Petition for Writ of Certiorari — Day v. United States

a." Supreme Court, U.5.

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~~ No.6 9G1431 MAR 7 1997

OFFICE OF PHE CLARK

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Curtis L. Day, Petitioner

v.

The United States of America, Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Andrew McGuire

Counsel of Record

601 Pennsylvania Avenue, N.W.

Suite 900

Washington, D.C. 20004

(202) 434-8250

Christopher Warnock

ial Counsel,

Independent Public Defender

Bar Association of the District of Columbia

2337 Ashmead Place, N.W.

Washington, D.C. 20009

(202) 234-6756

Counsel for Petitioner

QUESTIONS PRESENTED

1. In determining whether an accused has the right toa

jury trial, may the court ignore the nature of the charged

offense and whether it was triable by jury at common law?

2. Is the maximum authorized period of incarceration

the only criterion in determining whether an offense is

"serious" and therefore jury triable?

3. Does an offense carrying a maximum prison term of

six months or less automatically qualify as a "petty offense"

for which there is no right to trial by jury?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL

AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR

GRANTING THE PETITION

I. This Court should continue to

recognize the common law right

to jury trial

A. The ‘Petty Offense’ Doctrine

B. Blanton v. City of North Las Vegas

C. The District of Columbia Court

of Appeals Misread Blanton

D. This Court should not Overrule Colts

and allow Legislatures to define the

Constitutional right to jury trial

II. The Court of Appeals’ Day Decision is

in conflict with a holding of the United States

Court of Appeals for the District of Columbia

CONCLUSION

APPENDIX A

APPENDIX B

ii

iil

TABLE OF AUTHORITIES

U.S. Supreme Court Cases:

Baldwin v. New York, 399 U.S. 66 (1970)

~ Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989)

Blockberger v. United States, 284 U.S. 299 (1932)

Callan v. Wilson, 127 U.S. 540 (1888)

Dimick v. Schiedt, 393 U.S. 474 (1939)

District of Columbia v. Clawans, 300 U.S. 617 (1937)

District of Columbia v. Colts, 282 U.S. 63 (1930)

Duncan v. Louisiana, 393 U.S. 474 (1939)

Frank v. United States, 395 U.S. 147 (1969)

Lewis v. United States, 116 S.Ct. 2163 (1996)

Schick v. United States, 195 U.S. 65 (1904)

SESE GE 7 GEA ae

Browner v. District of Columbia,

549 A.2d 1107 (D.C. 1988)

Burgess v. United States, 681 A.2d 1090 (D.C. 1996)

Day v. United States, 682 A.2d 1125 (D.C. 1996)

In re Faulden, 20 D.C. 433 (D.C. 1892)

In re Robinson, 20 D.C. 570 (D.C. 1892)

ele Ritts

Landry v. Hoepfner, 840 F.2d 84 (5th. Cir. 1988)

United States v. Craner, 652 F.2d 23 (9th Cir. 1981)

United States v. Floyd, 477 F.2d 217 (10th Cir. 1973)

United States v. Kozel, 908 F.2d 205 (7th Cir. 1990)

United States v. Musser, 883 F.2d 84 (D.C. Cir. 1988)

United States v. Woods,

450 F.Supp. 1335 (D.C.Md. 1978)

lil

Page

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passim

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No. 96-

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Curtis L. Day, Petitioner

v.

The United States of America, Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Petitioner, Curtis L. Day respectfully petitions for a writ

of certiorari to review the judgment of the District of

Columbia Court of Appeals.

OPINIONS BELOW

The opinion of the District of Columbia Court of Appeals

(Appendix A) is reported at 682 A.2d 1125 (D.C.App. 1996).

JURISDICTION

The District of Columbia Court of Appeals denied

petitioner’s petition for rehearing en banc on December 11,

1996. The jurisdiction of this Court is invoked under D.C.

Code Section 11-102 and 28 U.S.C. Section 1257.

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The Sixth Amendment to the United States

Constitution provides: "In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial by

an impartial jury..."

Article Three, Section Two of the United States

Constitution provides: "The Trial of all Crimes, except in

Cases of Impeachment, shall be by jury....”

District of Columbia Code Section 16-705(a) provides:

"In a criminal case tried in the Superior Court in which,

according to the Constitution of the United States, the

defendant is entitled to a jury trial, the trial shall be by

JUFF cco

District of Columbia Code Section 16-705(b) provides:

"In any case where the defendant is not under the

Constitution of the United States entitled to trial by jury, the

trial shall be by a single judge without a jury, except that if -

(1) the case involves an offense which is punishable by a

fine or penalty of more than $1,000 or by imprisonment for

more than 180 days (or for more than six months in the case

of contempt of court)..."

STATEMENT OF THE CASE

On September 27, 1994, Petitioner Curtis L. Day

received a visit from his twenty-three year old daughter. At

the conclusion of the visit, Mr. Day approached his daughter

and hugged her as she was walking out the door. Mr. Day’s

daughter, however, claimed that her father fondled her

breasts and crotch, and later that night, she called the police

to report the incident. Mr. Day was arrested a month later

and charged with one count of simple assault.

