alternative request for a missing-witness

(. . .continued)
right. The trial court overruled the objection and this time rescheduled the trial for
September 19, 2012.
 7

instruction, finding that Fritts was not “unavailable given the representation that

[the prosecutor] has just made about his willingness to make efforts to secure

[Fritts‟] presence, and that, as a resident of Pennsylvania, Fritts was not „peculiarly

within the control of the Government so that [appellant] would have been unable to

secure [his] presence.‟” Appellant was subsequently found guilty after a bench

trial and this appeal followed.

II. Discussion

A. APO Statute

On appeal, appellant first argues that the charge of misdemeanor APO

violated the Home Rule Act because, since this case involved United States Park

Police officers, rather than the Metropolitan Police Department, the Council had no

legal authority to criminalize appellant‟s conduct directed towards federal law

enforcement. In appellant‟s view, the charge is invalid as applied to him because it

would infringe on a restricted “federal function.” See D.C. Code § 1-206.02. We

disagree.
 8

“We apply a de novo standard of review to issues of statutory

interpretation.” Porter v. United States, 769 A.2d 143, 148 (D.C. 2001) (citation

omitted). The issue of whether the Council had the authority to criminalize

appellant‟s conduct directed towards federal police officers is a question of law.

See Farina v. United States, 622 A.2d 50, 61 (D.C. 1993).

Under the Home Rule Act, Congress delegated broad power to the Council

to enact local laws, subject to certain limitations. D.C. Code §§ 1-206.01 to -

206.04 (2012 Repl.). Specifically, “[t]he Council shall have no authority to pass

any act contrary to the provisions of this chapter except as specifically provided in

this chapter, or to . . . [e]nact any act, or enact any act to amend or repeal any Act

of Congress, which concerns the functions or property of the United States,” D.C.

Code § 1-206.02 (a)(3) (emphasis added), i.e., the Council cannot pass laws which

affect a “federal function.”

Our APO statute originates from a 1953 congressional act,7 which preceded

passage of the Home Rule Act in 1973. The Omnibus Public Safety Amendment

Act of 2006, enacted by the Council, replaced the original APO statute, which had

7
The District of Columbia Law Enforcement Act of 1953, Pub. L. No. 85, §
205, 67 Stat. 90, 95 (1953).
 9

only included a felony offense, with the current language that provides for both a

felony and a misdemeanor charge. D.C. Council, Report on Bill 16-247 at 2, 18

(Apr. 28, 2006). The 2006 amendment of the APO statute does not in and of itself

exceed the Council‟s authority because the Home Rule Act “explicitly permits the

Council to amend Titles 22-24, and thereby to enact new offenses and repeal old

ones.” In re Crawley, 978 A.2d 608, 618 (D.C. 2009); see also D.C. Code § 1-

206.02 (a)(9); McIntosh v. Washington, 395 A.2d 744, 754 (D.C. 1978).

Nor are we persuaded by appellant‟s broad interpretation that United States

Park Police necessarily carry out a “federal function” under the Home Rule Act.8

The term “federal function” is narrowly construed and only pertains to those

activities that explicitly impact the federal government‟s ability to operate. See

District of Columbia v. Greater Wash. Cent. Labor Council, AFL-CIO, 442 A.2d

110, 116 (D.C. 1982) (“We are not persuaded that Congress intended that

8
To the extent that appellant also argues that the location of the arrest, the
1000 block of Madison Drive, is “federal park land,” or that the officers were
“administrat[ing] . . . federal park areas[,]” the record shows, instead, that the
officers were enforcing District of Columbia traffic laws on a District of Columbia
street. We agree with the government that the facts of this case evidence a “purely
local matter.” The Council‟s police power is, at its core, the enforcement of
District of Columbia substantive criminal law, regardless of the location of the
arrest in question. See Farina, supra, 622 A.2d at 61 (affirming the convictions of
demonstrators under the D.C. Code for blocking streets on the Capitol grounds,
i.e., federal land policed by federal officers).
 10

performance of a local function by federal officials . . . would transform the

function into a „function of the United States‟ for the purpose of [§ 1-206.02].”

