Kelly v. United States ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-481
TERELL A. KELLY, APPELLANT,
v.
UNITED STATES, APPELLEE.
On Appeal from the Superior Court
of the District of Columbia
(CF3-16351-18)
(Hon. J. Michael Ryan, Trial Judge)
(Argued April 27, 2022 Decided September 1, 2022)
Mindy Daniels for appellant.
William Collins, Public Defender Service, with whom Samia Fam, Public
Defender Service, was on the briefs, as amicus curiae supporting appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Matthew M.
Graves, United States Attorney, Timothy J. Shea, United States Attorney at the time
the opening brief was filed, and Chrisellen R. Kolb, Elizabeth Trosman, Suzanne
Grealy Curt, Bryan Han, and T. Patrick Martin, Assistant United States Attorneys,
were on the briefs, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and FISHER, Senior Judge.
MCLEESE, Associate Judge: Appellant Terell A. Kelly was convicted of
robbery. Mr. Kelly argues that (1) the trial court erroneously denied Mr. Kelly’s
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motion to suppress evidence obtained as a result of an unlawful search; (2) the
evidence was insufficient to support the conviction; and (3) the trial court
erroneously refused to permit the jury to decide whether the robbery occurred in the
District of Columbia. We affirm.
I. Factual Background
In brief, the evidence at trial was as follows. Jordan Tyler got on a Metro train
at the Southern Avenue Metro Station in Maryland. Mr. Tyler took a window seat.
Soon thereafter, Mr. Kelly sat next to Mr. Tyler and asked, “You know me?” Mr.
Tyler, who did not know Mr. Kelly, responded, “no bro.” Mr. Kelly said, “I’m not
your bro,” and asked for Mr. Tyler’s cell phone. Mr. Tyler noticed that Mr. Kelly
had a gun under his leg. Mr. Tyler handed his cell phone to Mr. Kelly. Mr. Kelly
asked Mr. Tyler for other items, including his headphones, his book bag, and his
shoes, which were white and blue Jordan Retro 8s with pink laces. Mr. Tyler handed
over those items. Mr. Tyler did not ask for help, because he did not “want to make
any movements that would cost [his] life.” Mr. Tyler did not willingly give Mr.
Kelly his possessions. This encounter took place while the train was moving from
the Southern Avenue Metro Station in Maryland to the Congress Heights Metro
Station in the District of Columbia.
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Metro surveillance cameras captured the incident, and the jury viewed video
footage of the incident. A weapon was not visible in the video footage.
Mr. Kelly and his girlfriend Jamilla Salahuddin got off the train at the
Congress Heights Metro Station. Mr. Kelly was carrying a backpack that Ms.
Salahuddin did not recognize. While Mr. Kelly and Ms. Salahuddin were riding a
bus home, Mr. Kelly opened the backpack and gave Mr. Tyler’s shoes to Ms.
Salahuddin. Mr. Kelly then threw the backpack into a trash can.
After the incident was reported, a Metro Transit Police detective used video
surveillance footage to determine when and where Mr. Kelly entered the Metro
system before the incident and left the system after the incident. Based on that
information, the detective determined the serial number of the SmarTrip card Mr.
Kelly used to pay his fare. The detective set up an email alert so that the police
would be notified each time that SmarTrip card was used.
The day after the incident, police used an email alert to locate Mr. Kelly and
Ms. Salahuddin at the Gallery Place Metro Station. Ms. Salahuddin was wearing
Mr. Tyler’s shoes. An officer seized the shoes and took photos of Mr. Kelly and
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Ms. Salahuddin, but the officer did not make an arrest at that time. The police
arrested Mr. Kelly a few days later. Mr. Kelly had the SmarTrip card on his person
when he was arrested.
A jury found Mr. Kelly guilty of robbery but acquitted him of weapon
offenses.
II. Motion to Suppress Evidence
Mr. Kelly argues that the police unlawfully searched and tracked Mr. Kelly’s
Metro SmarTrip card. We disagree.
A. Procedural and Factual Background
Mr. Kelly filed a pretrial motion to suppress evidence, arguing that the police
had unlawfully searched and tracked his Metro SmarTrip card. The United States
argued that the police’s use of information about Mr. Kelly’s SmarTrip card did not
constitute a search within the meaning of the Fourth Amendment. See U.S. Const.
Amend. IV (prohibiting “unreasonable searches and seizures”).
