Concussion Protocol: (Head) Injury + Manifest Risk of Grave, Long-Term (Head) Injury + Diagnostic Testing to Evaluate the Danger and Need for Treatment = Significant Bodily Injury

Cheeks v. UnitedStates (decided September 7, 2017)

Players: Glickman and Fisher, Associate Judges, Reid, Senior Judge. Opinion for the Court by Judge Glickman. Majority opinion by Judge Fisher (joined by Judge Reid). Dissenting opinion by Judge Glickman. PDS for appellant. Trial Judge Yvonne Williams.

Facts: Appellant was prosecuted for assault with significant bodily injury (ASBI) and other offenses in connection with the stabbing and beating of the complainant. The complainant testified that he was walking home one evening, when a man got out of a truck, accused the him of stealing a cell phone, and stabbed him with a knife. The complainant fled around the corner, where he encountered appellant and an unknown second man, who, rather than helping, punched the complainant in the face and head. The first, knife-wielding man caught up and stabbed the complainant from behind. The complainant eventually fell, whereupon appellant and the unknown second man kicked and stomped him.

When the three abandoned their attack, the complainant called the police and was taken to the hospital. The treating physician testified that upon arrival, the complainant required stitches, staples, and antibiotics for his four stab wounds, as well as pain relievers and diagnostic tests for internal injuries, including CAT scans that revealed a nasal fracture but no brain injury. The complainant was discharged four hours after arrival and had no follow-up treatment.

The government prosecuted appellant for armed ASBI under the theory that he aided and abetted the stabbing but also asked for an instruction on unarmed ASBI, in case it had not proved that appellant was aware of the stabber’s knife. Appellant argued that without the stab wounds, the complainant’s injuries were not serious enough to be “significant.” The government argued that the CAT scan made the non-puncture injuries “significant.” The court agreed and instructed on unarmed ASBI.

The court initially instructed the jury on the mens rea required to aid and abet armed ASBI but failed to instruct on the mens rea for aiding and abetting unarmed ASBI. During deliberations, the jury sent a note asking the court to “clarify instructions on the specifics of aiding and abetting, specifically for the [unarmed] assault w[ith] significant injury.” Appellant asked the court to instruct consistent with its armed ASBI instruction, that for the unarmed version, “regardless of whether the defendant [is charged] as an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with the intent or knowledge.” The court refused, stating that it was “in the instruction already” and instead instructed the jury that “Instruction 3.2 aiding and abetting applies to every offense with which the defendants are charged.” Unbeknownst to the parties, at the top of the jury’s note, someone had crossed out a question: “Does the aiding & abetting apply to [unarmed] assault w/ significant injury?”

The next day, after further deliberation, the jury found appellant not guilty of armed ASBI but guilty of unarmed ASBI.

Issue 1 (Opinion by Judge Glickman): Was there was sufficient evidence to instruct the jury on unarmed ASBI?

Holding 1: Yes. “[A]lthough a ‘significant bodily injury’ is one calling for professional medical treatment to prevent long-term physical damage or avert severe pain, it also may be an injury that poses a manifest risk of such harm and requires diagnostic testing to evaluate the danger and need for treatment – even if testing reveals that treatment is unnecessary.” Slip Op. at 13-14. The complainant’s treating physician described extensive bodily injuries that required a CAT scan to diagnose brain damage, broken bones, and internal injury. As in Blair v. United States, 114 A.3d 960 (D.C. 2015), this testimony supported a finding that the injuries required diagnostic testing to evaluate the need for treatment.

Issue 2 (Opinion by Judge Fisher): Did the trial court err in responding to the jury note asking it to “[c]larify instructions on the specifics of aiding & abetting[,] specifically for the [unarmed] assault w[ith] significant injury”?

Holding 2: No. The jury could have been seeking clarification on whether the theory of aiding and abetting applied to both armed and unarmed ASBI or, specifically, whether the mens rea for aiding and abetting applied to both offenses. By instructing that “Instruction 3.2 aiding & abetting applies to every offense with which the defendants are charged,” the court effectively addressed both issues. A reasonable jury would have applied the sentence about mens rea from Instruction 3.2 to unarmed ASBI, consistent with the defense’s proposal. The jury also received other, correct instruction on the mens rea required for unarmed ASBI.