(emphasis added)). The enforcement of traffic laws on a local street is not a

“federal function.” See In re Crawley, supra, 978 A.2d at 610 (“The core and

primary purpose of the [Home Rule Act] was to relieve Congress of the burden of

legislating upon essentially local matters to the greatest extent possible, consistent

with constitutional mandates.” (citations, internal quotation marks, and alterations

omitted)); see also 18 DCMR § 2406 (authorizing the Director of Public Works to

place “signs prohibiting parking” on local streets).

Applying our narrow construction of “federal function” here, the United

States Park Police officers‟ were effectuating a local function, and enforcement of

the APO statute in relation to their performance of this local function did not

interfere with “the integrity of the federal domain as it relates to administration of

federal legislation having national implications.” Greater Wash. Cent. Labor

Council, AFL-CIO, supra, 442 A.2d at 116. Specifically, Officers Blake and Hiott

were enforcing District of Columbia traffic laws on a local street when they

encountered appellant, namely, directing traffic flow on Madison Drive. The

officers‟ instructions directing appellant to remove himself from the scene and to

refrain from parking in restricted areas also concerned the enforcement of District
 11

of Columbia traffic laws. See 18 DCMR § 2000.2 (“No person shall fail or refuse

to comply with any lawful order or direction of any police officer, police cadet, or

civilian crossing guard invested by law with authority to direct, control, or regulate

traffic.”). Because the officers were effectuating purely local laws at the time of

the incident, the APO charge did not violate the Home Rule Act. Accordingly, the

trial court did not err in denying the motion to dismiss on this basis.

B. Sixth Amendment Claims

Appellant next argues that the trial court‟s decision to deny his second

motion to dismiss and, alternatively, his request for a missing-witness instruction

on the day of trial violated his Sixth Amendment rights. Specifically, he contends

that “by failing to compel the government to produce Mr. Fritts at trial,” the trial

court forced him to choose between his right to a speedy trial and his right to

compulsory process for obtaining witnesses.9 To determine whether the trial court

erred, we examine whether either of appellant‟s asserted Sixth Amendment rights

were actually violated.

9
In support of this claim, appellant points to Simmons v. United States, 390
U.S. 377, 394 (1968), where the Supreme Court held that a criminal defendant‟s
pretrial suppression hearing testimony could not be used against him at trial, as it
would have put his Fourth Amendment right to be free from unreasonable search
and seizure at odds with his Fifth Amendment right to remain silent at trial.
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1. Speedy Trial Right

“It is axiomatic that „the right to a speedy trial is a fundamental

constitutional right‟” under the Sixth Amendment. Hartridge v. United States, 896

A.2d 198, 207 (D.C. 2006) (citation omitted). However, “[t]he right of a speedy

trial is necessarily relative.” Barker v. Wingo, 407 U.S. 514, 522 (1972) (citation

omitted). Speedy trial claims are reviewed against four factors: (1) the “[l]ength

of delay, [(2)] the reason for the delay, [(3)] the defendant‟s assertion of his right,

and [(4)] prejudice to the defendant.” Graves v. United States, 490 A.2d 1086,

1090-91 (D.C. 1984) (en banc), partially overruled on other grounds by United

States v. Loud Hawk, 474 U.S. 302 (1986) (quoting Barker, supra, 407 U.S. at

530). Viewing the record, a balancing of the Barker factors reveals no violation of

appellant‟s speedy trial rights.

In this case, the information against appellant was filed on March 26, 2012,

and the trial court held a hearing on May 24, 2012, to discuss appellant‟s first

motion to dismiss. Ward v. United States, 55 A.3d 840, 844 (D.C. 2012) (“[T]he

clock starts with „either a formal indictment or information . . .‟ and stops when

pre-trial motions hearings commence.” (emphasis added) (citations omitted)).