Before trial, Mr. Day filed a motion asserting his common

law right to be tried by a jury. Mr. Day cited the case of Jn re

Robinson, 20 D.C. 570, 572 (D.C. 1892), where the court

held, "It is beyond the power of Congress to enact a law for

2

this District or elsewhere to punish an assault and battery

without providing a trial by jury."

The trial court denied Mr. Day’s jury demand, and

without addressing his common law argument, held that Mr.

Day had no right to a jury trial because the maximum

allowable period of incarceration for simple assault -- 180

days -- did not meet the statutory threshold for jury trials

under Section 16-705(b) of the D.C. Code. After hearing the

evidence, the trial court summarily convicted Mr. Day of one

count of simple assault, sentenced him to four months

imprisonment (two months suspended) and placed Mr. Day

on one year supervised probation.

On appeal to the District of Columbia Court of

Appeals, Mr. Day argued that the Sixth Amendment of the

United States Constitution incorporated his common law

right to a jury trial and that absent any valid waiver of such

right, he could not be tried summarily regardless of the

maximum allowable period of incarceration.

Affirming Mr. Day’s summary conviction, the Court of

Appeals held that "in considering the seriousness of a crime ...

the nature of the offense and whether it was triable at

common law are no longer to be considered..." Day v.

United States, 682 A.2d 1125, 1130 (D.C.App. 1996). The

only relevant factor, according to the court, was whether the

offense was punishable by more than six months

incarceration. "[E]ven though assault may have been jury

triable at common law, we look to how society currently

views the seriousness of the crime." /d. at 1129. Since Mr.

Day faced only a maximum period of incarceration of 180

days, the court held that he had no right to a jury trial, and

his summary trial was proper.

REASONS FOR GRANTING PETITION

This Court should grant Mr. Day’s petition for two

reasons. First, the Court of Appeals in Day v. United States

decided an important question of constitutional law which

has not been, but should be, settled by this Court. Second,

the Court of Appeals decision in Day v. United States is in

direct conflict with a decision of the United States Court of

Appeals for the District of Columbia. See United States v.

Musser, 883 F.2d 84 (D.C.Cir. 1988).

I. THIS COURT SHOULD CONTINUE TO

RECOGNIZE THE COMMON LAW RIGHT TO

JURY TRIAL.

The plain language of the Constitution guarantees the

right to jury trial in "the trial of all crimes" and in “all

criminal prosecutions." U.S. CONST. art. III, sec. 2; U.S.

CONST. amend. VI. Over a century ago, however, this

Court rejected a literal reading of the constitutional jury trial

provisions in a favor of a common law approach. Callan v.

Wilson, 127 U.S. 540 (1888). Now this Court must decide if

the common law approach is still viable, and if not, whether

the plain language of the Constitution has any relevance to

the right to jury trial.

A. The ‘Petty Offense’ Doctrine.

It has long been held that the right to trial by jury does

not apply to "petty offenses." As this Court held in Schick v.

United States, 195 U.S. 65, 76 (1904), "it is obvious that the

intent [of the framers] was to exclude from the [Sixth

Amendment’s] constitutional requirement of a jury the trial

of petty criminal offenses."

What has never been obvious, however, is how to

distinguish "petty offenses" from serious ones. In the earliest

cases, this Court did not consider an offense "petty" if it was

malum in se or was indictable at common law. District of

Columbia v. Colts, 282 U.S. 63, 73 (1930). For example, this

Court categorized as "petty:"

4

[vJiolations of municipal by-laws proper, such

as fall within the description of municipal

police regulations, as for example, those

concerning markets, streets, water works,

city officers, etc., and which relate to acts

and omissions that are not embraced

in the general criminal legislation of the state...

Callan v. Wilson, 127 U.S. 540, 553 (1888).

With the proliferation of regulatory and statutory laws

that did not exist at common law, however, this Court

decided to expand the criteria so that a significant penalty

could put an offense beyond the realm of "petty":

[T]his Court has refused to foreclose consideration

of the severity of the penaity as an element

to be considered in determining whether a

statutory offense, in other respects trivial and

not a crime at common law, must be deemed

SO serious as to be comparable with

common-law crimes, and thus to entitle the

accused to the benefit of a jury trial...

District of Columbia v. Clawans, 300 U.S. 617, 625 (1937).

B. Blanton v. City of North Las Vegas.

In 1989, this Court attempted to resolve lingering

questions regarding the "petty offense” doctrine once and for

all in Blanton v. North Las Vegas, 489 U.S. 538 (1989).

However, Blanton has become more significant for it did not

do than for what it did.

Finding the traditional common law test to be

inadequate for determining whether regulatory and statutory

crimes were jury demandable, this Court held in Blanton that

"[o]ffenses for which the maximum period of incarceration is

six months or less ... are presumptively ‘petty.’" /d. at 543.