Of Note: This opinion recognizes an exception to the rule that “significant bodily injury” excludes injuries for which treatment and diagnosis are ultimately unnecessary, in that “the victim would not suffer additional harm by failing to receive them,” Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013), where an injury poses manifest risk of grave, long-term injury and, as such, requires diagnosis to rule out the need for treatment. Going forward, whether an injury posed manifest risk of grave, long-term injury may depend on the type of injury involved. Notably, this case involved significant head trauma, and in deciding it, the court relies on two others (Blair and Quintanilla) that specifically addressed significant head trauma.

Judge Glickman dissents from the court's opinion as to Issue 2.

WC

Read the full opinion here.

Although One "Cannot Aid or Abet Himself," It's Not Error To Instruct on Aiding and Abetting Where Government's Theory Is That the Defendant Was The Principal

Dickens & Fenner v. United States (decided July 20, 2017)

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.”

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.”

LT

Read the 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.

Trial Issue Potpourri: Witness Mental Health, Partial Jurors, Sufficiency, Voluntariness of Statements, and More

Marcellus McCray, Lamonte Henson, Antonio Fortson, and Timothy Parker v. United States (decided March 10, 2016)

The Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by  Judge Reid. Stephen Domenic Scavuzzo for Mr. McCray, Thomas T. Heslep for Mr. Henson, William R. Cowden for Mr. Fortson, Peter H. Meyers for Mr. Parker. Trial Judge: Henry F. Greene.

Facts: This case involves multiple shootings that stem from a long-standing feud between two rival groups of young men from the Benning Terrace housing complex in Southeast D.C. Men from “the circle” and from “the Avenue” quarreled over drugs and respect. McCray, Henson, Fortson, and Parker, alleged members of “the circle,” were charged with two separate shootings which took place on May 30, 2011. The violence of the day culminated in the shooting death of Antwan Buckner.

After a two-month trial in 2012, the jury found guilty McCray of AWIKWA, voluntary manslaughter and associated weapons charges; Fortson guilty of voluntary manslaughter, ADW and weapons charges; Parker guilty of voluntary manslaughter and weapons charges; and Henson guilty of CPWL.

Issue 1: Did the trial court deny Fortson the Sixth Amendment right to an impartial jury when it allowed a juror to continue serving without properly investigating a claim that the juror had “pre-decided the case at the outset of the trial, and possibly spoken about her decision with even more jurors”?

Background: On a Thursday afternoon during deliberations, the judge received two jury notes from the foreperson, one of which requested a “private conversation” about an allegation that a specific juror “had their mind made up on the first week,” while the other note indicated a deadlocked jury. The judge excused the jury for the weekend. The following Monday, the parties met with the foreperson who clarified that the juror in question had made up his/her mind in the “first week of trial” when the juror expressed the opinion in a single conversation with the foreperson, out of the presence of the other jurors. After much discussion among the parties, and without objection from any defense counsel, the trial court instructed the foreperson to not discuss the matter with other jurors rather than seek further information as to the potential impact of the juror’s thoughts.

The entire jury was brought back into the courtroom where the judge addressed the “hung note.” Within the judge’s instruction, it acknowledged the difficulty of the jury’s job, asked the jury to maintain civility and an open mind, and specifically charged the jury:

Now, if any of you feel for any reason that you have not been able to, or are not able to follow the instructions I have given you, please let me know in a written note, but do not discuss any personal concerns you may have in this regard with any of the other jurors. You can send me a note in writing if you have a concern about whether you can follow the instructions I have given you.

Defense counsel did not object to the judge’s instructions.

Fortson argued that the judge proceeded too cautiously in its investigation of the juror’s misconduct and that it abused its discretion by only instructing the jurors to advise the court if they “were unable to follow the court’s instructions.”

Holding 1: The judge did not abuse his discretion in handling the juror’s misconduct because (1) the conversation between the foreperson and the juror happened during the first week of the two-month trial; (2) the conversation did not occur with any other juror present; (3) the jury was apparently deadlocked on only one count; and (4) the judge’s instruction was “thorough and balanced.”

Issue 2: With respect to McCray, Fortson, and Parker, did the trial court err by giving the jury urban gun battle and aiding and abetting instructions pertaining to a murder count in the indictment, and did this constitute a constructive amendment?

Holding 2: No. First, any potential error in providing the jury with both the urban gun battle and aiding and abetting instructions in conjunction with the murder count would have been harmless. The government did not make an aiding and abetting argument to the jury. The evidence was sufficient to convict the defendants of voluntary manslaughter as co-principals. The record reflects thoughtful consideration by the jury in convicting Parker, Fortson, and McCray of manslaughter and acquitting Henson.

