In a decision handed down today, the D.C. Court of Appeals reversed the 2005 conviction of Kelvin Martin, saying that a D.C. Superior Court judge improperly ordered Martin not to talk to his lawyer during a weekend recess that interrupted the prosecutor's cross examination of Martin. His case will head back to D.C. Superior Court for a new trial.
Martin’s conviction arose out of a 2004 traffic stop. According to court documents, he and a friend, Robert Hawkins, were pulled over after U.S. Park Police Officer Ross Dykman spotted Hawkins drinking from a bottle in a paper bag. When the police officer tried to take the bag from Hawkins, Martin hit the gas, dragging Dykman along with the Suburban. Dykman drew his gun and fired into the vehicle, hitting Hawkins before falling off the vehicle. Martin and Hawkins were followed by a witness and later arrested.
Martin was charged with one count of aggravated assault while armed and one count of assaulting, resisting or interfering with a police officer with a dangerous weapon.
At trial, Martin argued that he and Hawkins thought Dykman was a carjacker and that they didn’t know he was a police officer, despite the fact that he was in uniform. Martin was being cross-examined on a Friday when D.C. Superior Court Judge Erik Christian ordered a recess until the following Monday. Christian directed Martin not to speak with anyone over the weekend.
Martin was later convicted on one count of assaulting a police officer.
In today’s opinion, the D.C. Court of Appeals determined that by ordering Martin not to speak with anyone, including his lawyer, Dehlia Aghadiuno of the D.C. Public Defender Service, Christian had violated Martin’s Sixth Amendment right to the assistance of counsel.
On appeal, Assistant U.S. Attorney Chrisellen Kolb argued that Christian’s order did not violate prior Supreme Court precedent because the order was narrowly tailored to forbid only discussion of Martin’s testimony.
The opinion, written by Judge Stephen Glickman and joined by Judges Inez Smith Reid and Katherine Oberly, said, “Even if that is so, the order still ‘went further than the law permits.’ ”
Kolb also argued on appeal that there was no evidence that Martin actually wanted to discuss his testimony with his lawyer because neither he nor Aghadiuno objected to the order when it was given. In effect, Martin had waived his Sixth Amendment rights. Citing a prior D.C. Court of Appeals decision, Glickman wrote in his opinion, “[A] valid waiver [of Sixth Amendment rights] cannot be presumed from a silent record….Thus, the burden is on the government to establish a valid waiver in this case, not on the appellant to disprove it.”
Glickman’s opinion said Christian’s order was “plain error” and entitled Martin to a new trial.
The opinion also addressed one other issue raised by Corrine Beckwith, a D.C. public defender who argued on behalf of Martin on appeal. After being apprehended, Martin asked the arresting officer, “Why’d that man shoot at us?” During the trial, Judge Christian ruled that Martin’s question was inadmissible hearsay because it was an implicit assertion of his innocence. Aghadiuno had argued that the question should be admitted because it showed that Martin did not know Dykman was a police officer.
Glickman’s opinion said that if the prosecutor wishes to keep out the question in the retrial, the prosecutor must prove that Martin intended to show his innocence by asking the question and wasn’t simply trying to acquire information.