An unarmed aider and abettor must KNOW the principal was armed in order to be liable for committing an armed offense.

Leon Robinson and Shanika Robinson v. United States, Nos. 11-CF-1443 and 11-CF-1502 (decided September 25, 2014).
 

Players:  Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  PDS for Ms. Robinson.  Phillip C. Zane for Mr. Robinson.  Trial Judge William M. Jackson.

Facts:  Ms. Robinson was accused of conspiring to kill Shahabuddin Rana, the owner of the Pizza Mart convenience store.  According to the government, Ms. Robinson entered the Pizza Mart with Mr. Robinson and Isaiah Genus and was present while her companions stabbed Mr. Rana with a knife and struck him in the head with a hammer.  (Mr. Robinson had brought the knife to the Pizza Mart; he found the hammer in the store during the attack.)  After Mr. Rana was dead, the government contended that Ms. Robinson helped set fire to his body, stole several items from the store, and helped dispose of her companions’ bloody clothing and weapons.  Ms. Robinson testified that she never entered the Pizza Mart.  

During deliberations, the jury asked whether “knowledge of a weapon” is required for a conviction for armed burglary.  Over Ms. Robinson’s objection, the trial court, relying on Fox v. United States, 903 A.2d 818 (D.C. 2011), instructed the jury that an aider an abettor need only know or have reason to know that the principal offender was armed.  Slip op. at 15-16

Issue: Whether an aider and abettor may be found guilty of a while-armed offense if she merely had “reason to know” that the principal offender was armed.

Holding: No.  Since the principal must knowingly be in control of the weapon, the unarmed aider and abettor must also know the principal is armed.  Slip op. at 20 & n.17 (citing Wilson Bey, 903 A.2d 818, 831 (D.C. 2006) (en banc)).

Notes:

• The government tried to limit the court's ruling to second degree burglary charges, but the DCCA rejected that argument.  The court's reasoning in this case applies to aiding and abetting any while-armed offense.
• Consider using this case to argue that an aider and abettor must know in advance that one of his accomplices would be armed, and that it is not sufficient for him to have merely acquired that knowledge at some point during the crime.  While this decision didn't address that issue, the DCCA cited with approval a recent Supreme Court decision that did hold knowledge of the weapon must be acquired in advance.  See Slip op. at 21 (citing Rosemond v. United States, 134 S.Ct. 1240, 1249-50 (2014)). 
  
• The DCCA directed the Redbook committee to rewrite its proposed instruction on aiding and abetting “while armed” offenses.  The current instruction states that the government must prove that “the aider and abettor had actual knowledge that some type of weapon would be used to commit the offense.”  Slip op. at 14 n. 22 (quoting Instruction 3.200).  The DCCA noted that this instruction should be changed to require only knowledge that the principal is armed, not that the principal would use the weapon.  Id.
• To the extent Fox implies that it is sufficient for an unarmed aider and abettor to merely have reason to know that the principal is armed, the DCCA “disavow[ed]” that decision.  Id. at 25-26.  NG

Read full opinion here.

A trial court may permit jurors evaluating the credibility of a transgender complainant to consider their “common-sense knowledge” that transgender people face discrimination, where the evidence supports an inference that fear of discrimination contributed to the complainant’s delay in reporting an assault

Russell H. Brocksmith v. United States, No. 12-CF-287 (decided September 18, 2014)

Players:  Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Judge Blackburne-Rigsby.  Concurring opinion by Judge Glickman.  PDS for Appellant.  Trial Judge Thomas J. Motley.

Facts:  Brocksmith was convicted of assault with intent to rob for attacking Valerie Villalta and trying to take her handbag.  Villalta went home after the incident and called the police ten or fifteen minutes later.  The defense argued that Villalta fabricated her allegations after Brocksmith rejected her sexual advances and insulted her.  Villalta was a transgender woman, and according to the defense, she was motivated to falsely accuse Brocksmith because his insults “went to the core of who she was.”  On redirect, she attributed her delay in calling police to fear that the police would not arrest Brocksmith and that she would encounter him again.     

During deliberations, a juror sent a note expressing the belief that Villalta “most likely ha[d] an overwhelming incentive to not report an assault because it would mean she would . . . expose herself as LGBT/transgendered” to those who might harbor hostility towards her.  The note asked whether the juror was “permitted to consider” this belief in evaluating Villalta’s credibility.  Defense counsel asked the judge to tell the juror not to consider this factor because there was no evidence to support it.  Instead, the trial judge referred the jury to Instruction 2.104, given as part of the initial instructions, telling the jury that it was “permitted to draw, from the facts which you find have been proven, such reasonable inferences as you feel are justified in light of your experience.”

Because he had prior convictions for crimes of violence, Brocksmith was sentenced to a fifteen-year prison term under the enhancement provision of D.C. Code § 22-1804a(a)(2).

Issue #1:  Did the repetition of the “reasonable inferences” instruction in response to the juror note improperly lead the jury to believe it could consider an unsupported assumption that as a transgendered person Villalta had an “overwhelming incentive not to report” an assault?