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The trial court held an evidentiary hearing on the motion. In brief, the
evidence at the hearing was as follows. A SmarTrip card transmits information
about the time and location of entry and exit from stations. The card will transmit
that information only when the card is within two inches of a card reader. Otherwise,
the card does not transmit information. WMATA uses information from SmarTrip
cards to keep track of customers’ accounts. SmarTrip cards state that cardholders
must produce the card if requested by an authorized employee or the police.
WMATA keeps a “tracking list” for SmarTrip cards of interest to WMATA’s
investigative unit. If a card is placed on that list, then WMATA personnel are
automatically notified of the date, time, and station of use. That information is
transmitted every thirty minutes, when WMATA’s mainframe computer sends out
email alerts. Mr. Kelly’s SmarTrip card was put on this list on the date of the
incident, and information from the tracking list was used to locate Mr. Kelly and
stop him the next day at the Gallery Place Metro Station. In general, card numbers
stay on the tracking list until the person holding the card is identified, after which
the card number is removed from the tracking list within twelve hours.
The trial court denied the motion to suppress, concluding that the police’s use
of information about Mr. Kelly’s SmarTrip card was not a search.
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B. Analysis
“Government conduct is a search within the meaning of the Fourth
Amendment if it invades an actual (subjective) expectation of privacy that society is
prepared to recognize as reasonable.” Jones v. United States, 168 A.3d 703, 711
(D.C. 2017) (ellipses and internal quotation marks omitted). We hold that the police
conduct in this case was not a search.
In this case, the police used information generated and maintained by Metro
for business purposes, and the police’s use of that information provided relatively
limited information: for a period of two days, where and when Mr. Kelly entered
and left Metro stations. Decisions of the Supreme Court and other courts indicate
that such conduct does not amount to a search, because such conduct does not invade
a reasonable expectation of privacy. The most directly relevant case is
Commonwealth v. Henley, 171 N.E.3d 1085 (Mass. 2021). In Henley, the police
physically seized a suspect’s “CharlieCard” (a card, similar to a SmarTrip card,
issued by the Massachusetts Bay Transportation Authority (MBTA)). Id. at 1095
n.2, 1101. The police then used the number on the card to determine, from records
kept by the MBTA, the suspect’s use of the MBTA system on two specific dates.
Id. at 1101-02, 1105-06. The court held that, given the short time period and limited
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data involved, the police’s use of MBTA records did not amount to a search. Id. at
1106-07.
In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court of the
United States held that it was not a search (1) to place a beeper inside a container
that was transported by car; and (2) over the course of a trip from Minnesota to
Wisconsin, to use the beeper to track the travels of the container primarily on public
roads but also onto private property. Id. at 277-78, 281-82. The Court explained
that a “person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in [the person’s] movements from one place to another.” Id.
at 281. The Court noted, however, that if such surveillance expanded into “dragnet
type law enforcement practices . . . different constitutional principles may be
applicable.” Id. at 284.
In our view, the present case fits comfortably with Henley and Knotts. The
police apparently received very limited information about Mr. Kelly’s SmarTrip
card, over a period of two days. During that time, the police received email
notifications informing the police when Mr. Kelly used the card to enter or leave a
Metro station. The notifications simply provided sporadic information about Mr.
Kelly’s location in a public place at particular moments. They did not permit Mr.
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Kelly’s precise movements to be continuously monitored in real time. We therefore
hold that the police’s use of the information at issue in this case did not amount to a
search.
We are not persuaded by Mr. Kelly’s reliance on Carpenter v. United States,
138 S. Ct. 2206 (2018), and Jones, 168 A.3d at 711-12. In Carpenter, the Supreme
Court held that it was a search for the police to access seven days’ worth of a
suspect’s cell-phone location information. 138 S. Ct. at 2213-20, 2217 n.3. As the
Supreme Court explained, such information “tracks nearly exactly the movements”
of the cell phone’s owner. Id. at 2218. Such data thereby “provides an intimate
window into a person’s life, revealing not only [the person’s] particular movements,
but through them [the person’s] familial, political, professional, religious, and sexual
associations.” Id. at 2217 (internal quotation marks omitted). In concluding that a
search occurred in Carpenter, the Supreme Court explicitly distinguished cell-phone
location information from the more limited information available through the
“rudimentary tracking” that had occurred in Knotts. Carpenter, 138 S. Ct. at 2215,
2219-20. We view this case as far more comparable to Knotts than to Carpenter.
