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.

Wondering whether injuries amount to “significant bodily injury” for felony assault? Read this case!

Belt v. United States (decided December 8, 2016).

Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Blackburne-Rigsby.  Daria J. Zane for C.B.  Trial Judge: Franklin Burgess.  

Summary:  This case stems from a fight between C.B. and two of her former friends, Cynthia Spenard and James Tolbert III.  At trial, C.B. was accused of assaulting Mr. Tolbert with a meat cleaver, causing an inch-long laceration to his forehead and an inch-and-a-half long laceration to his shoulder.  The main issue on appeal was whether these injuries amount to “significant bodily injury,” as required for a felony assault conviction.  In this opinion, the Court seeks to clarify the District's case law on what constitutes sufficient evidence to sustain a felony assault conviction.  Here are some highlights:

• The original draft of the bill creating the offense of felony assault used the language “bodily injury.”  In response to comments from PDS, the Council adopted the term “significant bodily injury,” to incorporate injuries “more serious than mere bodily injury such as slapping but less serious than serious bodily injury.”  Slip op. at 8 (insertion and quotations omitted).  The committee report on the bill states that the Council’s intent was for the crime of felony assault to cover assaults that result in “significant (but not grave) bodily injury.”  Id. at 9 (quotation omitted). 

• “[T]here are two independent bases for a fact finder to conclude that a victim has suffered a significant bodily injury: (1) where the injury requires medical treatment to prevent ‘long-term physical damage’ or ‘potentially permanent injuries’; or (2) where the injury requires medical treatment to abate the victim’s ‘severe pain.’”  Id. at 11.

• The relevant fact is not whether the individual receives medical attention “but whether medical treatment beyond what can administer himself is immediately required to prevent ‘long-term physical damage, possible disability, disfigurement, or severe pain.'” Id.  at 12 (quoting Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015) (emphasis added in Belt). 

• “[W]e can summarize the definition of ‘significant bodily injury’ as follows: to qualify as ‘significant bodily injury,’ the nature of the injury itself must, in the ordinary course of events, give rise to a ‘practical need’ for immediate medical attention beyond what a layperson can personally administer, either to prevent long-term physical damage or to abate severe pain.”  Id.

• When the medical treatment prescribed or administered, such as stitches, is something that can be performed only by trained medical professionals, the fact finder may be able to infer from the course of treatment itself that immediate medical attention was “required,” thereby establishing that the injury constituted a “significant bodily injury.”  Id. 

• The government is not required to prove through medical or other expert witnesses that the immediate medical attention that the victim received was actually necessary. 

• Evidence of the victim’s injuries and the victim’s reactions to them may allow the fact finder to infer based on “common sense” and every day experience that the victim was in “severe” pain.

• Applying these principles to Mr. Tolbert’s injuries, the Court reasoned that he sustained significant bodily injury: Mr. Tolbert testified that he felt disoriented and had a ‘little black out spell’ from the strike; he experienced significant blood loss; and after being taken to the hospital immediately after the incident, he received stitches for his forehead wound and “strips” for his shoulder wound.  NG

Read full opinion here.

Data from ankle monitor and treatment for a concussion were sufficient to establish robbery and assault with significant bodily injury.

Stephon Brown v. United States (decided September 1, 2016).

Players: Associate Judges Thompson and Beckwith, Senior Judge King. Opinion by Thompson. Sicilia Englert for Mr. Brown.  Trial judge: Todd E. Edelman

Facts: On December 15, 2014, while he was attempting to make a food delivery for a restaurant, two men attacked Gregory Dowell by repeatedly punching and kicking him in the head and body. They then took his phone, wallet, and vest, and one man rode away on Mr. Dowell’s bicycle. After Mr. Dowell reported the incident, police ran a check to determine if anyone’s GPS monitoring device was in the area at the time of the incident. Through that check, police learned that Stephon Brown had been in the area. Police then went to his house, where they located Mr. Dowell’s bicycle. 