The Blanton Court was clearly frustrated with the

common law test. "Our adherence to a common-law

5

approach has been undermined by the substantial number of

statutory offenses lacking common-law antecedents." /d. at

541 n.5. Nevertheless, this Court did not abandon the

common law approach in favor of a strict penalty-driven

criterion. “[We have not previously held] that an offense

carrying a maximum prison sentence of six months or less

automatically qualifies as a ‘petty’ offense, and decline to do

so today...." Id. at 543. a

While acknowledging that it had "move[d] away from

inquiries into such matters as the nature of the offense," this

Court did not expressly state that such inquiries were no

longer relevant to determining the right to jury trial. Jd. at

541 n. 5. To the contrary, this Court did not overrule its

"early decisions [which] focused on the nature of the offense

and whether it was triable by jury at common law." Id. at 541

(citing District of Columbia v. Colts, 282 U.S. 63, 73 (1930).

Moreover, the citation to Landry v. Hoepfner, 840 F.2d

1201 (5th Cir. 1988) (en banc) and United States v. Woods, 450

F.Supp. 1335 (D.C. Md. 1978) suggests that the common law

is still relevant, if not determinative, of an accused’s right to

jury trial.

In Woods, the U.S. District Court of Maryland

employed a balancing test, whereby the common law

pedigree of an offense was one of a number of factors that

determined whether the accused was entitled to a jury trial.

[T]he status of a specific offense at common

law is not solely determinative of an accused’s

right to a jury trial. Rather, the Court must

look to the "principle" of the common law to

determine if a particular offense is one which

would fall into the class of cases properly

labeled "petty," or is one which must be regarded

as "so serious” that it is "comparable to a common

law crime.

450 F.Supp. at 1342. In Landry v. Hoepfner, the Fifth Circuit

Court of Appeals adopted a less subjective test where the

maximum potential penalty had no bearing with regard to

offenses that were jury triable at common law.

6

iacereeaeeeeaiiiniiiamaniaitiied

We do not suggest that Callan or Colts have

been overruled sub silentio — certainly, that

is not for us to say. An offense indictable at

common law is not a "petty offense" for

purposes of Article III, Section 2, clause 3,

or the Sixth Amendment even though it carries

no more than a one-month maximum sentence.

840 F.2d at 1209. In sum, it is impossible to square Blanton’s

footnote 5 with the notion that the common law is no longer

relevant in determining whether an offense is jury triable.

C. The District of Columbia Court of Appeals

Misread Blanton.

The District of Columbia Court of Appeals apparently

was willing to do what the Fifth Circuit declined to do in

Landry v. Hoepfner -- find that this Court overruled Callan

and Colts sub silentio. In District of Columbia v. Colts, this

Court held that "[w]Jhether a given offense is to be classed as a

crime, so as to require a jury trial, or asa petty offense,

triable summarily without a jury, depends primarily upon the

nature of the offense." 282 U.S. at 73. In Day v. United States,

however, the District of Columbia Court of Appeals held

that "in considering the seriousness of a crime ... the nature of

the offense and whether it was triable by jury at common law

are no longer to be considered in this determination." 682

A.2d at 1130.

The Court of Appeals’ Day decision appears to conflict

with its earlier decision in Browner v. District of Columbia,

549 A.2d 1107, 1112 (D.C.App. 1988), where the court held

that "offenses which are malum in se, and which were

indictable at common law, fall within the constitutional

guarantee of trial by jury irrespective of the maximum

punishment that can be imposed." More importantly, the

Day decision is in conflict with this Court’s unanimous

holding in Colts. Certainly the decision to overrule Colts was

not for the District of Columbia Court of Appeals; if such a

determination is to be made, it must be made by this Court.

7

D. This Court Should not Overrule Colts and Allow

Legislatures to Define the Constitutional Right

to Jury Trial

Overruling Colts and the common law test for

determining "petty offenses" should give this Court great

pause. First, if the Sixth Amendment is held to no longer

incorporate the common law right to jury trial, then it would

appear that the constitutional guarantees to a jury in “the

trial of all crimes" and "in all criminal prosecutions" will have

to be read literally. U.S. CONST. art. III, sec. 2; U.S.

CONST. amend. VI. See e.g., Baldwin v. New York, 399 U.S.

66, 74-75 (1970) (Black, J., concurring in judgment); Frank v.

U.S., 395 U.S. 147, 160 (1969) (Black, J., dissenting); District of

Columbia v. Clawans, 300 U.S. 617, 633-34 (1937)

(McReynolds, J., concurring in judgment); Schick v. U.S., 195

U.S. 65, 76-83 (1904) (Harlan, J., dissenting). As this Court

recognized in Callan summary trials of "petty" offenses

cannot be justified without reference to the common law

practices existing at the time of the adoption of the

Constitution:

The third article of the constitution provides for

a jury in the trial of "all crimes except in cases

of impeachment.” The word "crime," in

its most extended sense, comprehends every

violation of public law; in a more limited

sense, it embraces offenses of a serious

or atrocious character. In our opinion, the

provision is to be interpreted in the

light of the principles, which, at common

law, determined whether the accused, in a

given class of cases, was entitled to a trial by jury.

Callan v. Wilson, 127 U.S. 540. 549 (1888).

Furthermore, adopting a strict penalty-driven inquiry

would eviscerate the constitutional right to jury trial by

subjecting it to legislative whim. If the nature of the offense

and whether it was jury triable at common law are no longer

relevant, then a legislature could for strategic purposes take

universally reprehended crimes, such as rape or child

molesting, out of the constitutional guarantees of jary trials

by simply reducing the sentences authorized by the offenses.