Jones involved the use of a cell-site simulator. 168 A.3d at 708-10. That
device can identify the signal of a particular cell phone, mimic a cell-phone tower,
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cause the cell phone to communicate with the simulator, and thereby determine the
precise location of the cell phone. Id. at 709-10. This court held that the use of such
a device was a Fourth Amendment search, for several reasons. Id. at 711-17. First,
locating and tracking the movements of people’s cell phones “has the substantial
potential to expose the owner’s intimate personal information.” Id. at 711. Second,
cell-site simulators allow the police “to discover [a] person’s precise location
remotely and at will.” Id. at 713. Third, cell-site simulators obtain information by
“exploit[ing] a security flaw” of cell phones. Id. at 714. The court in Jones explicitly
noted, however, that “certain forms of tracking do not invade a reasonable
expectation of privacy.” Id. at 713. The court specifically cited Knotts for the
proposition that “use of an electronic device to track a suspect’s movements in public
spaces did not invade a reasonable expectation of privacy.” Id. Essentially for the
reasons we have already stated, we conclude that the limited and sporadic
information at issue in this case is far more comparable to the information at issue
in Knotts than to the cell-site simulator information at issue in Jones.
In sum, we hold that the police’s use of information about Mr. Kelly’s
SmarTrip card did not amount to a search within the meaning of the Fourth
Amendment. We therefore uphold the trial court’s denial of the motion to suppress
evidence.
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III. Sufficiency of the Evidence
Mr. Kelly argues that the evidence was insufficient to prove beyond a
reasonable doubt that he used force or violence to take property by putting Mr. Tyler
in fear. We hold that the evidence was sufficient on this point.
“When assessing the sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict, giving full play to the right of the fact-finder to
determine credibility, weigh the evidence, and draw justifiable inferences of fact.”
Roberts v. United States, 216 A.3d 870, 882 (D.C. 2019) (internal quotation marks
omitted). “The evidence is sufficient if, after viewing it in the light most favorable
to the verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted).
Robbery can be committed by putting the victim in fear. See D.C. Code
§ 22-2801 (“Whoever by force or violence, whether against resistance or by sudden
or stealthy seizure or snatching, or by putting in fear, shall take from the person or
immediate actual possession of another anything of value, is guilty of
robbery . . . .”). “The test is not whether the victim experienced actual fear or had a
subjective perception of fear, but whether the assailant acted in such a manner as
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would under the circumstances portend an immediate threat of danger to a person of
reasonable sensibility.” Williams v. United States, 113 A.3d 554, 561 (D.C. 2015)
(ellipses and internal quotation marks omitted).
Mr. Tyler testified that someone he did not know and who was armed with a
gun sat next to him and started asking for his belongings, including valuable items
such as a cell phone. Mr. Tyler testified that he handed over his belongings
unwillingly and that he did not ask for help because he was afraid to make
movements that might cost him his life. That testimony amply supported the robbery
verdict. See, e.g., Bean v. United States, 409 A.2d 1064, 1065, 1067 (D.C. 1979)
(evidence that defendant pointed gun at victim and demanded money “clearly
sufficed” to support robbery conviction).
We are not persuaded by Mr. Kelly’s arguments to the contrary. First, Mr.
Kelly points out that the jury acquitted him of all weapon charges. Under our case
law, however, that is irrelevant to whether the evidence was sufficient to support the
robbery conviction. See, e.g., Jones v. United States, 716 A.2d 160, 164 (D.C. 1998)
(“So long as the evidence was sufficient to support the conviction in question, the
fact that the jury acquitted the appellant of certain related counts does not invalidate
the conviction.”); Steadman v. United States, 358 A.2d 329, 332 (D.C. 1976) (“The
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law correctly recognizes that it must make room for jurors’ negotiation and
compromise during deliberation. Therefore, a jury verdict need not be logically
consistent. The only question for review is whether the evidence was sufficient to
support the conviction under the guilty verdict.”).
Second, Mr. Kelly relies on Williams, 113 A.3d at 555-64, where we held that
there was insufficient evidence that the complainant had been put in fear. In our
view, this case is quite different from Williams. In Williams, the defendants walked
toward the complainant at night; the complainant thought that they might have had
weapons but did not see any weapons; the complainant testified that the defendants
“did not threaten him or make him afraid”; and the defendants did not explicitly
demand the complainant’s wallet or money, instead saying only “what, what, what.”
