Juries need to be properly instructed pursuant to Carrell to decide the difference between a true threat and a question.

Malloy v. United States (decided June 21, 2018)

Players: Associate Judges Easterly and McLeese, and Senior Judge Ferren. Opinion by Judge Ferren. Dissent by Judge McLeese. Matthew B. Kaplan for Mr. Malloy. Trial Judge: Anita M. Josey-Herring

Facts: Anthony Johnson was inside his car making a phone call when Malloy approached him, allegedly calling him “hot” (meaning a snitch), and asked him whether he was on the phone with police. Malloy continued to call Johnson “hot” and then allegedly said, “What if I shot your car,” to which Johnson replied, “Well I guess that make you feel good.” Malloy then allegedly said, “What if I shoot you,” and Johnson said, “I guess I be dead.” Several witnesses claimed that Malloy then pulled out a black pistol and pointed it at Johnson, who left and reported the incident to a police officer.

At trial, the court admitted testimony that, a few weeks before the charged incident, Malloy yelled at Johnson, calling him “hot” and threatening that “he’d shoot [Johnson’s] car up.” The government also played a recording of a jail call in which Malloy told Johnson's son, Anthony Tate, to tell his father not to come to court “because Tate and Tate’s mother still live around there . . . You know how that shit go,” but then said, “That’s not a threat.”

The defense called two eyewitnesses who testified that it was Johnson who told Malloy to go get his gun, and that Malloy did not threaten to shoot Johnson's car.

Issue 1: Did evidence of the prior threat introduced at trial unfairly prejudice the appellant?

Holding: No. Under (William) Johnson v. U.S., 683 A.2d 1087 (D.C. 1996) (en banc), the Court found the prior threat was “necessary to place [the] incident in context” and “complete the story” of the alleged crime. Johnson alleged that Malloy had a history of accusing him of being a snitch and threatening to shoot up his car, and the government used the prior threat to explain complainant’s unfazed response to the threat.

Issue 2: Did the trial court err in precluding defense witnesses' testimony about Johnson's and Malloy's statements during the confrontation?

Holding: No. The testimony about the statements was admitted, albeit with a limiting instruction that it was relevant only to the witnesses' state of mind.  That limiting instruction may have been wrong, because it was the state of mind of Johnson and Malloy that mattered, not the state of mind of the witnesses recounting those statements at trial.  However, since the limiting instruction was given only once, the DCCA held that there was no prejudice.

Issue 3: Did the jury instructions unconstitutionally permit the jury to find appellant guilty without finding an essential element of the offense of threats, i.e., the mens rea?

Holding: Yes. The DCCA reviewed the issue for plain error because trial counsel failed to object to the jury instruction during trial. At the close of evidence, the trial court instructed the jury as follows: “As to the charge of threatening to kidnap or injure a person, the elements of threat, each of which the government must prove beyond a reasonable doubt, are [1] that the defendant spoke words heard by Anthony Johnson; [2] the words the defendant spoke would cause a person reasonable to believe that Anthony Johnson would be serious harmed; and [3] that the defendant intended to make the communications which constituted the threat. The government is not required to prove that the defendant intended to carry out the threat. It is not necessary that . . . the intended victim actually heard the words or learned about them.”

In Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), the DCCA held that the defendant’s intent to threaten (or at least knowledge that his words will be construed as a threat) is an essential element of a threat. Thus, there was error. "Rather than include Carrell’s language applicable to a defendant’s intent, this instruction permitted conviction merely if the words spoken would cause a person ‘reasonably to believe’ that the complainant would be seriously harmed, without regard to whether the defendant intended such a threat or knew that the words would be perceived as a threat.”

The Court found that the error was “plain” because  “plainness” is assessed at the “time of appellate review regardless of the state of the law at the time of trial.” Accordingly, with the law established by Carrell, the instructional error was plain. The government did not dispute that the error was plain.

In determining whether the error affected substantial rights of the defendant, the Court considered the fact that the alleged threats were posed as questions and that the complainant seemed unfazed by them. Given these facts, there was a “reasonable probability that the jury’s verdict could have been swayed” by the jury instructions. In addition, the Court focused on the lack of overwhelming evidence in the case, which was essentially a credibility contest; that the jury had difficulty in their deliberations, twice asking whether a different episode in the case was the basis for the threats; and the fact that the jury acquitted appellant on all other charges. The error also affected the fairness and integrity of the proceedings, as the failure to instruct on the intent element was a constitutional error on a point that was seriously contested at trial.