See United States v. Craner, 652 F.2d 23, 27 n. 5 (9th Cir.

1981).

Worse, a legislature could rewrite the entire criminal code

so as to make every offense triable summarily while

maintaining stiff punishment. For example, the offense of

first degree murder could be replaced by dozens of creatively

structured separate offenses, each carrying a maximum

punishment of six months: unlawful lying in wait, unlawful

premeditation, possession of an unlicensed instrument used to

cause death, possession of an unregistered instrument used to

cause death, causing the death of another without a license,

causing the death of another without registration, causing

injury to the brain of another, causing injury to the kidney of

another, causing injury to the heart of another, failure to

obtain consent to cause injury to the brain of another, etc.

This hypothetical dissection of a single act into a

multitude a offenses, while outrageous at first

blush, does not offend Double Jeopardy. See Blockburger v.

United States, 284 U.S. 299 (1932). In the aggregate, the

defendant could face a hundred years or more imprisonment;

nevertheless, he would not be entitled to a jury trial since

each individual offense is punishable by no more than six

months.. Lewis v. United States, 116 S.Ct. 2163 (1996).

The possibility of a wholesale recodification of the

criminal code in order to abolish jury trials is not as far

fetched as it may seem. This Court recognized in Lewis that

Prosecutors are not above "circumventing" the rules in order

to deprive criminal defendants of a trial by jury. 116 S.Ct. at

2168. Nor are legislators immune to the lure of summary

trials which purport to be more efficient and economical,

while increasing the conviction rate.

For instance, by reducing the maximum potential

penalty for "serious offenses" such as assault and theft to

under six months imprisonment, the District of Columbia

City Council purported to abolish jury trials for these

offenses while at the same time increasing the actual length of

9

imprisonment upon conviction. See Title I of D.C. Act 10-

238, 41 D.C. Reg. 2608 (1994); see generally, In re. Robinson,

20 D.C. 570 (D.C. 1892) (assault) and Jn re. Faulden, 20 D.C.

433 (D.C. 1892) (theft). As one council-member explained:

[T]here was a reluctance on the part of Members

to do something that essentially was or seemed

to be a lessening of the society’s response to a

criminal offense....[T]he misdemeanor

streamlining didn’t let people go any easier, or

it didn’t lessen the punishment. In fact, it really

made the punishment...potentially more severe

because, with misdemeanor streamlining, you

will serve a maximum of more time than you

would under the current system...I think we

want to be strict. We just want an efficient

system of being strict.

Burgess v. United States, 681 A.2d 1090, 1094 n. 6 (D.C. App.

1996).

In Day, the Court of Appeals turned a blind eye to such

legislative history, although one judge found it to be

“unnverving." Day, 682 A.2d at 1130 (Mack, J., concurring).

This Court should not ignore such legislative

pronouncements as they demonstrate the danger of departing

from the common law right to jury trial and the plain

language of the Constitution.

10

II. THE COURT OF APPEALS’ DAY DECISION IS IN

CONFLICT WITH A HOLDING OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA.

This Court should also grant Mr. Day’s petition because

in the District of Columbia there are now two different

interpretations of Blanton and the Sixth Amendment right to

jury trial.

In United States v. Musser, 883 F.2d 84 (D.C. Cir. 1988),

the United States Court of Appeals for the District of

Columbia on rehearing affirmed the appellant’s summary

conviction for leaving his sign unattended in Lafayette Park

in violation of 36 C.F.R. Section 7.96(g)(5)(x). Rejecting

appellant’s claim that he was entitled to a jury trial, the court

relied on the common law distinction between offenses that

were maluin in se and malum prohibitum. The court held that

the unattended sign regulation was malum prohibitum --

wrong only because prohibited -- and did not carry with it

any stigma independent of the maximum possible penalty.

Id. at 84.

However, the court -- having considered the Blanton

decision -- held that "[cJonviction of an offense that is malum

in se may or may not carry a stigma that makes it ‘serious’

notwithstanding a light maximum penalty ...." Musser, 830

F.2d at 84. Therefore, in the United States District Court for

the District of Columbia, a defendant may be entitled to a

jury trial if his offense carries such stigma so as to make the

offense serious. Accord United States v. Kozel, 908 F.2d 205

(7th Cir. 1990); Landry v. Hoefpner, 840 F.2d 1201 (5th

Cir.1988); Craner v. United States, 652 F.2d 23 (9th Cir. 1981);

United States v. Floyd, 477 F.2d 217 (10th Cir. 1973).

For example, if Mr. Musser had used his unattended sign to

batter a heckler, he may be entitled to a jury in federal court

because he would be stigmatized as "violent" if convicted. Mr.

Day, on the other hand, charged with sexually molesting his

adult daughter, was tried summarily because according to the

District of Columbia Court of Appeals, "the nature of the

offense ... [is] no longer to be considered..." Day, 682 A.2d at

1130.

11

Such different interpretations are bound to lead to

inconsistency and confusion. Moreover, it gives District of

Columbia prosecutors the power to grant or deny the accused

a jury trial based on which court -- local or federal — it brings

the charges. For these reasons, the Court should grant Mr.