Due to the attack, Mr. Dowell experienced headaches but declined to go to the hospital despite being urged to go by both the paramedics who responded to the scene and a friend, who was a nurse. Mr. Dowell did not want to go because he did not have insurance. But five days later, when he was still experiencing pain, he went and was diagnosed with a concussion and underwent a CAT scan. 

The jury convicted Mr. Brown of robbery and assault with significant bodily injury. 

Issue 1:  Was the evidence sufficient to establish Mr. Brown committed the robbery?

Holding: Yes. Mr. Brown admitted there was evidence to place him in the area of the robbery close to the time it occurred and he admitted that the stolen bicycle was found at his house only a few hours after the robbery, but claimed he found an abandoned bike and rode it home. The court ruled there was sufficient evidence to connect him to the robbery. Mr. Dowell testified that two men walked past him around 8:50 pm on North Capitol Street, SE, between T Street and Seaton Place. The two men then returned, attacked him, and fled north on North Capitol before making a right turn. 

Mr. Brown’s main contention was that the GPS data was inconsistent with the complainant’s testimony. The court disagreed. One, the complainant testified he did not see anyone else in the area at the time. Two, though the tracking data showed that he moved farther south down North Capitol than the complainant had said, “the [complainant’s] testimony did not eliminate the possibility that the attackers did precisely that while [the complainant] was distracted” trying to make the food delivery. And three, testimony established that the GPS monitoring data generally are accurate within a fifty-foot radius of each point plotted on a map, allowing the jury to conclude that Mr. Brown was even closer to the location of the assault than the plotted points indicated. Those facts, plus the bike being found at his house shortly after the robbery, established sufficient evidence to support the jury’s verdict for robbery. 

Issue 2: Was the evidence sufficient to establish that Dowell suffered significant bodily injury?

Holding: Yes. To prove significant bodily injury there must be an injury “that requires hospitalization or immediate medical attention.” The complainant sustained “a lot of rapid blows” to the head, and suffered a laceration on his forehead and ears, and multiple bright red areas on his scalp, neck, and ears. He testified that afterwards, he felt “loopy” and “dazed,” that his head hurt, and that the pain lasted for several days. He finally went to the hospital after several days, even though he did not have insurance, because a friend offered to pay for his medical expenses. At the hospital, he described his pain as “unacceptable” and a “constant headache.” He was diagnosed with a concussion. The treating doctor testified that it is “important for people with concussions to seek medical treatment” and that doctors “want anyone who has a head injury to come in and be evaluated[.]” Also, the doctor testified she ordered a CAT scan, which is the typical test for anyone complaining of a head injury. The doctor admitted, however, that some people who do not follow the recommended course of treatment for a concussion “may do okay on their own.”

Referring to this case as “perhaps a closer one than we have seen in some previous cases,” the Court nonetheless concluded the evidence was sufficient to establish significant bodily injury. The Court cited the number of blows to the head, the amount of pain in the moment, the amount of lingering pain, and the recommendations that Mr. Dowell seek medical treatment immediately. Further, when he did go to the hospital, he did not receive a “mere diagnosis,” but underwent treatment, including a CAT scan and was prescribed limitations on his activities to avoid worsening his symptoms. Lastly, the Court noted that the doctor testifying someone might have “do[ne] okay” on his own” does not undermine the seriousness of the injury when it is one that otherwise would typically require “immediate medical attention” by a professional with “true medical expertise.” BM

Read full opinion here.

A court should grant a motion to sever if a co-defendant would provide “officially exculpatory” testimony.

Omar Rollerson and Rolita Burns v. United States (decided December 17, 2015).

Players: Chief Judge Washington, Judge Easterly, Senior Judge Belson. Opinion by Chief Judge Washington. PDS for Mr. Rollerson. Mindy A. Daniels for Ms. Burns.