Issue #2:  Was remand for resentencing required because the trial judge 1) erroneously believed there was a legislative presumption against suspending any part of Brocksmith’s fifteen-year recidivist sentence, or 2) failed to make necessary inquiries under § 23-111 before imposing an enhanced sentence?

Holding #1:  The trial court’s response to the jury note was not an abuse of discretion.  There was enough evidence in the record to support an inference that Villalta “had a disincentive to contact the police for fear of discrimination and exposure,” given her testimony that she delayed calling police because she was scared and that she knew she was “a transgender person” who had been a crime victim, as well as her “potential demeanor on the stand,” and “the jury’s common-sense knowledge that transgender individuals face hostility and discrimination in our society.”

Holding #2:  Resentencing was unwarranted.  Because the record shows that the judge would not have given Brocksmith a split sentence in any case, the Court did not reach the question whether the legislative intent of D.C. Code § 22-1804a(a)(2) envisioned a fifteen-year prison term.  And although the trial court failed to strictly comply with the procedural requirements of § 23-111, the defense did not object below, and Brocksmith did not show that reversal is required under the plain error standard.      

Of Note: 

•  The Court distinguishes this case from those where it has “instructed the jury that it cannot make credibility findings solely on the basis that the witness is a police officer,” as well as from cases involving “improper gender bias,” on the ground that “there was a solid evidentiary foundation” for an inference that Villalta delayed reporting the assault because she feared exposure. 

• Judge Glickman concurs in the judgment, criticizing the majority’s view of the evidence as “strained” and explaining that he sees “no evidence” that Villalta delayed reporting because she was transgender.  Nonetheless, he writes that it would have been an “unwarranted intrusion” on the jury’s fact-finding role for the trial judge to have responded to the juror’s note “by forbidding the inference he described.”  Accordingly, he concludes that “the judge responded to the juror’s inquiry correctly.”       

Read the full opinion here.

Want to stop a car just because there’s a decorative frame around the license plate? Nope, gun and ammo suppressed!

Roosevelt Whitfield v. United States, No. 11-CF-1451 (decided September 18, 2014)

Players:  Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS for Appellant.  Motions judges Anthony Epstein and Robert Morin.

Facts:  Police stopped a car with Texas plates solely because a license plate frame obstructed the words “Lone Star State” at the bottom of the license plate.  The license plate number and state name were legible and unobstructed.  The driver of the car was Roosevelt Whitfield, a member of the U.S. Air Force who also worked as a bank security guard.  During the traffic stop, an officer saw a firearm holster inside the car in plain view.  Police asked whether Mr. Whitfield had any weapons, and when they thought he appeared nervous, they conducted a protective pat-down and again asked whether he had any weapons.  Mr. Whitfield disclosed that he had a .38 caliber handgun in the car.  Officers found the loaded firearm and extra ammunition and arrested Mr. Whitfield.  The firearm was registered in Virginia, where Mr. Whitfield lived.  Mr. Whitfield moved to suppress the gun and ammunition, arguing that the traffic stop was unlawful because his license plate complied with the relevant municipal regulations.  After the motion was denied, he entered a conditional plea to attempted CPWL, possession of an unregistered firearm, and unlawful possession of ammunition.  

Issue:  Do the D.C. Municipal Regulations—specifically,18 DCMR §§ 422.5 and 422.6—make it unlawful to have a license plate frame that covers any part of the license plate, even where the plate’s identifying information is not obscured?

Holding:  The municipal regulations do not impose a flat ban on all license plate frames, but rather prohibit only “those materials or attachments that obstruct the identifying information” on the license plate.  Slip op. at 20 (emphasis original).  The traffic stop was therefore illegal and the motion to suppress should have been granted.  

Of Note:

• The Court observed that the regulations appear to impose a flat prohibition against license plate frames if read literally, but after considering the rest of the regulatory context, as well as the legislative history and intent, it determined that the regulatory provisions were ambiguous.  It therefore applied the rule of lenity to resolve the ambiguity in favor of the appellant.

• In finding the regulations ambiguous, the Court placed great weight on the fact that a literal interpretation “would impact countless individuals who drive in the District of Columbia and who have license plate frames on their vehicles.”  Slip op. at 31.  See also id. at 3, 18-19.

• Although the D.C. Council could choose to enact legislation imposing a blanket prohibition against all license plate frames, it would have to use precise language that clearly indicated such legislative intent.  See Slip op. at 29-30 & n.22.  MW

Read full opinion here.

Beware: The trial court can instruct the jury on lesser included offenses during deliberations even though the parties neither requested the instruction nor addressed it in closing arguments

Cedrick Lorenzo Shuler v. United States, No. 13-CF-107 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Fisher, Senior Judge King.  Opinion by Associate Judge Blackburne-Rigsby.  Thomas T. Heslep for appellant.  Trial Judge William M. Jackson.  