Day’s petition.

CONCLUSION

At the time Mr. Day demanded a jury trial, he was

alleged to have sexually assaulted his twenty-three year old

daughter. The charge against him — simple assault — was jury

demandable under the common law. In addition to the 180

day term of imprisonment he faced if convicted, Mr. Day

could be fined up to $1,000 -- an onerous penalty in light of

his indigency. Repeatedly characterizing Mr. Day’s offense as

"serious" and "vile," the prosecution argued that with regard

to his jury demand, Mr. Day’s offense was "petty."

The semantic somersaults notwithstanding, Mr. Day

was summarily tried and convicted in less than three hours

because the court found his offense to be "petty."

The "petty offense" doctrine is not without its faults. It

depends on the vagaries of the common law, and thus, may

prove meaningless for offenses without common-law

pedigrees. But this Court put itself in this position by

moving away from a literal reading of the Constitution’s jury

trial provisions. To move further away from that plain

language by denying jury trials for all but those who face

more than six months imprisonment is to betray the clear

and obvious intent of the framers of the Constitution. -

The common law right to a jury trial was incorporated

into the Constitution and exists as a fundamental right.

Duncan v. Louisiana, 391 U.S. 1147 (1968). Any seeming

curtailment of right to jury trial should be scrutinized with

utmost care. Dimick v. Schiedt, 393 U.S. 474, 485-86 (1934).

This Court now has the opportunity to put a stop to the

District of Columbia’s encroachment on that right. For these

reasons, Mr. Day respectfully requests that this Court grant

his petition for the writ of certiorari.

12

Andrew McGuire

Counsel of Record

601 Pennsylvania Avenue, N.W.

Suite 900

Washington, D.C. 20004

(202) 434-8250

Christopher Warnock

ial Counsel,

Independent Public Defender

Bar Associaiton of the District of Columbia

2337 Ashmead Place, N.W.

Washington, D.C. 20009

(202) 234-6756

Counsel for Petitioner

13

APPENDIX A

District of Columbia Court of Appeals

No. 95-CM-675

Curtis L. Day, APPELLANT,

v.

Unrrep States, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(Hon. John H. Bayly, Jr., Trial Judge)

(Argued April 15, 1996 Decided September 19, 1996)

Andrew Philip McGuire, appointed by the court, for appellant.

Anna Matheson, Assistant United States Attorney, with

whom Eric H. Holder, Jr., United States Attorney, John R.

Fisher and Thomas C. Black, Assistant United States Attor-

neys, were on the brief, for appellee.

Before SreapMan and Ruiz, Associate Judges and Mack,

Senior Judge.

Opinion for the court by Associate Judge Rum.

Concurring opinion by Senior Judge Macx at p. 10.

Ruiz, Associate Judge: Appellant, Curtis Day, was con-

victed of simple assault in violation of D.C. Code § 22-504

(1996) in a bench trial before the Judge John H. Bayly, Jr. Day

was sentenced to four months confinement, execution of sen-

tence suspended as to all but two months in jail, followed by

one year of supervised probation and ten dollars in court

costs. Day appeals on grounds that he was denied his consti-

tutional right to be tried by a jury. He argues that since

14

assault was a crime which was jury-triable under the common

law, the Constitution protects his right to a jury in an assault

trial. He further argues that for a crime with a common-law

antecedent the maximum sentence allowable on a conviction

does not determine whether or not a defendant has a right to

a jury trial. We disagree with Day and affirm the conviction.

On September 27, 1994, Day received a visit from his

twenty-three year old daughter. The two visited for a while

in the living room until Day went into his bedroom and called

her in. They conversed until Day began to smoke crack co-

caine. This upset his daughter so that she left the room. She

subsequently attempted to leave the apartment. Day testified

that he hugged his daughter and calmed her down before she

left; she testified that Day approached her from behind, grab-

bing her breast. Day's daughter said that her father held the

door closed with his foot for about two minutes while he

rubbed her breast and her crotch and said “[yJour mind is

telling you yes, but your body is saying no.” She pushed her

father away and left. As she got into her car, Day told her

that the next time she came over alone she ought to think

about what he was doing. When Day's daughter got home, she

discussed the events with her grandmother and called the

police.

Day was arrested and charged with simple assault in viola-

tion of D.C. Code § 22-504 (1996). Under the Misdemeanor

Streamlining section of the Omnibus Criminal Justice Reform

Act of 1994,' the penalty for a violation of D.C. Code § 22-504,

simple assault, was-reduced from twelve months incarcera-

tion and $500 fine to 180 days incarceration and $1,000 fine.

Before the trial began, the judge heard Day's arguments

that he had a right to be tried by a jury. The judge denied

Day's motion for a jury trial, and, after a bench trial, found

Day guilty of simple assault. Day appeals on the grounds that

1 41 D.C. Reg. 2608, 2610 (1994).

15

the court’s refusal of a jury trial violated his rights under

Article III, § 2, and the Sixth Amendment of the United

States Constitution.’

Day's demand for a jury is reviewed de novo. “Determina-

tions of fact-free principles of law are designated questions of

law and require an independent appraisal of the record on

appeal without deference to the trial court's findings.”