Facts: Omar Rollerson and Rolita Burns were prosecuted together for two separate events that the government contended stemmed from Ms. Burns’ attempt to determine who had slashed the tires on her car. The first incident, which the Court labeled, “The Elvans Road Incident,” began in the early hours of June 18, 2012. Stefanie Harrington got into an argument with Ms. Burns when Ms. Harrington believed Ms. Burns had accused her of slashing the tires. They continued arguing until Mr. Rollerson intervened, but then the group left the apartment and went outside to the parking lot. When Mr. Rollerson saw that Ms. Harrington had a knife, he retreated and then Ms. Harrington tossed it. But Mr. Rollerson picked it up and approached Ms. Harrington. An unidentified man stopped Mr. Rollerson from getting closer to Ms. Harrington, so he threw the knife at her, hitting her arm. Ms. Burns and Ms. Harrington continued yelling at each other, and Robert Teamer heard Mr. Rollerson say, “[F]orget this, I’m about to go get that,” which he believed to be a reference to a gun that Mr. Rollerson had mentioned earlier. Ms. Harrington and Mr. Teamer then returned to Ms. Harrington’s apartment.

Shortly thereafter, a man “busted inside the door” and said, “I’m going to blow a hole in you guys.” Mr. Teamer said that this man then hit him in the nose with the gun and left. At trial, Ms. Harrington identified Mr. Rollerson as the person who hit Mr. Teamer, but Mr. Teamer testified that Mr. Rollerson, as he appeared at trial, did not look like the man who came to Ms. Harrington’s door the night of the burglary.

The second incident, which the Court identified as “The Bowen Road Incident,” occurred later that same day, around 2:00 p.m. Ms. Burns got into a verbal altercation with Jasmine Patterson over whether Ms. Patterson had slashed Ms. Burns’s tires. As the argument continued, Mr. Rollerson said to Ms. Burns, “F that, we’re going to get Nellie and them,” which Ms. Patterson believed meant they were going to go get a group of people to fight them. Mr. Rollerson and Ms. Burns left and drove away in a van. Ms. Patterson, with several other people, walked towards Ms. Patterson’s grandmother’s house. Along the way, Ms. Patterson saw the van return and Mr. Rollerson and Ms. Burns exit with a group of five girls, whom Mr. Rollerson referred to as his nieces. They caught up to Ms. Patterson, threw her to the ground, and began to beat her, including hitting her with a log. Ms. Patterson’s boyfriend attempted to approach, but Mr. Rollerson warned him to not to get involved or else he was going to “get that out of the car and smoke [him].” Ms. Burns, Mr. Rollerson and the five other girls left and Ms. Patterson got up and went to her grandmother’s house, where her grandmother called the police. After speaking with police, Ms. Patterson went to the hospital by ambulance to receive treatment for a cut over her right eye that required nine stitches.

The jury convicted Mr. Rollerson of the following charges for the Elvans Road incident: first-degree burglary while armed, ADW, two counts of possession of a firearm during a crime of violence, and felony threats. For the Bowen Road incident, the jury convicted Mr. Rollerson of assault with significant bodily injury and felony threats. Though tried together, Ms. Burns only faced charges for the Bowen Road incident and the jury convicted her of assault with significant bodily injury.

Issue 1: Whether the trial court erred in denying Mr. Rollerson’s motion to sever his trial from Ms. Burns’s trial in order to be able to call her as a witness to testify he was not involved in the Elvans Road Incident?