Dissent: Judge McLeese dissented as to the instructional issue, noting that although he agreed that the instructions were “not correct,” Malloy's words were “objectively threatening.” Thus, in his view, there was no basis for finding that the jury would have doubted appellant’s intent to threaten.

Caroline Howe, Guest-blogging.

Read full opinion here.

DCCA En Banc: Mens Rea for Threats Requires Purpose or Knowledge that Words Will Be Construed as a Threat, Maybe Recklessness

Carrell v. United States (decided August 3, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judge Washington. Opinion for the court by Judge Easterly. Partial concurrence/dissent by Judge Thompson. Fletcher P. Thompson for Mr. Carrell. PDS as amicus. Trial Judge: Heidi M. Pasichow

Facts: As we previously summarized in noting the Division opinion:

The complainant testified that Mr. Carrell said to her, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them. He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window. The trial court credited the complainant’s testimony and found Carrell guilty. To find Carrell guilty, the judge said the law required Carrell to have “an intent to utter the words which constituted a threat.” She found such intent and convicted him of attempted threats.

Issue: What mens rea must the government prove in order to obtain a conviction for misdemeanor or felony threats?

Holding: The government must prove the defendant’s mens rea to utter the words as a threat, and may do so by establishing the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

On granting rehearing, the Court asked the parties to brief Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires a finding of mens rea as to both the conduct and the result elements of the statute. Adopting the Court’s reasoning in Elonis, the DCCA “reach[ed] the same conclusion.” To sustain a threats conviction, the en banc court held, “more is required than a showing that a reasonable person would have understood the defendant’s words as a threat or that a defendant should have known that that would be the case.”

The Court did not decide whether a lower-threshold mens rea of recklessness would suffice. The U.S. Attorney’s office had stated that it doesn’t intend to prosecute future threats cases on a recklessness theory.

The Court went on to find that, although there was legally sufficient evidence to support a finding that Mr. Carrell intended to threaten, the trial judge had failed to make a finding on that element, the error was not harmless beyond a reasonable doubt, and thus the case was remanded to the trial court to make the necessary mens rea finding in determining whether Carrell is guilty.

The partial concurrence/dissent: Judge Thompson said she agreed that a threats conviction “requires more than evidence that the defendant intended to utter the words that constitute the threat,” and that she agrees with the majority’s position on the mens rea required for the crime. But she said the opinion doesn’t go far enough, and — citing Justice Alito’s “eloquent[]” concurrence and dissent in Elonis — said the Court should have concluded that a finding of recklessness is enough to satisfy the mens rea element, at least for the misdemeanor threats statute, if not the felony threats statute.

Of Note:

• The Court endorses the Model Penal Code's gradations of intent (purpose, knowledge, recklessness, negligence) over the vague concepts of general and specific intent.
• The Court held that Carrell had preserved the intent issue raised on appeal, although he did expressly raise it at trial. "A 'full range of challenges' to the sufficiency of the evidence are automatically preserved at a bench trial by a defendant‘s plea of not guilty."

LT

Read the 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.

For Malicious Destruction of Property, Defendant Had to Be Aware of a Plain and Strong Likelihood That He Would Damage a Door When He Tried to Break It Open

Lawrence N. Harris v. United States (decided October 29, 2015)

Players: Associate Judges Glickman and Easterly, Senior Judge Ruiz. Opinion by Judge Ruiz. Dissent by Judge Glickman. Jeffrey L. Light for Mr. Harris. Trial judge: Marisa J. Demeo.

Facts: In the wee hours of the morning, Mr. Harris’s mother, with whom he lived, repeatedly called police to report Mr. Harris was “acting out” and under the influence of PCP. Police ultimately escorted Mr. Harris from the house. He returned and hid behind the bed in his basement room, but was discovered by his mother and made to leave again. The next time he returned, he found the front door locked and repeatedly kicked it, causing damage to the door panel, hinges and metal door frame. The damage was only visible from the inside. The trial court convicted Mr. Harris of malicious destruction of property, finding that he either “[1] intended to damage or destroy the property or [2] was aware that his conduct created a substantial risk of harm to that property, but engaged in that conduct, nonetheless.”

Issue: Was there sufficient evidence that Mr. Harris acted “maliciously” in kicking and damaging the door?