This constituted approximately two months, which is not generally considered an
 13

unreasonable “delay.” See, e.g., Hartridge, supra, 896 A.2d at 208 (“We regard a

delay of „a year or more‟ to be prima facie evidence of a speedy trial violation,

which creates a presumption of prejudice to the defendant.” (citation omitted));

Graves, supra, 490 A.2d at 1091 & n.7 (“While the 25-month delay was

substantial, . . . delays of roughly that length and longer have been countenanced

by this court when all factors were considered.”). Nor do any of the other factors

weigh in appellant‟s favor. Neither party disputes that appellant properly asserted

his right to a speedy trial. Further, the reasons proffered for the continuances

indicate that they either aided appellant in his discovery requests, or were granted

for otherwise “neutral” or “valid” reasons that do not support or weigh in favor of

appellant‟s speedy trial claim. See Diggs v. United States, 28 A.3d 585, 600 (D.C.

2011) (holding that delays for valid or neutral reasons such as difficulties with

scheduling and locating witnesses make a Sixth Amendment violation less likely).

Finally, appellant presents no evidence to support his claim of prejudice.

Hammond v. United States, 880 A.2d 1066, 1086 (D.C. 2005), abrogated in part

on other grounds by Davis v. Washington, 547 U.S. 813 (2006) (holding that

prejudice is assessed in terms of “(1) preventing oppressive pretrial incarceration;

(2) minimizing the anxiety and concern of the accused, and (3) limiting the

possibility that the defense will be impaired”) (citations omitted). Consequently,

there was no violation of appellant‟s speedy trial right.
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2. Compulsory Witness Right

We likewise see no violation of appellant‟s right to call witnesses. “Due

process and the Sixth Amendment right to compulsory process for obtaining

witnesses entitle[s] [a defendant] to call witnesses on his own behalf.” Collins v.

United States, 596 A.2d 489, 493 (D.C. 1991) (citations omitted). This right,

however, is not without limits, as “the Sixth Amendment does not by its terms

grant to a criminal defendant the right to secure the attendance and testimony of

any and all witnesses: it guarantees him „compulsory process for obtaining

witnesses in his favor.‟” United States v. Valenzuela-Bernal, 458 U.S. 858, 867

(1982) (emphasis added) (citing U.S. Const., amend. VI). To this end, appellant

“must at least make some plausible showing of how [a witness‟s] testimony would

have been both material and favorable to his defense.” Id. (emphasis added).

Appellant cannot show that Fritts‟ testimony would have been favorable,

which is fatal to his claim. The only fact that appellant points to in support of his

argument that Fritts‟ testimony might have been favorable was that Fritts‟ affidavit

left out any mention of appellant “resisting” arrest. However, this omission by

itself does not indicate a favorable witness and appellant‟s contrary contention is

speculative because Fritts‟ statement indicated that appellant was “creat[ing] a
 15

problem,” implying that appellant was nonetheless resisting law enforcement. See

Castellon v. United States, 864 A.2d 141, 161 (D.C. 2004) (finding no error in

determination not to compel testimony without showing that it was “material and

favorable” or could “affect[ ] the judgment of the trial of fact”) (citing Valenzuela-

Bernal, supra, 458 U.S. at 874). As appellant has not made any meaningful

showing of favorability, we need not consider materiality.

Because neither appellant‟s Sixth Amendment right to a speedy trial nor his

Sixth Amendment right to call witnesses was violated, appellant was not forced to

choose between conflicting Sixth Amendment rights. Accordingly, the trial court

did not err by denying appellant the relief that he sought.

III. Conclusion

Based on the foregoing reasons, we conclude that the trial court did not err

in failing to dismiss the criminal information because the charge of misdemeanor

APO did not violate the Home Rule Act, and that appellant‟s Sixth Amendment

rights were not violated by failing to either dismiss the case or issue a missing

witness instruction. Accordingly, appellant‟s conviction is
16

Affirmed.