Participating in a shootout after arriving armed in a rival gang’s neighborhood can justify a first-degree murder conviction under the “urban-gun-battle” theory.

Deonte J. Bryant & Terrance M. Bush v. United States (decided November 3, 2016).

Players: Chief Judge Washington, Associate Judge Blackburne-Rigsby, Senior Judge Belson. Rachel W. Apter for Mr. Bryant. Jessie K. Liu for Mr. Bush. Trial judge: John Ramsey Johnson.

Facts: On June 25, 2011 at the Caribbean Festival on Georgia Avenue, Terry Jimenez, a member of the 11th Street/Hobart gang, started a shootout with Deonte Bryant and Terrance Bush, who were members of rival gangs to Hobart. The shootout occurred in an area associated with Jimenez’s gang. During the shootout, three bystanders were shot and one died as a result. The government indicted Mr. Jimenez, Mr. Bryant, and Mr. Bush for the shooting but then entered into a plea agreement with Mr. Jimenez to second-degree murder in exchange for his testimony against Mr. Bryant and Mr. Bush. 

On the day of the shooting, Mr. Jimenez was with two friends, Mr. Butler and Mr. Young. Mr. Young testified he and Mr. Jimenez sat down to drink liquor and smoke four K2 joints. Mr. Young said he saw Mr. Bryant “mean-mugging” Mr. Jimenez from across the street. In response, Mr. Jimenez ran to get his gun. Fearing an altercation, Mr. Young went to get his little brother from a nearby playground but ran into Bryant. According to Mr. Young, Mr. Bryant said to him, “[T]ell your man we trying to work,” which Mr. Young considered to be threatening words. Soon after, Mr. Jimenez, Mr. Young, and Mr. Butler began to follow Mr. Bryant and Mr. Bush. Mr. Jimenez’s friend described him as “going nuts” and “disturbed” during this time period. Mr. Butler testified that he tried to “talk [Mr. Jimenez] off the ledge,” but that Mr. Jimenez acted as if it was a “game” and continued to follow Mr. Bryant and Mr. Bush. At one point, Mr. Young and Mr. Jimenez saw Mr. Bryant place his hand on his waistband, or “pump fake,” as if to indicate he had a weapon. As Mr. Jimenez walked into the street, he started firing his weapon. Every witness at trial who witnessed the shooting, other than Mr. Jimenez, testified no one else had pulled out a gun prior to Mr. Jimenez shooting first. Mr. Jimenez said he saw Mr. Bryant pull out a gun first. During the shooting, Mr. Jimenez was shot in the elbow, and three other people were shot in the cross-fire, with one dying. Police recovered numerous shall casings from the scene and a ballistic expert testified that the casings were consistent with being fired from three separate guns. 

The jury convicted Mr. Bryant and Mr. Bush of first-degree murder while armed, assault with intent to kill while armed, aggravated assault while armed, carrying a pistol, and five counts of possession of a firearm during a crime of violence. 

Issue 1:  Was the admission of a compilation surveillance video without authentication by the person who created it a violation of appellants’ right to confrontation?

Holding: No. Prior to resting its case, the government emailed defense counsel to ask if either wanted to cross-examine the creator of the compilation video. As neither said yes, the Court reviewed the issue for plain error and ruled that the video was properly admitted as it was authenticated by a witness who was present during the shooting who testified that it accurately portrayed the events of the day. And, the Court concluded there was not any prejudicial effect from the video as it was not an “essential part of the government’s case, nor did it prove an essential element of the charged crime.”

Issue 2: Did the trial court err in admitting evidence of appellants’ involvement with neighboring gangs?

Holding: No. The Court ruled the gang-affiliation evidence was admissible to provide “context for the events that led to the shooting.” The Court agreed with the government’s arguments that the gang evidence showed why appellants arrived at the festival with guns, why Mr. Jimenez immediately armed himself after seeing members of a rival gang in his neighborhood, why Mr. Jimenez perceived “mean-mugging” as a threat of deadly force, and why appellants opened fire with the intent to engage in a gun battle and not in self-defense. The Court found there was competent evidence that Mr. Jimenez, Mr. Bryant and Mr. Bush all were affiliated with gangs, and that there was evidence of hostility, particularly between Mr. Bryant and Mr. Jimenez’s gangs or neighborhoods. While the evidence showed Mr. Bush and Mr. Bryant were affiliated with different gangs, the Court found the evidence showed that their gangs were allies and had similar motive and intent to engage with Mr. Jimenez due to his gang affiliations. Also, the Court ruled the evidence was not overly prejudicial because the trial court provided a limiting instruction and required that the groups be referred to as “neighborhoods” rather than “gangs.”