Bingham v. Goldberg, Marchesano, Kohlman, Inc., 637 A.2d 81,

89 (D.C. 1994); Davis v. United States, 564 A.2d 31, 35 (D.C.

1989) (en banc).

Day’s argument that he has a constitutional right to a jury

trial centers upon whether assault is a “serious” or a “petty”

crime. This determination has been made central to a

defendant’s entitlement to a jury trial because although the

literal language of Article III, § 2 of the U.S. Constitution

guarantees a right to a trial by jury for “all Crimes, except in

Cases of Impeachment,” and the Sixth Amendment likewise

grants a jury trial “[i]n all criminal prosecutions,” the Su-

preme Court has held that defendants in trials for “petty”

crimes can be tried summarily. As the Court pointed out in

District of Columbia v. Clawans, 300 U.S. 617, 624 (1937), “[a]t

the time of the adoption of the Constitution there were nu-

merous offenses, commonly described as ‘petty,’ which were

tried summarily without a jury, by justices of the peace in

England, and by police magistrates or corresponding judicial

officers in the Colonies, and punished by commitment to jail,

a workhouse, or house of correction.”

In Duncan v. Louisiana, 391 U.S. 145, 158 (1968), the Court

said: “we hold no constitutional doubts about the practices,

common in both federal and state courts, of accepting waivers

© Article III, § 2 provides: “The trial of all Crimes, except in

Cases of Impeachment, shall be by Jury... .”

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury... .”

16

of jury trial and prosecuting petty crimes without extending

a right to jury trial.” In Frank v. United States, 395 U.S. 147,

148 (1969), the Court affirmed the notion that there are crim-

inal charges which do not warrant a jury trial. In short, the

Court has recognized that while courts must provide for jury

trials for all “serious” crimes, “there is a category of petty

crimes or offenses which is not subject to the Sixth Amend-

ment jury trial provision.” Duncan, supra, 391 U.S. at 159. |

The Supreme Court having ruled that the category of petty

crimes is outside of the constitutional requirement of a trial

by jury, we must determine whether the crime of simple

assault is “petty” or “serious” for this constitutional purpose.

The Court gave guidance to help with this determination in

Blanton v. North Las Vegas, 489 U.S. 538 (1989), ruling unan-

imously that the most relevant criterion for judging “the seri-

ousness with which society regards the offense” is “the sever-

ity of the maximum authorized penalty.” Jd. at 541 (quoting

Frank v. United States, 395 U.S. 147, 148 (1969) and Baldwin

v. New York, 399 U.S. 66, 68 (1970) (plurality opinion)). The

Court looks to “statutory penalties,” and primarily “the max-

imum authorized period of incarceration,” because “incarcer-

ation is an ‘intrinsically different’ form of punishment.”

Blanton, supra, 489 U.S. at 542 (citing Muniz v. Hoffman, 422

U.S. 454, 477 (1975)). The Court established a presumption

that crimes punishable by a statutory penalty of six months

or less are petty and are not constitutionally required to be

tried by a jury. Jd. at 542-43. The Court in Blanton recognized

‘that a legislature might “pack[] an offense it deems ‘serious’

with onerous penalties that nonetheless ‘do not puncture the

6-month incarceration line.” Jd.

Day makes two arguments that he has a right to a jury

trial. The first argument is that under the common law, as-

sault was triable by a jury, and the Constitution protects that

common law right notwithstanding legislation designed to

strip the right to a jury trial from the offense of simple assault

by reducing the maximum penalty to less than six months

17

incarceration.*® The second argument that Day makes is that

even if the legislature could affect the right to trial by jury, —

he is nonetheless entitled to a jury trial because the severity

of the maximum authorized penalty is not solely determina-

tive of the seriousness of a crime which was jury triable at

common law, but instead, in such cases, the statute must

expressly eliminate the common law right to jury trial. Both

arguments attempt to persuade this court that Blanton’s

focus on a six-month penalty threshold does not apply in this

case.‘ Holding that Blanton does indeed apply, we reject both

arguments.

Day’s first argument is that the Blanton ruling does not

apply in this case because Article III, § 2 and the Sixth

Amendment of the Constitution were not intended to dimin-

ish, but rather to protect, the common law right to a jury, and

under the common law, assault was jury triable. Therefore,

according to Day's argument, the United States Constitution

continues to protect Day's right to a jury in a trial for assault.

This argument depends upon the assumption that if a crime

was jury triable at common law that. right may not be modi-

fied or extinguished by a legislative act. Day's interpretation

of the Constitution, however, has been abandoned by Su-

preme Court jurisprudence. In its most recent pronounce-

ment on the constitutional right to jury trial, the Court ex-

plains its development of the proper analysis to determine

whether an offense is “serious” and, therefore, constitution-

ally entitled to a jury trial:

To determine whether an offense is properly char-

acterized as “petty,” courts at one time looked to

the nature of the offense and whether it was triable

by a jury at common law. Such determinations be-

3 Although Day's counsel did not press this argument orally, we

address it because it appears in his brief.

