Players: Associate Judges Glickman, Fisher, and Thompson. Opinion by Judge Fisher. Separate statement by Judge Fisher. Jennifer Wicks for Mr. Dickens. PDS for Mr. Fenner. Trial Judge: Jennifer M. Anderson.
Facts: Fenner, Dickens, and Pitts were charged with his first-degree murder while armed as well as conspiracy to commit first-degree murder while armed resulting from the shooting death of Stanley Daniels. Fenner was also charged with possession of a firearm during a crime of violence (PFCV). Pitts pleaded guilty to the conspiracy charge and testified against Fenner and Dickens at trial.
Two witnesses to the shooting testified that they saw a shooter wearing a light gray or white shirt and jean shorts. One, standing a block away, said the shooter was “[a]lmost bald” and had facial hair. Two other witnesses, including Pitts, said they heard Fenner say he shot Daniels.
The government requested an “aiding and abetting” instruction. Fenner’s attorney argued the jury should only be instructed on aiding and abetting as to Dickens, since the government’s evidence and charges pointed to Fenner as the principal. The judge denied the instruction because he said the witness identifications of the shooter were subtly different, and a reasonable juror could find Fenner was an accomplice to Dickens because “the murder was ongoing until they left the scene.”
At trial, counsel for Fenner argued to the jury that it should attribute any holes in the government’s case to the government, not to the defense: “[I]f there are any questions you want answered, ….witnesses you wish you heard from, like the other people supposedly up there in the car with [Dickens], evidence you wish you had…” This line of argument was interrupted by the prosecutor's objection, and the judge told the jury to “ignore that one argument about people that were up there that you didn’t hear from.”
During deliberations the jury specifically asked whether a person had “to have a gun in hand” to have committed first-degree murder while armed, to which the judge answered no. The jury ultimately acquitted Fenner of PFCV, but found both Fenner and Dickens guilty of conspiracy and first-degree murder.
After trial, Dickens discovered new evidence. While preparing a presentence report (PSR) for Pitts before the trial, the Court Services and Offender Supervision Agency (CSOSA) interviewed him, and he made statements that weren’t given to the defense until the trial was over. Some of the statements contradicted Pitts’ testimony at trial.
Issue 1: Was it error to instruct the jury on aiding and abetting as to Fenner where the government's theory and evidence identified him as the principal?
Holding: No. The Court found there was sufficient evidence to convict Fenner under an aiding and abetting theory.
Fenner had relied on Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991), which overturned a conviction where the aiding and abetting instruction was wrongly given because “[o]ne cannot aid or abet himself.” Fenner argued that the jury’s question and his acquittal on the PFCV charge showed the jury convicted him of aiding and abetting, and that such a charge was inconsistent with the government’s theory and the evidence presented at trial.
The Court disagreed, citing Inyamah v. United States, 956 A.2d 58, 62–63 (D.C. 2008) (holding that convictions may be sustained “where two correct theories of illegality are presented in the instructions and there is sufficient evidence to convict only on one”). Fenner had also argued, however, that Inyamah didn’t apply because the jury’s acquittal on the PFCV charge ought to rebut any presumption that the jury convicted him as a principal.
The Court dodged the PFCV question. Instead, it held the evidence sufficient in this case to have supported a conviction under either accessory or principal liability. The Court also noted that the jury’s conviction on the conspiracy count “provid[es] powerful evidence that it believed that the government had proven the requisite intent for aiding and abetting as well.”
Issue 2: Did the trial court commit reversible error in striking a portion of Fenner’s counsel’s closing argument?
Holding: No. The Court held that, without deciding whether the objected-to argument was improper, that because counsel was later able to “argue at length,” and argue that reasonable doubt could be based on the “lack of evidence in the case,” “there was no abuse of discretion.”
Issue 3: Did the government violate Brady or Superior Court Criminal Rule 33 in failing to turn over Pitts' statements in the PSR about Dickens until after Dickens’ trial?
Holding: No. On Brady, Dickens had argued that the government had an obligation to search for and acquire the statement even if it did not have it in its possession, and that CSOSA was acting as an agent of the prosecution in undertaking its investigation. The Court said that CSOSA assists the court in sentencing, not in prosecution. The Court also noted that the government “did not know the content of the report until it was able to access the PSR after trial.”
It held that though “there might be circumstances in which the government could be found to be in constructive possession of materials in the hands of CSOSA, those circumstances are not presented here.”
The government requested an “aiding and abetting” instruction. Fenner’s attorney argued the jury should only be instructed on aiding and abetting as to Dickens, since the government’s evidence and charges pointed to Fenner as the principal. The judge denied the instruction because he said the witness identifications of the shooter were subtly different, and a reasonable juror could find Fenner was an accomplice to Dickens because “the murder was ongoing until they left the scene.”
At trial, counsel for Fenner argued to the jury that it should attribute any holes in the government’s case to the government, not to the defense: “[I]f there are any questions you want answered, ….witnesses you wish you heard from, like the other people supposedly up there in the car with [Dickens], evidence you wish you had…” This line of argument was interrupted by the prosecutor's objection, and the judge told the jury to “ignore that one argument about people that were up there that you didn’t hear from.”