The Court did rule that it was error to admit evidence of a 2011 murder of a member of Mr. Jimenez’s gang and a 2007 murder of a member of Mr. Bryant’s gang. The government believed this evidence helped explain the feud. The Court disagreed, ruling that the evidence of these murders was “neither necessary proof of, nor contemporaneous to, the crime charged,” but was merely cumulative of the other testimony that extensively described the rivalry between the gangs. Further, the 2007 murder was four years earlier and showed only Mr. Jimenez’s motive and not the motive of either of the appellants. Nevertheless, the Court concluded the error was harmless given the trial court’s limiting instruction and that the evidence was only used to show the history between the gangs and not specifically either of the appellants’ motives. 

Issue 3: Did the court error in instructing the jury on the “urban-gun-battle theory” of causation for the elements of first-degree murder?

Holding: No. Although the urban-gun-battle theory had only been previously approved in cases of second-degree murder, the Court “failed to see how the instruction is incompatible with first-degree murder if the jury is properly instructed.” The instruction, as part of the first-degree murder instruction, charged the jury that if the government proved beyond a reasonable doubt that Mr.  Bryant and Mr. Bush 1) “were armed and prepared to engage in a gun battle,” 2) “did in fact engage in a battle,” 3) did not act in self defense, 4) their conduct “was a substantial fact in the death [that resulted],” and 5) it was reasonably foreseeable that death or serious bodily injury to innocent bystanders could occur as a result of Mr. Bryant’s and Mr. Bush’s conduct, then “as a matter of law, Deonte Bryant and Terrance Bush] are deemed to have caused the death [that resulted].” Though the Court agreed that the instruction “is perhaps more generally applicable to second-degree murder where a dispute breaks out between individuals and it is unclear whether the shoot-out was the result of premeditation and deliberation or was provoked by something that happened during the specific confrontation,” it refused to limit the instruction to second-degree murder. The Court concluded “we see no reason why [the instruction] should not apply in the first-degree murder context where the government can show that appellants engaged in a shoot-out with the premeditated and deliberate intent to kill another in the vicinity of hundreds of innocent bystanders, such as the forum chosen by the appellants in this case.” The Court found the government met its burden to warrant the instruction based on evidence Mr. Bryant and Mr. Bush arrived at the scene of the shooting already with weapons, they went to a rival gang’s neighborhood, and they did so knowing there would be a large number of bystanders in the area. 

Issue 4: Was it plain error for the trial court to give the provocation instruction?

Holding: No. The trial court instructed the jury that the government could disprove self defense if there was evidence the appellants provoked the action from which they were defending themselves. Appellants argued that in accordance with Tibbs v. United States, 106 A.3d 1080, 1085 (D.C. 2015), provocation requires that the defendants engaged in a “violent or threatening encounter with specific individuals and then shortly thereafter sought out those same individuals again.” The Court agreed that violent or threatening conduct can be sufficient to justify a provocation instruction but declined to limit the instruction to only such situations. The Court ruled that even without any violent conduct, there was some evidence of provocation, primarily based on testimony that Mr. Bryant was “mean mugging” towards Mr. Jimenez and that they intentionally went to a rival gang’s neighborhood armed with weapons.  Accordingly, the Court “reviewing only for plain error,” found no error. 

Issue 5: Was there sufficient evidence of first-degree murder?

Holding: Yes. The Court concluded that there was sufficient evidence of premeditation and deliberation to satisfy the elements of first-degree murder. The Court cited evidence showing Mr. Bryant and Mr. Bush attended the festival armed with weapons knowing it was in a rival gang’s neighborhood, and that moments before the shooting, Mr. Bryant “attempted to provoke Mr. Jimenez though the statement ‘tell your man we trying to work’ and by ‘pump faking’” towards his waist as if to indicate he had a weapon and was about to use it. Additionally, the Court cited the rivalry between the gangs as establishing a pre-existing motive. 