4 Day has not called to our attention any other statutory

penalties that may result from conviction for simple assault.

came difficult, because many statutory offenses

lack common-law antecedents. Blanton v. North Las

Vegas, 489 U.S. 538, 541, and n.5 (1989). Therefore,

most recently, we have instead sought “objective

indications of the seriousness with which society

regards the offense.” Frank v. United States, 395

U.S. 147, 148 (1969); accord, District of Columbia v.

Clawans, 300 U.S. 617, 628 (1937). Now, to deter-

mine whether an offense is petty, we consider the

maximum penalty attached to the offense. This cri-

terion is considered the most relevant. with which to

assess the character of an offense, because it re-

veals the legislature's judgment about the offense’s

severity. “The judiciary should not substitute its

judgment as to seriousness for that of a legislature,

which is far better equipped to perform the task

...." Blanton, 489 U.S. at 541 (internal quotation

marks omitted). In evaluating the seriousness of

the offense, we place primary emphasis on the max-

imum prison term authorized. While penalties such

as probation or a fine may infringe on a defendant's

freedom, the deprivation of liberty imposed by im-

prisonment makes that penalty the best indicator of

whether the legislature considered an offense to be

“petty” or “serious.” Jd., at 542. An offense carrying

a maximum prison term of six months or less is

presumed petty, unless the legislature has author-

ized additional statutory penalties so severe as to

indicate that the legislature considered the offense

serious. /d., at 543; Codispoti v. Pennsylvania, 418

U.S. 506, 512 (1974).

Lewis v. United States, 64 U.S.L.W. 4581, 4582 (U.S. June 24,

1996). Thus, even though assault may have been jury triable

at common law, we look to how society currently views the

seriousness of the offense.

19

Day relies on Jn re Robinson, 20 D.C. 570 (1892), to argue

that District of Columbia courts, under the common law,

found assault to be a serious crime requiring a jury trial. We

do not find this argument persuasive because Robinson was

decided before the passage in 1901 of what is now D.C. Code

§ 49-301 (1990), which states that the statutes and the com-

mon law of Maryland are the law in the District of Columbia

“except in so far as the same are inconsistent with, or are

replaced by, some provision of the 1901 Code.” This provision

of the D.C. Code has been interpreted to mean that “[t]he

common law, particularly as derived from the common law of

Maryland, is the fundamental part of the law in this jurisdic-

tion to which we look in the absence of statutory enactment.”

Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.

App. D.C. 351, 354, 187 F.2d 357, 360 (1950) (footnote omit-

ted) (emphasis added). In Nelson v. Nelson, 548 A.2d 109, 116

(D.C. 1988), this court noted that “[i]n order to conclude that

the common law duty in question exists in the District of

Columbia, it is necessary to ascertain that no applicable stat-

ute precludes or abolishes it.” In short, D.C. statutory law

and D.C. case law agree that a relevant statute supersedes

the common law; D.C. Code § 49-301 leaves the common law

to fill in where statutes are silent. Day's argument ignores

that statutes have explicitly modified or abrogated the com-

mon law, and that the common law itself is not frozen in the

past but continues to develop. Sve, e.g., Linkins, supra, 87

U.S. App. D.C. at 354, 187 F.2d at 360.

D.C. Code § 16-705 (1989 & 1996 Supp.) spells out which

criminal charges carry a right to a trial by a jury and which

are triable by a judge sitting without a jury. D.C. Code § 16-

705 states in part (a) that if a defendant is entitled to a jury

trial under the Constitution, the defendant has that right until

the right is waived. Where the Constitution does not mandate

a jury trial, part (b) of D.C. Code § 16-705 provides for a jury

trial only if “(1) the case involves an offense which is punish-

able by a fine or penalty of more than $1,000 or by imprison-

ment for more than 180 days. . . .” Otherwise, trials are by a

20

single judge. Jd. Whether a crime is jury-demandable in the

District of Columbia depends under part (a) upon whether the

Constitution requires it or under part (b), upon whether the

maximum penalty meets the statutory threshold.

The Supreme Court said in Blanton, in determining the

constitutional entitiement to trial by jury, “[t]he judiciary

should not substitute its judgment as to seriousness for that

of a legislature, which is ‘far better equipped to perform the

task, and [is] likewise more responsive to changes in attitude

and more amenable to the recognition and correction of their

misrepresentations in this respect.” Blanton, supra, 489 U.S.

at 541-42 (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209

(5th Cir. 1988) (en banc), cert. denied, 489 U.S. 1083 (1989)).

Following its decision in Baldwin v. New York, 399 U.S. 66

(1970), the Court in Blanton reiterated that it considers any

crime that carries a maximum legislatively authorized sen-

tence of over six months to be “serious” enough to require a

jury trial. Blanton, supra, 489 U.S. at 542. The defendant can

overcome the presumption of pettiness in cases with a maxi-

mum sentence of six months or less only by demonstrating

that he is subject to “additional statutory penalties.” Jd. at

543. The Court does not look to common law precedent which

has been supplanted by statute, nor does the Court require a

search of the legislative history to find the legislature's

attitudes; it points only to the penalties that the legislature

imposes. Jd. Applied to the law in the District of Columbia,

whether the right to jury trial is asserted under the Constitu-

tion or the statute, the relevant inquiry is whether the legisla-

ture has determined that the offense is “serious” by imposing

a maximum penalty of more than six months or more than 180

days.

