Current Model Instruction on Mens Rea for Aggravated Assault is Incorrect: Extreme Indifference to Human Life Required

Marques An’Rico Johnson v. United States, No. 13-CF-929 (Decided June 18, 2015)

Players:  Chief Judge Washington and Associate Judges Fisher and Thompson.  Opinion by Judge Fisher.  Richard S. Stolker for Mr. Johnson.  Trial Judge: Heidi M. Pasichow.

Facts:  As Timothy Conrad and Danisha Kenner exited an apartment building on November 17, 2011, Mr. Johnson fired multiple shots in rapid succession at Mr. Conrad, striking him seven times. Mr. Johnson fled to an apartment where police later recovered a 9-millimeter handgun, loaded with bullets labeled “WIN .380 auto,” the same notation as was one seven shell casings recovered at the scene.  DNA testing revealed Mr. Johnson’s DNA on the recovered gun.  Mr. Johnson was convicted of, inter alia, aggravated assault.

Issue 1:  Whether the trial court committed plain error in instructing the jury that it could find Mr. Johnson guilty of the crime of aggravated assault if it found that he “was aware that his conduct created an extreme risk of serious bodily injury to [Mr.] Conrad, but engaged in that conduct nonetheless.”  

Holding:  No, BUT, the DCCA, assuming error, strongly signaled that this instruction, which is taken from the 2012 edition of the "Red Book" model jury instructions, is incorrect in light of Perry v. United States, 36 A.3d 799 (D.C. 2011).  In Perry, the Court found that D.C. Code § 22-404.01 (a)(2) requires that a person not only intentionally and knowingly engages in conduct that creates a grave risk of serious bodily injury, but also that he must do so “under circumstances manifesting extreme indifference to human life.”  Perry, 36 A.3d at 817.

However, in this case, and applying plain error review, the Court found no plain error because the facts of this case “powerfully demonstrate” a violation of the other type of aggravated assault, see D.C. Code § 22-404.01 (a)(1), a knowing or purposeful effort to cause serious bodily injury, meaning that “extreme indifference to human life” would not come into play and that Mr. Johnson had failed to prove prong three of the plain error test (whether the error affected "substantial rights"). 

Other Issues: (1) The trial court did not abuse its discretion in refusing to compel the government to allow Mr. Johnson’s expert to independently test the recovered firearm because the government did not actually prevent such an examination and it was not clear that trial counsel ever requested such compulsion from the trial court; (2) the trial court’s refusal to allow Mr. Johnson to impeach Mr. Conrad with prior juvenile adjudications neither violated Mr. Johnson’s Sixth Amendment rights, because the adjudications did not go to bias, nor constituted an abuse of discretion, because such impeachment would have been cumulative and Mr. Conrad’s testimony was not central to the government’s case; and (3) the trial court did not abuse its discretion in permitting the government’s DNA expert to use a demonstrative slide show when testifying.

Practice Note: Trial lawyers should object to the language in the model instruction as it is and request it be modified to the language Johnson suggests. Appellate lawyers should keep an eye out for cases in which this might have mattered, since the Johnson court found no plain error for case-specific factual reasons. CP

Read full opinion here.