Holding: Yes. While a trial court has discretion whether to grant a motion to sever, a court must grant such a motion if a defendant can show there will be “manifest prejudice” from being tried jointly. Under Jackson v. United States, 329 A.2d 782 (D.C. 1974), when a defendant wants to sever a trial from a co-defendant in order to have that person testify in his defense, the court should grant the motion if it has been established that the co-defendant is 1) likely to testify and 2) the testimony will be “substantially exculpatory.” Here, the proffer was that Ms. Burns would testify that Mr. Rollerson was not present for the Elvans Road Incident. Although the trial court concluded that she was likely to testify and that her testimony would be “officially exculpatory,” it declined to the grant the motion mainly because the government offered to enter into a stipulation with the defense about what her testimony would have been. The Court of Appeals held that was an abuse of discretion. First, a stipulation is not a valid substitute for live testimony because it forecloses the jury’s ability to hear a witness and determine credibility. The Court stated that only in “very limited circumstances” can a party be forced to accept a stipulation in lieu of live testimony or tangible evidence. This was not such a case. Second, the Court emphasized that judicial administration and concerns for judicial efficiency do not outweigh a defendant’s right to a fair trial and are not valid reasons by themselves to deny a motion to sever. And third, the Court of Appeals concluded that when the trial court found that Ms. Burns’s testimony would have been “officially exculpatory,” that was sufficient to meet the requirement from Jackson that her testimony would have been “substantially exculpatory.” Once the court determined that Ms. Burns was likely to testify and that her testimony would have been “officially exculpatory,” the court should have granted the motion. Failure to do so was an abuse of discretion, resulting in reversal of Mr. Rollerson’s convictions from the Elvans Road Incident.

Issue 2: Whether the trial court erred in denying Ms. Burns’s motion to sever the Elvans Road incident from the Bowen Road incident?

Holding: No. Ms. Burns contended the two incidents should have been tried separately because otherwise she would suffer undue prejudice since most of the charged conduct related only to Mr. Rollerson and she was not even charged in the first incident. However, the Court of Appeals determined the trial court did not abuse its discretion. The Court reasoned that though she was not charged for both incidents, she played a central role in both, as the government’s theory was it was her desire to learn who had slashed her tires that led to both incidents. While a trial court should sever charges when one defendant played a “de minimis” role in one incident as compared to another, the Court stated that simply the fact Burns was not charged did not mean her role was “de minimis” in the Elvans Road Incident. Also, the Court said that the trial court “properly protected Burns from manifest prejudice” by giving the jury precise instructions, both during the trial and during jury instructions, on how to use the evidence that had been presented against each defendant and that the evidence from Elvans Road only went to certain counts.

Issue 3: Was the evidence sufficient to convict both Mr. Rollerson and Ms. Burns of assault with significant bodily injury?

Holding: Yes. To establish “significant bodily injury,” there had to be evidence of an injury that would require “hospitalization or immediate medical attention.” The Court determined that Ms. Patterson’s injuries met that definition due to her suffering the injuries in a “violent group attack” where she was pushed to the ground, stomped, punched in the face, and hit in the head with a log. There was evidence she was a “bleeding mess,” and went to the hospital to receive nine stitches. Also, the government presented to the jury photographs of her injuries and her medical records.

Of Note:

• This is a good case to use any time the government attempts to foreclose the defense from calling a witness or introducing evidence by offering a stipulation. The Court of Appeals very clearly indicates a defense does not have to accept such an offer, and that a trial court should not use the offer by itself as a reason to deny a defense motion. 

• A trial court should grant a motion to sever if there has been a showing the co-defendant would be likely to testify, and that the testimony would be “substantially exculpatory.” This case indicates that the trial court does not have to use those exact words so long as it is established that the testimony meets the standard. However, when moving to sever from a co-defendant on the basis of wanting the co-defendant to testify, it is likely a good idea to use the exact language from Jackson in order to avoid any confusion. This Case reinforces that once a trial court determines that the two Jackson factors have been met, a trial court should grant the motion. 

• Similarly, if trying to sever a trial from a co-defendant when there are separate incidents, just the fact your client was not charged in one of the incidents is not sufficient by itself to establish your client had a “de minimis role.”

• There was a fourth issue raised – whether the court should have merged Mr. Rollerson’s convictions for PFCV. The Court declined to reach that issue after ruling in his favor on issue one and reversing those convictions.  BM

Read full opinion here.