Day's alternative argument is that even if new legislation

can affect the right to trial by jury for a common law crime,

he is nonetheless entitled to a jury trial because the severity

of the maximum authorized penalty is not solely determina-

tive of the seriousness of a crime which was jury triable at

21

common law, but instead, in such cases, the statute must

expressly eliminate the common law right to jury trial. Day’s

argument can be characterized as a rule of construction

against deprivation of the right to a jury trial in the case of

offenses where that right existed at common law. This argu-

ment fails because Blanton, supra, 489 U.S. at 541-44, ruled

that the severity of the maximum authorized penalty is the

primary factor to be considered in determining the serious-

ness of a crime, and the Court has made clear that the nature

of the offense and whether it was triable by jury at common

law are no longer to be considered in this determination. See

Lewis, supra, 64 U.S.L.W. at 4582. See also Foote v. United

- States, 670 A.2d 366, 371 (D.C. 1996). District of Columbia law

is unambiguously clear in setting a maximum of 180 days

imprisonment for simple assault.® As this court stated in Ste-

venson v. District of Columbia, 562 A.2d 622, 623 n.1 (D.C.

1989) (per curiam), “[I]n light of this plain focus on statutory

penalties [in Blanton], we decline appellant's invitation to

search the . . . legislative history for additional indications

that the Council believed [the offense to be] ‘serious. Foote,

supra, 670 A.2d at 370. That is, we do not look to what

legislators say, but to what the legislature has enacted. Thus,

neither the Constitution nor District of Columbia law entitle

Day to a jury trial for simple assault.

Accordingly, Day's arguments that his constitutional rights

have been violated by the trial court’s denial of a jury trial are

rejected, and the judgment is

Affirmed.

5 Cf. Turner v. Bayly, 673 A.2d 596 (D.C. 1996) (discussing

ambiguities of term “six months”).

22

Mack, Senior Judge, concurring: Judges, in this century,

have uniformly looked to “Legislative History” to resolve real

or imaginary ambiguities in the language or meanings of leg-

islative enactments. It comes as a cultural shock to some of

us, therefore, to realize that in some arenas the onerous ne-

cessity for research may be obliterated. (See the concerns

expressed by [now] Justice Stephen Breyer in The 1991 Jus-

tice Lester W. Roth Lecture — On the Uses of Legislative His-

tory in Interpreting Statutes, 65 S. Cav. L. Rev. 845 (1992).)!

The news is all the more unnerving when a court finds that it

is prohibited from examining the history of a statute that

might shed some light on its intended consequences and/or

constitutional validity.

The statutory provision under consideration here is a crim-

inal one, limited in language to nothing more than a stark and

sterile pronouncement, reducing a term of imprisonment (to

a maximum commensurate with a “petty” offense) for a crime

(formerly triable by a jury at common law). In the absence of

exploration, we have no way of knowing the purpose of the

Council in rewriting the pre-existing provision. We have no

way of knowing (as other appellants in similar circumstances

have argued) whether the Council sought to increase the se-

verity and likelihood of sanctions by forcing defendants to

forfeit a trial by jury (see Burgess v. United States, No. 95-CM-

1352 (D.C. July 22, 1996)), whether it nevertheless considered

the crime a “serious” one, or whether it sought to decrease

the length of imprisonment to clear prison space for those

convicted of more serious crimes.

In any event, I cannot think of a more inappropriate setting

in which to begin the curtailing of reliance upon legislative

1 See W. David Slawson, Legislative History and the Need to Bring

Statutory Interpretation Under the Rule of Law, 44 Stan. L. Rev. 383

(1992); Jack Schwarz & Amanda Stuken Conn, The Court of Appeals

at the Cocktail Party: The Use and Nonuse of Legislative History, 54

Mp. L. Rev. 432; Note, Why Learned Hand Would Never Consult

Legislative History Today, 105 Harv. L. Rev. 1005 (1992).

23

history. However unnerving this may be, our case law dic-

tates it. See Stevenson v. United States, 562 A.2d 622 (D.C.

1989); Foote v. United States, 670 A.2d 366 (D.C. 1996); Bur-

gess v. United States, supra.

I concur.

2 It may or may not be that the legislative body of a

cash-strapped municipality is without the prescient advantage that

the United States Congress, with its numerous aides, enjoys. |

Moreover in following the dictates of United States Supreme Court

decisions, we are nevertheless without knowledge of congressional

assessment of the intent of the D.C. Council.

24

|

APPENDIX B

District ot Columbia

Court of Uppeals

[Filed December 11, 1996]

No. 95-CM-675

CURTIS L. DAY,

Appellant,

M14620-94

Vv.

UNITED STATES,

Appelle.

BEFORE: Wagner, Chief Judge; Ferren, Terry, Steadman,

Schwelb, Farrell, King, Ruiz and Reid, Associate Judges.

ORDER

On consideration of appellant’s petition for rehearing en

banc; and it appearing that no judge of this court has called for

a vote on the petition for rehearing en banc, it is

ORDERED that the petition for rehearing en banc is

denied.

PER CURIAM

25