Second, there was no constructive amendment because “the prosecution did not rely at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment” by stressing an urban gun battle theory and not arguing aiding and abetting during closing.

Issue 3: McCray, Fortson, and Henson independently raise sufficiency claims.

• McCray: Was there sufficient evidence to convict McCray of AWIKWA, its related PFCV count, and also of separate murder count?

• Holding: Yes. McCray claims that the government failed to prove the specific intent to kill for AWIKWA because the government did not establish the distance between the shooter and the individuals who were assaulted. Case law “does not require the government to prove specific intent by establishing the exact distance between the shooter and the unknown persons who were assaulted.” The DCCA affirmed primarily on McCray’s own statements to witnesses that he had been shooting at people.  The Court also found sufficient evidence for murder given that, immediately after the shooting, McCray was seen walking in an area where shell casings were later found.

• Henson: Was there sufficient evidence to convict Henson of CPWL?

• Holding: No. The government failed to prove that Henson carried a “gun with a barrel less than 12 inches in length.” No witness could identify the type of firearm Henson possessed. Testimony that Henson used handguns on other occasions did not suffice.

• Fortson: Was there sufficient evidence to convict Fortson of ADW and PFCV?

• Holding: Yes. A witness testified that he saw Fortson, gun in hand, go behind a building where “a whole lot of shooting” took place. After the shooting, Fortson said “my bad” or “my bag.” This evidence was sufficient.

Issue 4: With respect to Parker and McCray, did the trial court commit reversible error by precluding the defense from challenging the credibility of a testifying former co-defendant by denying an opportunity to cross-examine or retain an expert on the witness’s mental disabilities?

Background: Curtis Faison initially was a co-defendant in the case, but pleaded guilty during the trial and agreed to testify on behalf of the government. Defense counsel collectively obtained Faison’s juvenile records, which revealed a 2006 psychiatric evaluation which showed a diagnosis of bipolar disorder. Trial counsel also proffered a recent episode in which Faison threw feces and urine at a guard at the D.C. Jail. Parker sought an expert to evaluate Faison and determine the impact of his mental illness on credibility.

During the ensuing litigation, the trial court admonished the government for putting a person with “serious questions regarding credibility, in terms of his history, on the stand in the last minute in the trial” when “the defense has no chance to investigate him.” The judge also showed skepticism in Faison’s credibility, but recognized the “powerful” nature of his testimony if the jury were to believe him.

The judge ultimately denied Parker’s request.

Holding 4: Yes, the trial court did err, but only enough to warrant a remand. The DCCA stated:

[I]n light of defendant’s right to present a defense, and given the seriousness of the bipolar disorder and the proffer about Mr. Faison’s recent episode of throwing urine and feces at a prison guard, we believe Mr. Parker and Mr. McCray were at least entitled to an opportunity to show what an expert might contribute in an effort to determine any impact of Mr. Faison’s mental disabilities on his credibility.

On remand, McCray and Parker will have the ability to call experts. The judge will then determine “whether at the time of his trial testimony, Mr. Faison’s mental disabilities seriously impacted his credibility.” Applying the Kotteakos standard for harmless error, the judge will either affirm the convictions or order a new trial.

Issue 5: Did the trial court err in failing to suppress McCray’s videotaped statement on voluntariness grounds?


Holding 5: The trial court did not err because McCray’s statements were voluntary. At the time of his statement, (1) McCray was seventeen years old; (2) detectives threatened that his family would face eviction; and (3) detectives threatened that his mother, brother, and sister – who were in the room where a gun was found – would be “locked up.” The Court reasoned that McCray’s admission that he participated in one of the shootings was not the product of coercion.

Issue 6: Did the trial court err in failing to grant McCray’s severance motion so that he could be tried with only co-defendants Hebron and Mungo, who were ultimately tried separately, and were the only other defendants charged with AWIKWA in Counts 8 and 9 of the indictment?

Holding 6: No. McCray argued that evidence of a conspiracy was “very weak” and that the evidence against the other defendants with whom he was tried “was much stronger” than the evidence against him. The DCCA rejected this argument and noted that McCray was tried with three individuals who were also charged with the murder of Antwan Buckner. JW

Read full opinion here.

The (new) law of unintended consequences: DCCA announces a new test for aiding and abetting

Note: Last November, the DCCA published a 232-page opinion deciding the consolidating appeals arising from a nine-month jury trial in 2008-2009.  The Court addressed multiple issues (it's never a good sign when an opinion has an index); we'll cover the highlights in two installments.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015).

