Monday, March 24, 2014

There’s more than one reason to run from the police.


Vernon Headspeth v. United States, No. 11-CF-1669 (decided March 13, 2014)

Players:  Judges Blackburne-Rigsby, Thompson, and Ruiz.  Opinion by Judge Thompson.  PDS for appellant.  Trial Judge:  William M. Jackson.

Facts:  Brandon Jennings was shot on December 2, 2010.  He survived the shooting, and testified that Mr. Headspeth, his frequent marijuana dealer, had shot him during the course of an unsuccessful robbery attempt.  After Mr. Jennings identified Mr. Headspeth shortly after the shooting, the police obtained an arrest warrant.  On December 17, 2010, Officer Matthew King saw Mr. Headspeth, whom he knew, outside a building.  Officer King, who verified that the arrest warrant was outstanding, followed Mr. Headspeth inside the building and started to detain him.  Mr. Headspeth pulled away and tried to run out the door.  Officer King grabbed Mr. Headspeth’s jacket, and Mr. Headspeth “kind of roll[ed] out of his jacket,” causing both men to fall.  Mr. Headspeth was then arrested.

The government requested a jury instruction regarding an arrestee’s flight, i.e., that the jury may infer from Mr. Headspeth’s flight that he was conscious of his guilt of the charged offenses.  Defense counsel opposed the instruction on a number of grounds, including that there were facts not before the jury showing that Mr. Headspeth and Officer King had a history.  Specifically, Officer King had arrested Mr. Headspeth in 2009 or 2010 for threatening him and Mr. Headspeth had been acquitted of that charge, and Officer King had arrested Mr. Headspeth a second time for violating a court order.  The trial court gave the requested flight instruction, reasoning that it was “not really a very powerful instruction” and it was “reasonably balanced.”

Issue:  Did the trial court err in giving a flight instruction where the jury was unaware of evidence that tended to show that the defendant may have attempted to flee for reasons other than his consciousness of guilt of the charged offenses? 

Holding:  The trial court abused its discretion in giving the flight instruction.  It is not necessarily error to give the flight instruction just because the defendant’s conduct might be explained by reasons other than consciousness of guilt because the flight instruction tells jurors that flight may be motivated by a variety of factors that are consistent with innocence.  But in this case, the jury was unaware of evidence regarding the history between Officer King and Mr. Headspeth.  The jury would therefore have no reason to consider whether that history, rather than consciousness of guilt, explained Mr. Headspeth’s attempted flight.  A trial court may not give a flight instruction when evidence not before the jury suggests a reason for the flight other than consciousness of guilt of the crimes charged and “there is no reason to think that the jury would envision that other reason.”  The erroneous flight instruction was not harmless because the government’s two eyewitnesses had credibility problems, the government’s motive theory was weak, and there was no physical evidence linking Mr. Headspeth to the shooting.

Of note:  Though the holding is somewhat narrow, the opinion hints at a broader hostility toward instructions that tell the jury what inferences they may infer from particular types of evidence. The court cautioned that the flight instruction should be given “sparingly” and warned that the jury will give great weight to the trial judge’s instructions about permissible inferences.   In addition to the flight instruction, the category of “permissible inference” instructions includes the standard jury instructions regarding change of appearance, suppression or fabrication of evidence, the failure to cooperate during an identification procedure, and possession of recently stolen property.  These instructions are anachronistic (dating back to a time when juries were not trusted to sort through evidence on their own and judges were permitted to comment on the evidence) and a growing number of jurisdictions have gotten rid of them.  It may be worth arguing this when objecting to these instructions in order to preserve the issue for appeal.  DG.

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