During deliberations the jury specifically asked whether a person had “to have a gun in hand” to have committed first-degree murder while armed, to which the judge answered no. The jury ultimately acquitted Fenner of PFCV, but found both Fenner and Dickens guilty of conspiracy and first-degree murder.
After trial, Dickens discovered new evidence. While preparing a presentence report (PSR) for Pitts before the trial, the Court Services and Offender Supervision Agency (CSOSA) interviewed him, and he made statements that weren’t given to the defense until the trial was over. Some of the statements contradicted Pitts’ testimony at trial.
Issue 1: Was it error to instruct the jury on aiding and abetting as to Fenner where the government's theory and evidence identified him as the principal?
Holding: No. The Court found there was sufficient evidence to convict Fenner under an aiding and abetting theory.
Fenner had relied on Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991), which overturned a conviction where the aiding and abetting instruction was wrongly given because “[o]ne cannot aid or abet himself.” Fenner argued that the jury’s question and his acquittal on the PFCV charge showed the jury convicted him of aiding and abetting, and that such a charge was inconsistent with the government’s theory and the evidence presented at trial.
The Court disagreed, citing Inyamah v. United States, 956 A.2d 58, 62–63 (D.C. 2008) (holding that convictions may be sustained “where two correct theories of illegality are presented in the instructions and there is sufficient evidence to convict only on one”). Fenner had also argued, however, that Inyamah didn’t apply because the jury’s acquittal on the PFCV charge ought to rebut any presumption that the jury convicted him as a principal.
The Court dodged the PFCV question. Instead, it held the evidence sufficient in this case to have supported a conviction under either accessory or principal liability. The Court also noted that the jury’s conviction on the conspiracy count “provid[es] powerful evidence that it believed that the government had proven the requisite intent for aiding and abetting as well.”
Issue 2: Did the trial court commit reversible error in striking a portion of Fenner’s counsel’s closing argument?
Holding: No. The Court held that, without deciding whether the objected-to argument was improper, that because counsel was later able to “argue at length,” and argue that reasonable doubt could be based on the “lack of evidence in the case,” “there was no abuse of discretion.”
Issue 3: Did the government violate Brady or Superior Court Criminal Rule 33 in failing to turn over Pitts' statements in the PSR about Dickens until after Dickens’ trial?
Holding: No. On Brady, Dickens had argued that the government had an obligation to search for and acquire the statement even if it did not have it in its possession, and that CSOSA was acting as an agent of the prosecution in undertaking its investigation. The Court said that CSOSA assists the court in sentencing, not in prosecution. The Court also noted that the government “did not know the content of the report until it was able to access the PSR after trial.”
It held that though “there might be circumstances in which the government could be found to be in constructive possession of materials in the hands of CSOSA, those circumstances are not presented here.”
On Rule 33, the Court held that Dickens was not diligent in seeking out Pitts’ statement to CSOSA as demanded by Rule 33, and so did not reach the other prongs of the test.
Issue 4: Did the trial judge abuse his discretion in failing to conduct further inquiry into a pre-trial complaint Dickens made about his counsel?
Holding: No. The Court credited the judge's determination that the only issue in the attorney-client relationship was a continuance Dickens disagreed with, where he found that “I can’t appoint [Dickens] new counsel because you couldn’t get the date changed.” Dickens’ attorney agreed that was the primary issue. But he had also said there “may be other matters” leading Dickens to desire a new lawyer.
The Court called this “may be” statement a “fleeting and vague reference” that the judge was not required to investigate after delving into Dickens’ main complaint about counsel. The Court also noted that Dickens “did not voice displeasure” with his counsel at subsequent pretrial hearings.
The Separate Statement: Judge Fisher wrote separately to address what he called “enduring mischief” in Brooks that he believes invites the “pointless exercise” of distinguishing between accomplices and principals. Instead, Fisher wrote, trial courts “should focus on whether the evidence shows that the defendant acted alone or with one or more persons.”
Issue 4: Did the trial judge abuse his discretion in failing to conduct further inquiry into a pre-trial complaint Dickens made about his counsel?
Holding: No. The Court credited the judge's determination that the only issue in the attorney-client relationship was a continuance Dickens disagreed with, where he found that “I can’t appoint [Dickens] new counsel because you couldn’t get the date changed.” Dickens’ attorney agreed that was the primary issue. But he had also said there “may be other matters” leading Dickens to desire a new lawyer.
The Court called this “may be” statement a “fleeting and vague reference” that the judge was not required to investigate after delving into Dickens’ main complaint about counsel. The Court also noted that Dickens “did not voice displeasure” with his counsel at subsequent pretrial hearings.
The Separate Statement: Judge Fisher wrote separately to address what he called “enduring mischief” in Brooks that he believes invites the “pointless exercise” of distinguishing between accomplices and principals. Instead, Fisher wrote, trial courts “should focus on whether the evidence shows that the defendant acted alone or with one or more persons.”
LT
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