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from the appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2006 murder of James Taylor and assault of Bernard Mackey. (pp. 5-6).

Mr. Taylor and Mr. Mackey were shot when several Crew members opened fire upon a third person, Omar Harrison.  Mr. Harrison had been in a fight with Ashley Tyndle, the girlfriend of Crew member Alphonce Little. Mr.  Harrison had allegedly slapped Ms. Tyndle and challenged her to “go get” Mr. Little.  When news of the fight and the challenge spread, Saquawn Harris and Michael Tann converged on Mr. Harrison from different directions and opened fire.  After the first wave of shots, Robert Foreman, another alleged Crew member (who was not a defendant in this trial) who was standing across the street and away from Harris and Tann, opened fire.  Mr. Taylor and Mr. Mackey were shot standing near the truck that Mr. Harrison used to narrowly escape.  (pp. 10-11). 

Mr. Taylor died from a single gunshot to the head.  Alphonce Little testified that Mr. Taylor was not shot until after Mr. Harris had run out of bullets.  Mr. Little further testified that after the incident, Mr. Foreman claimed credit for killing Taylor.  There was no evidence linking Mr. Mackey’s wounds to any particular shooter.  The government conceded that neither Mr. Harris nor Mr. Tann was aware of Mr. Foreman’s presence either before or during the shooting.  Mr. Foreman had decided to join the attack upon seeing and/or hearing Mr. Harris and Mr. Tann open fire.  (pp. 11-12, 52-53, 68). 

Mr. Harris and Mr. Tann were indicted for the first-degree premeditated murder while armed of Mr. Taylor and the assault with intent to kill while armed (AWIKWA) of Mr. Mackey.  At trial, the government argued that Mr. Harris and Mr. Tann either were principals or had aided and abetted the commission of the offenses.  Regarding the latter theory, the government argued that Mr. Harris and Mr. Tann were guilty by intentionally associating themselves with the actual shooter at the time of the shootings and firing at Omar Harrison, thereby aiding the shooter.  (pp. 53-54).

The trial court refused Mr. Harris and Mr. Tann’s request to instruct the jury that, assuming Mr. Foreman had fired the shots that killed Mr. Taylor and wounded Mr. Mackey, they could only be guilty of aiding and abetting if they knew of Mr. Foreman’s presence and knew that by firing first, they were helping or inciting him to commit murder and assault.  Mr. Harris and Mr. Tann were further prevented from arguing that their ignorance of Mr. Foreman’s presence precluded their guilt as aiders and abettors.  On the contrary, the trial court instructed the jury that Mr. Harris and Mr. Tann could be convicted, despite their ignorance of Mr. Foreman’s presence, as long as they knowingly associated in the commission of the crime.  The jury found Mr. Harris and Mr. Tann guilty of the murder of Mr. Taylor and the AWIKWA of Mr. Mackey.  (pp. 54-55).

Issue: “[W]hether the aider and abettor must know of the presence and conduct of the specific principal and form the intent to help him or her with the commission of his or her crime, as opposed to [merely sharing] in the mens rea required to commit the crime itself.”  (pp. 62-63). 

Holding: No. The aider and abettor need not know of the presence of the principal in order to be guilty under an aiding-and-abetting theory as long as the aider and abettor, while sharing the mens rea of the principal, foreseeably incited acts by a principal who shared in their “community of purpose.”  “Community of purpose” need not involve an actual agreement to commit a specific crime, as long as there is some understanding, even if tacit, connecting the accomplice(s) and the principal.  (pp. 74-75 & n.27).

Here, the evidence allowed the jury to conclude that Mr. Harris, Mr. Tann, and Mr. Foreman shot at Mr. Harrison with the same intent and purpose: to kill him for his transgressions against an associate of the alleged Crew.  Mr. Harris and Mr. Tann purportedly knew that firing at Mr. Harrison would elicit the support of other Crew members, like Mr. Foreman, who shared the same basic interest in retaliating against Mr. Harrison.  Thus, Mr. Harris and Mr. Tann foreseeably encouraged a group that included the principal to attack Mr. Harrison.  (pp. 75-77). 