Facts:  The trial court instructed the jury on two possible theories on the charge of first degree murder while armed: that Mr. Shuler intended to kill the decedent, or that Mr. Shuler’s intent to kill a bystander transferred to the decedent.  The jury soon asked in a note whether it could consider a lesser offense.  Based on the note, the trial judge informed the parties that he was inclined to instruct the jury on the lesser included charge of second degree murder while armed.  The government agreed with that approach, while the defense objected.   

Issue: Whether the trial court may instruct the jury on a lesser included offense after closing arguments when neither party requested the instruction.

Holding:  Yes.  So long as the timing of the instruction is not unduly suggestive and the defendant is not prejudiced by failing to address the lesser included offense charge effectively, the jury may be given a post-summation supplemental instruction on lesser included offenses.

Of Note:

• If you don’t want the jury to be instructed on lesser included offenses, you’re not out of the woods just because the instruction wasn’t given before deliberations began.  This case suggests two ways to avoid an instruction on lesser included offenses: 
• Timing:  Argue that the timing of the instruction is unduly suggestive.  Here, the instruction was given in response to a question by jurors and no more than four hours into deliberations.  Distinguish your case from these facts. 
• Prejudice:  Argue that the late instruction deprives your client of the opportunity to address the charge effectively or damages arguments you made during closing.  Mr. Shuler objected to the proposed instruction by saying that he would have argued differently during closing arguments had he known the instruction would be given, but the Court found this was insufficient to establish he would be prejudiced by the late instruction.  Mr. Shuler’s defense was that he wasn’t present during the shooting, and the defense did not address the elements of first degree murder during closing arguments.  Distinguish those facts when making a record about how you are prejudiced by a late instruction.

• A reminder: the trial court is entitled to act sua sponte in giving a lesser included instruction, so long as one of the parties affirmatively agrees with the instruction when it is suggested.  Slip op. at 18 (quoting Hawthorne v. United States, 829 A.2d 948, 952 (D.C. 2003)).  NG

Read full opinion here

DCCA announces a new rule for when harassing conduct can be charged as separate counts of stalking

Joy Whylie v. United States, No. 13-CO-480 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Thompson, Senior Judge King.  Opinion by Senior Judge King.  Andrew R. Szekely for appellant.  Trial Judge Robert I. Richter.  

Facts:  When Melody Parker began working at the Psychiatric Institute of Washington, she was warned that Joy Whylie had a penchant for making crank calls to the facility.  Ms. Whylie apparently proceeded to focus her attention on Ms. Parker, and made thousands of harassing phone calls to her between June of 2010 and February of 2011.  On July 16, 2010, Ms. Parker obtained a protective order that prohibited Ms. Whylie from contacting her.  A Superior Court judge entered a criminal stay-away order on December 3, 2010.  Ms. Whylie continued to call Ms. Parker.  In February of 2011, she also called Ms. Parker’s step-mother using “Spoofcard,” a service that made the call look as if it originated from Ms. Parker’s phone.  These phone calls made it appear to authorities that Ms. Parker was violating a separate no-contact order that she had with her step-mother, and led to the mistaken initiation of criminal prosecution against Ms. Parker in Maryland.   Ms. Whylie was convicted of, among other charges, four counts of felony stalking and one count of misdemeanor stalking.  

Issue: Under what circumstances does stalking behavior constitute a separate “course of conduct,” that can be charged as a unique violation of D.C. Code § 22-3133?  

Holding:  Stalking conduct that “could reasonably cause a victim to be frightened in a different way from previous or succeeding conduct (or not to be frightened at all) . . . should be deemed to constitute a separate course of conduct.”  Slip op. at 14.  In addition, “stalking that post-dates a no-contact order can be charged separately from conduct that precedes that court order.”  Id.

Of Note:

• The government was justified in charging the following acts as separate counts of stalking: 
• The more than 1400 calls to Ms. Parker at PIW between June 14 and July 16, 2010, could be charged as one count of misdemeanor stalking.  The conduct that followed the July 16 restraining order could be charged separately, as it constituted conduct post-dating a no-contact order. 
• The nearly 150 calls that Ms. Whylie made to Ms. Parker between December 4 and December 30, 2010, in violation of the December 3 no-contact order.  This conduct could also be charged separately, as it constituted conduct post-dating a no-contact order. 
• The calls that Ms. Whylie made to Ms. Parker’s step-mother between February 5 and February 28, 2011, using the Spoofcard service.   This conduct could be charged separately because they were “designed to engender a different type of fear than the previous calls caused,” slip op. at 17, and therefore “reflected a purpose different from appellant’s purpose in making the previous calls and to have ‘invaded a different interest,’” id. (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988)). 

• However, the government did err in dividing the following acts into two separate charges: 
• The more than 800 calls that Ms. Whylie made between September 12 and October 24, 2010. 
• The more than 700 calls that Ms. Whylie made between November 1 and December 2, 2010. 
• These groups of calls could be charged separately from the pre-restraining order conduct, but could not be charged separately from each other.  There was nothing distinguishing these month-long periods of stalking conduct other than that they each lasted a month, but the Court held that duration alone is insufficient to establish that a series of acts constitutes a separate course of conduct.  Slip op. at 18.  NG
•  Read full opinion here