Holding: No. “To support a conviction for malicious destruction of property, the trial court must find that the defendant either intended to cause the harm to the property or acted willfully and wantonly, with the awareness of the ‘plain and strong’ likelihood of that harm.” First, there was insufficient evidence to support the trial court’s finding of guilt on grounds that Mr. Harris intended to damage the door, because the court also expressly found that the evidence equally supported the possibility that Mr. Harris did not intend damage, but only to get back in. Where the evidence was in such “equipoise,” it is insufficient for conviction beyond a reasonable doubt. Second, while Mr. Harris committed a “wanton and willful act” by repeatedly kicking the door in a way that he should have known would damage it, more than mere negligence is required. Because Mr. Harris could not see that the interior side of the door was being damaged by his kicks, there was insufficient evidence to find that he “acted with awareness of a plain and strong likelihood” that the kicking “may result” in damage.

Dissent: Judge Glickman dissented, relying on an earlier case that upheld a malicious destruction of property conviction for kicking a door in a manner that caused substantial damage. The majority distinguished the case on grounds that it had undertaken no consideration of the issue in this case: whether the door-kicking was done with “malice.”

Of note: Both the majority and dissenting opinions left open the question of whether a co-tenant whose name is on the lease is privileged to use reasonable force to gain entry to his own home. FT

Read full opinion here.

Attempted Threats Is a Valid Crime in D.C.

Richard C. Jones v. United States (September 17, 2015)

The players: Judges Fisher and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Separate concurrence by Judge Beckwith. Nicholas Q. Elton for Mr. Jones.  Trial Judge: Robert E. Morin.

The Facts: The appellant was convicted in a bench trial of attempted threats. In a hallway in Superior Court after a hearing where the complainant – the guardian ad litem for the appellant’s daughter – had recommended that the appellant should be permitted only supervised visits with the daughter, the appellant said to the complainant, “I’m going to smack the shit out of you,” and then proceeded to get loud.

Issues of note (others are omitted):

On plain error review, the appellant argued that attempted threats was not a valid crime because all attempts require a specific intent to put someone in fear and yet the DCCA has held that a completed threat is a so-called general intent crime that requires no such intent. The Court rejected this argument based on precedent that an attempted threat is a valid offense, and precedent upholding attempts to commit so-called general intent crimes.

The appellant also challenged the sufficiency of the evidence. The Court analyzed this claim on the assumption that the offense required “a specific intent to threaten” and not just an intent to speak words that are, objectively speaking, threatening to the hearer. It did so to avoid any conflict with Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires that a defendant “transmit[] a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” The same issue (with respect to the D.C. statute) is now being litigated before the en banc Court in Carrell v. United States, 80 A.3d 163 (D.C. 2013), vacated, reh’g en banc granted.  See our blog post on Carrell here.  The Court found the evidence sufficient.

Judge Beckwith’s Concurrence:  Concurring with herself, Judge Beckwith wrote separately to flag an inconsistency in D.C. law. In Braxton v. United States, 500 U.S. 344 (1991), the Supreme Court stated that the elements “for an ‘attempt’ at common law … include a specific intent to commit the unlawful act.” D.C. cases, however, say inconsistent things on this very point. She catalogs the various statements in the various cases.  SF

Read full opinion here.

Breaking: DCCA grants rehearing en banc to consider mens rea for threats

The D.C. Court of Appeals has granted rehearing en banc in the case of Carrell v. United States, 80 A.3d 163 (D.C. 2013), in which a Division of the Court (over a strong dissent from Judge Schwelb) held that a threats conviction requires proof only that the defendant intended to utter the words that constitute the threat, but not that he intended the words to be threatening.  In our original blog post on Carrell, which you can find here, we noted that this case was "ripe for en banc review" given that there had been two lines of conflicting precedent in D.C.  It seems likely that the DCCA was holding the rehearing petition in order to see what the Supreme Court did in a case involving the federal threats statute, Elonis v. United States, 135 S.Ct. 2001 (2015), which we blogged about here, as the DCCA's order specifically asks the parties (and PDS as amicus) to brief the impact of Elonis.  The Supreme Court held in Elonis that the federal threats statute requires proof that the defendant intended to threaten (or perhaps was reckless), so that will be highly persuasive authority for the DCCA.  For now, the Division's opinion in Carrell is vacated, and it is essential to argue in any threats case that proof of an intent to threaten is required.