Players: Associate Judges Easterly and McLeese, and Senior Judge Ferren. Opinion by Judge Ferren. Dissent by Judge McLeese. Matthew B. Kaplan for Mr. Malloy. Trial Judge: Anita M. Josey-Herring
Facts: Anthony Johnson was inside his car making a phone call when Malloy approached him, allegedly calling him “hot” (meaning a snitch), and asked him whether he was on the phone with police. Malloy continued to call Johnson “hot” and then allegedly said, “What if I shot your car,” to which Johnson replied, “Well I guess that make you feel good.” Malloy then allegedly said, “What if I shoot you,” and Johnson said, “I guess I be dead.” Several witnesses claimed that Malloy then pulled out a black pistol and pointed it at Johnson, who left and reported the incident to a police officer.
At trial, the court admitted testimony that, a few weeks before the charged incident, Malloy yelled at Johnson, calling him “hot” and threatening that “he’d shoot [Johnson’s] car up.” The government also played a recording of a jail call in which Malloy told Johnson's son, Anthony Tate, to tell his father not to come to court “because Tate and Tate’s mother still live around there . . . You know how that shit go,” but then said, “That’s not a threat.”
The defense called two eyewitnesses who testified that it was Johnson who told Malloy to go get his gun, and that Malloy did not threaten to shoot Johnson's car.
Issue 1: Did evidence of the prior threat introduced at trial unfairly prejudice the appellant?
Holding: No. Under (William) Johnson v. U.S., 683 A.2d 1087 (D.C. 1996) (en banc), the Court found the prior threat was “necessary to place [the] incident in context” and “complete the story” of the alleged crime. Johnson alleged that Malloy had a history of accusing him of being a snitch and threatening to shoot up his car, and the government used the prior threat to explain complainant’s unfazed response to the threat.
Issue 2: Did the trial court err in precluding defense witnesses' testimony about Johnson's and Malloy's statements during the confrontation?
Holding: No. The testimony about the statements was admitted, albeit with a limiting instruction that it was relevant only to the witnesses' state of mind. That limiting instruction may have been wrong, because it was the state of mind of Johnson and Malloy that mattered, not the state of mind of the witnesses recounting those statements at trial. However, since the limiting instruction was given only once, the DCCA held that there was no prejudice.
Issue 3: Did the jury instructions unconstitutionally permit the jury to find appellant guilty without finding an essential element of the offense of threats, i.e., the mens rea?
Holding: Yes. The DCCA reviewed the issue for plain error because trial counsel failed to object to the jury instruction during trial. At the close of evidence, the trial court instructed the jury as follows: “As to the charge of threatening to kidnap or injure a person, the elements of threat, each of which the government must prove beyond a reasonable doubt, are  that the defendant spoke words heard by Anthony Johnson;  the words the defendant spoke would cause a person reasonable to believe that Anthony Johnson would be serious harmed; and  that the defendant intended to make the communications which constituted the threat. The government is not required to prove that the defendant intended to carry out the threat. It is not necessary that . . . the intended victim actually heard the words or learned about them.”
In Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), the DCCA held that the defendant’s intent to threaten (or at least knowledge that his words will be construed as a threat) is an essential element of a threat. Thus, there was error. "Rather than include Carrell’s language applicable to a defendant’s intent, this instruction permitted conviction merely if the words spoken would cause a person ‘reasonably to believe’ that the complainant would be seriously harmed, without regard to whether the defendant intended such a threat or knew that the words would be perceived as a threat.”
The Court found that the error was “plain” because “plainness” is assessed at the “time of appellate review regardless of the state of the law at the time of trial.” Accordingly, with the law established by Carrell, the instructional error was plain. The government did not dispute that the error was plain.
In determining whether the error affected substantial rights of the defendant, the Court considered the fact that the alleged threats were posed as questions and that the complainant seemed unfazed by them. Given these facts, there was a “reasonable probability that the jury’s verdict could have been swayed” by the jury instructions. In addition, the Court focused on the lack of overwhelming evidence in the case, which was essentially a credibility contest; that the jury had difficulty in their deliberations, twice asking whether a different episode in the case was the basis for the threats; and the fact that the jury acquitted appellant on all other charges. The error also affected the fairness and integrity of the proceedings, as the failure to instruct on the intent element was a constitutional error on a point that was seriously contested at trial.
Dissent: Judge McLeese dissented as to the instructional issue, noting that although he agreed that the instructions were “not correct,” Malloy's words were “objectively threatening.” Thus, in his view, there was no basis for finding that the jury would have doubted appellant’s intent to threaten.
Caroline Howe, Guest-blogging.