While the trial court erred by failing to require the jury to find a “community of purpose” between accomplices and principal and foreseeability of the principal’s conduct, this error was harmless.  Given that the jury found that Mr. Harris and Mr. Tann (and possibly Mr. Foreman) were engaged in a conspiracy, one of the alleged objectives of which was to kill persons with interests contrary to the conspirators, there is no reasonable possibility that it would have found that the men did not share a common purpose and design to murder Omar Harrison. (pp. 87-88).

Of Note: 

• The portion of the opinion dealing with this issue should be studied with care, as the test for aiding and abetting recognized by the majority —shared mens rea, “purposive intent,” foreseeability, and “community of purpose”— is open-textured and its applicability to any case is necessarily fact bound.  

• The majority relied heavily on the facts, outcome, and reasoning of several cases in deriving the test applied in this case.  (pp. 60-72).  Attorneys grappling with the majority’s test in the future should also study those cases carefully.  

•  The Court separately addressed sufficiency of evidence to prove aiding and abetting earlier in the opinion, when considering whether the government had proven that Michael Tann had aided and abetted the murder of Terrence Jones, while Antonio Arnette simultaneously aided and abetted Mr. Tann’s armed robbery of Richard Queen. Although the court relied on the novel aiding-and-abetting theory to affirm Mr. Tann and Harris’s convictions for the Taylor/Mackey incident, its approach to analyzing aiding and abetting in the Jones/Queen incident was murkier and at times contradicted the Taylor/Mackey approach.

In 2004, Mr. Jones and Mr. Queen were beaten and shot after trying to mediate a conflict between Crew members Donald Matthews and Kyara Johnson.  When word of Mr. Jones and Mr. Queen’s interference reached Mr. Arnette, Mr. Arnette sent Lannell Cooper toward Mr. Jones and Mr. Queen, telling him to bring his gun.  Mr. Cooper pointed his gun at Mr. Jones and said words to the effect of “pat [their] pockets.”  Mr. Arnette punched Mr. Jones and patted his pockets.  Mr. Cooper shot Mr. Jones once, when Mr. Jones resisted, and shot Mr. Jones again, killing him, as Mr. Jones tried to crawl to safety.  At about the same time, Mr. Tann and others beat Mr. Queen and went through his pockets.  Mr. Tann shot Mr. Queen in the back with a gun that he picked up off of the ground as Mr. Queen tried to run away.  Mr. Queen testified that his assailants took cash and cigars.  (pp. 8-9).

The court affirmed Mr. Tann’s conviction for aiding and abetting Mr. Cooper’s murder of Mr. Jones (and Mr. Cooper’s possession of a firearm during the murder) because Mr. Cooper had coordinated the pat-down of both Mr. Jones and Mr. Queen and the attacks on both men had happened close enough to each other (about ten feet apart) to allow the jury to infer a “knowingly organized (if not verbally articulated) venture” to allow the attackers to “better subdue, rob, and eventually shoot both [men].”  (p. 38-39).  Mr. Tann had aided in the venture by subduing Mr. Queen.  (pp. 39-40).  Thus, arguably, Mr. Tann’s conviction depended on evidence of his intentional participation in the joint venture, as opposed to foreseeably aiding a separate attack on Mr. Jones.  (p. 38) (noting “powerful evidence of a joint and coordinated effort”; contrasting with Mr. Tann’s argument that the attacks were distinct).  The court similarly affirmed Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s robbery of Mr. Queen.  (pp. 46-47); see (p. 46) (“it was reasonable for the jury to have viewed the entire attack (including the robbery) as a coordinated venture”).  

However, the court vacated Mr. Arnette’s conviction for aiding and abetting the “while armed” element of Mr. Tann’s robbery of Mr. Queen, as well as Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s possession of a firearm during the robbery because the evidence did not show that Mr. Arnette had “meaningful notice” that Mr. Tann would use a gun to complete his attack on Mr. Queen.   (pp. 47-49).  (Mr. Tann had picked up the gun only after the robbery began.)  Seemingly contradicting its own Taylor/Mackey analysis, the Court held that while use of a gun may have been reasonably foreseeable to Mr. Tann, “foreseeability alone is insufficient to support such a judgment of conviction under an aiding-and-abetting theory of liability.”  (p. 47).  The Court only confused matters further by suggesting later in the opinion that a different result might follow if Mr. Arnette had known that “Tann was using a gun to carry out the robbery,” and “decided to proceed with his involvement in the attack on Terrence Jones and Queen” anyway.  (p. 49).  This seems to imply that reasonable foreseeability is sufficient for aiding and abetting. WC

Read the full opinion here.