Id. at 556, 561-63. In contrast, Mr. Tyler testified that Mr. Kelly had a gun, that Mr.
Kelly asked for specific valuable items, and that Mr. Tyler feared for his life and did
not give up the items willingly.
Finally, Mr. Kelly points out that Mr. Tyler was impeached in various respects
at trial. Mr. Tyler’s testimony was also corroborated in various respects, however,
including by surveillance video. In any event, we are required to give “full play to
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the right of the fact-finder to determine credibility.” Roberts, 216 A.3d at 882. We
see no basis to overturn the jury’s verdict on this ground.
IV. Geographic Jurisdiction
In the trial court, Mr. Kelly argued that the trial court lacked jurisdiction
because the robbery occurred in Maryland rather than the District of Columbia.
Relatedly, Mr. Kelly argued that the issue of jurisdiction should be decided by the
jury rather than the trial court. The trial court disagreed on both points. Mr. Kelly
renews his arguments in this court. We need not resolve those arguments, because
we hold that any error by the trial court was obviously harmless beyond a reasonable
doubt.
It is undisputed that the trial court had jurisdiction if the robbery involved a
criminal act committed in the District of Columbia. See, e.g., Tornero v. United
States, 161 A.3d 675, 687-88 (D.C. 2017) (holding that Superior Court has
jurisdiction over criminal acts committed in District of Columbia). Even if we
assume that the robbery took place entirely in Maryland, however, the trial court
plainly had jurisdiction in this case. There is no dispute that Mr. Kelly got off the
Metro train in the District of Columbia, carrying with him some of Mr. Tyler’s
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belongings. If the robbery occurred in Maryland, the District of Columbia had
jurisdiction under D.C. Code § 22-1808, which provides:
Any person who by the commission outside of the District
of Columbia of any act which, if committed within the
District of Columbia, would be a criminal offense under
the laws of said District, thereby obtains any property . . . ,
and . . . who brings any such property . . . into said
District, shall, upon conviction, be punished in the same
manner as if said act had been committed wholly within
said District.
Mr. Kelly does not challenge the validity of § 22-1808, and he has not
provided any basis upon which jurisdiction could properly be found lacking given
the jury’s finding of guilt and the undisputed facts of the case. We therefore
conclude that the District of Columbia had jurisdiction over the robbery charge in
this case.
Mr. Kelly argues, however, that the jurisdictional issue should have been
submitted to the jury. In support of that argument, Mr. Kelly relies on a line of cases
including Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (defendants have
constitutional right to jury determination “of every fact necessary to constitute the
crime with which [they are] charged”) (internal quotation marks omitted). The
United States argues in response that Apprendi is not applicable to the jurisdictional
issue in this case, relying among other things on this court’s decision in Adair v.
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United States, 391 A.2d 288, 290 (D.C. 1978) (issue of geographic jurisdiction was
properly decided by court rather than jury). We conclude that any error in failing to
submit the issue of geographic jurisdiction to the jury was obviously harmless
beyond a reasonable doubt.
We assume for current purposes, without deciding, that the issue of
geographic jurisdiction should have been treated as, in effect, an element of the
robbery offense, so that Mr. Kelly had a constitutional right to have the jury decide
that issue. The failure to instruct the jury on an essential element, however, is
harmless if “it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15 (1999)
(internal quotation marks omitted). The jury in this case found Mr. Kelly guilty of
committing the robbery. As we have explained, the conclusion that the Superior
Court had geographic jurisdiction in this case follows as a matter of law from that
verdict and facts that were neither disputed nor reasonably disputable: either the
robbery occurred in the District or the robbery occurred in Maryland and Mr. Kelly
brought the proceeds of the robbery into the District. We therefore hold that the
failure to submit the issue of geographic jurisdiction to the jury was harmless beyond
a reasonable doubt.
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The United States did not initially argue that any error was harmless, instead
addressing that issue only after this court directed supplemental briefing. “[I]t is
only in the rare circumstance in which harmlessness is obvious that we are prepared
to find an error harmless notwithstanding the government’s failure to make a timely
claim of harmlessness.” Randolph v. United States, 882 A.2d 210, 226 (D.C. 2005).
For the reasons we have stated, we conclude that any error in failing to submit the
issue of geographic jurisdiction to the jury was obviously harmless beyond a
reasonable doubt.
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.