Issue 6: Did the court err in declining to sever Mr. Bush’s trial from that of Mr. Bryant?

Holding: No. Though the evidence showed mainly that the rivalry between gangs involved Mr. Bryant’s and Mr. Jimenez’s gang, and that the evidence prior to the shooting of provocation involved Mr. Bryant and not Mr. Bush, the Court did not think severance was warranted. The Court ruled that Mr. Bush’s participation was “not de minimis” as he was present the entire time with Mr. Bryant. Also, the Court concluded Mr. Bush did not suffer manifest prejudice, considering he was alleged to have participated in the same series of events as Mr. Bryant and that the trial court gave a sufficient limiting instruction to the jury. 

Of Note:

• Though this case expanded the “urban-gun-battle theory” instruction to first-degree murder cases, instead of cases of second-degree murder (where the theory is that the gun battle proved either reckless or depraved heart conduct), this case can be limited to its facts for three main reasons: 1) the evidence showed the appellants specifically went to a rival gang’s neighborhood; 2) they arrived carrying their weapons; and 3) prior to Mr. Jimenez shooting, there was evidence of Mr. Bryant “mean mugging” and “p[ump faking,” and his statement to Mr. Young,  “[T]ell you man we trying to work,” which were all considered threatening conduct.

• Similarly, the Court’s ruling may be read by the government as an expansion of Tibbs as to when a provocation instruction can be given. However, the Court was clear that its conclusion was limited to a “plain error review.” As such, absent any specific evidence of a threatening or violent encounter with specific individuals immediately followed by seeking out those individuals, be sure to object to any provocation instruction.

• If gang-affiliation evidence is going to be admitted, this case may support an argument that at the very least, the groups should be referred to as “neighborhoods” instead of “gangs.” BM

Read full opinion here.

Four Errors Do Not a Reversal Make, a.k.a. Tips on Jury Instructions for Aiding and Abetting and Co-conspirator Liability

Buskey v. United States (decided Nov. 10, 2016).

Players:  Associate Judges Glickman and Easterly, and Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Buskey and Margaret M. Cassidy for Mr. Simms.  Trial judge: John McCabe.

Summary:  Mr. Buskey and Mr. Simms were tried jointly for two robberies.  In both robberies, the victims were confronted by two men working together.  In the first, which occurred in the elevator of the victims’ apartment building, one of the assailants threatened to stab the victims, although no knife was visible.  In the second, which occurred in the victims’ home, both assailants had visible knives. 

This appeal arose from numerous claims regarding the substance of the jury instructions, the order in which those instructions were given, as well as the manner in which supplemental instructions were given in response to jury notes. Ultimately, the DCCA affirmed all of appellants’ convictions, but this opinion is notable because the court found that the trial court erred in numerous ways regarding the jury instructions.  Each of those errors is noted below.

Errors 1 and 2: The trial court’s initial jury instruction on aiding and abetting liability included a general explanation, and then included offense specific instructions for burglary, robbery, and kidnapping, but included no offense specific instruction for carrying a dangerous weapon (CDW).  The omission of this offense specific instruction was error, and that error was plain.

The jury subsequently inquired whether aiding and abetting could apply to a CDW charge, and trial court acknowledged its error.  However, in reinstructing, the jury the court plainly erred again.  The reinstruction told the jury that to convict of aiding and abetting CDW, the jury needed to find that the defendant “acted with the intent that the weapon be used unlawfully,” but failed to instruct it to find that the accomplice had “aid[ed] and abet[ted] the principal’s ‘carrying’ of the dangerous weapon . . . [by] tak[ing] some step ]to further the carrying.’”  

Error 3: The trial court’s placement of its instruction on co-conspirator liability between two instructions relating to the substantive charge of conspiracy as a distinct crime was plain error.  That is because jury instructions “as a whole should provide the jury with a clear path to understanding the substantive law, the theories of defendant liability, and the general but fundamental principles governing a defendant’s guilt,” which these instructions failed to do.

Error 4: The trial court’s failure to read its supplemental jury instructions (in response to several jury notes) in open court was error.  The DCCA did not seem to find this error plain in this case, given the dearth of on-point case law in this jurisdiction, although henceforth, it will be.  CP

Read full opinion here.

At Least One Judge Wants the “Urban Gun Battle” Theory Overturned

Fleming v. United States (decided Nov. 10, 2016).

Players: Associate Judges Glickman, Fisher, and Easterly.  Opinion by Judge Glickman.  Concurrence by Judge Easterly.  Peter F. Meyers for Mr. Fleming.  Trial judge: Robert E. Morin.

Summary:  In Roy v. United States, 871 A.2d 498 (D.C. 2005), the DCCA approved a jury instruction in a murder case on the “gun battle” theory.  Under this theory, if a defendant is a participant in a shoot out during which a bystander is killed, a defendant may be found guilty of that person’s murder without proof that either the defendant’s or one of his confederates’ bullet killed the bystander.  In this radical departure from traditional theories of criminal liability, so long as the government proves “(1) a defendant’s actions contribute substantial to are or a substantial factor in a fatal injury . . . and (2) the death is a reasonably foreseeable consequence of the defendant’s actions,” the defendant may be found guilty of murder.

In this case, Mr. Fleming was charged with murder for the death of an individual who was killed during a gun battle between four persons—two on each side of a dispute.  There was no evidence whether antagonistic or friendly fire resulted in the death.  The jury was instructed on the gun battle theory of liability, and Mr. Fleming was convicted of the murder.

The basis of Mr. Fleming’s appeal was that Roy should be limited to the death of bystanders, and not expanded to the death of participants in a gun battle.  The panel majority disagreed, and held that there is no distinction to be drawn between the death of a bystander and the death of a participant.

Of Note:  Judge Easterly writes a compelling concurrence arguing that Roy was wrongly decided.  She argues that nowhere in the criminal law is there precedent for removing but for causation from the requirements of criminal liability, and that to remove the essential element that the defendant “kills another” from D.C. murder statutes is to impermissibly rewrite those statutes.  She argues (1) that the court should go en banc to overturn Roy, but also (2) that because Roy conflicts with long-standing precedent it is not even binding law.   CP

Read full opinion here.

“A Lazy Hazy Weekend”: An Ounce Of Weed Alone Is Insufficient To Prove Possession With Intent To Distribute.

Travis McRae v. United States (decided November 3, 2016). 

Players: Associate Judges Glickman and Thompson, Senior Judge Ferren. Opinion by Judge Glickman.  Robin Earnest for Mr. McRae. Trial Judge: Anita Josey-Herring.
 

Facts: Mr. McRae was standing outside of an apartment building with several other men when the MPD gun recovery unit pulled up.  Mr. McRae ran into the building, through an apartment, and out the back door.  An officer chased him but could not keep up. However, the officer did find Mr. McRae’s discarded jacket and in one of the pockets, there was 4/5 of an ounce of marijuana.  Police searched the apartment that Mr. McRae ran through and found a digital scale and ziplock bags of varied size and color.  Drug expert Detective George Thomas testified that the scales and bags are often used for drug dealing, but usually not for dealing marijuana, and that although 4/5 of an ounce of marijuana has a street value of over $200, it was not unusual for a person to purchase that much weed for personal consumption.  Det. Thomas also said that the weed that police found in McRae’s jacket was not packaged in a way that indicated it would later be distributed.

Issue: Was the evidence sufficient to prove that Mr. McRae possessed the marijuana with the intention of distributing it?

Holding: No. Because there was no direct evidence of distribution or of Mr. McRae’s intent to distribute, the government had to rely on inferential evidence.  While normally, evidence of a quantity of drugs that “exceeds supply for personal use” or packaging “in a manner indicative of further distribution” can carry the government’s burden of proof, here, “that sort of evidence was strikingly absent.”  There was no evidence that the weed was packaged in a way that indicated distribution rather than personal use, and the quantity of marijuana was within the realm of that purchased for personal use, even if it was unlikely that it could all be smoked in one “lazy hazy weekend.”  The paraphernalia in the apartment did not change this calculus because the government’s expert testified that the paraphernalia found is often used in connection with other drugs, not weed, and it is perfectly possible for a dealer of one type of drug to personally use marijuana.  DH

Read full opinion here.