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.

Misdemeanor threats to do bodily harm need not be “serious”

Mark E. Lewis v. United States (decided May 12, 2016)

Players: Associate Judges Blackburne-Rigsby and Thompson and Senior Judge Reid. Opinion by Judge Blackburne-Rigsby. Charles Burnham for Mr. Lewis. Trial Judge: Jennifer M. Anderson.

Facts: Following a bench trial, Mr. Lewis was convicted of second-degree theft and attempted misdemeanor threats to do bodily harm. The complaining witness testified that Mr. Lewis spent the night at her home and took money out of her wallet when she left the bedroom to answer the door. The complaining witness reported the money stolen when she returned to the bedroom to find Mr. Lewis gone and her wallet empty and displaced. The complaining witness testified that in a later phone call, Mr. Lewis denied the theft and demanded, “Stop playing with me, b****. I’ll smack the s*** out of you [and] get you f***ed up.”

Issue 1: Whether the evidence was sufficient to sustain a conviction for attempted misdemeanor threats to do bodily harm?/Whether the crime of misdemeanor threats requires a threat to do “serious bodily harm”?

Holding 1: Yes/No. Although the Court has sometimes stated that the crime of misdemeanor threats requires uttered words that “convey fear of serious bodily harm or injury,” the Court has never confronted the issue squarely. The statute itself does not use “serious” to qualify the type of harm that is punishable if threatened. The “serious bodily harm” language from the cases appears to be an artifact of the Redbook and an inversion of jurisprudence requiring that the promise of bodily harm be serious for a true threat to occur. Requiring “seriousness” in the context of verbally threatened, as opposed to completed, bodily harm would be unworkable in practice. Cf. D.C. Code § 22-3001(7) (defining “serious bodily injury” for purposes of aggravated assault).

Issue 2: Whether the evidence was sufficient to sustain a conviction for second-degree theft, in light of the fact that no one witnessed the alleged theft?

Holding 2: Yes. The circumstantial evidence presented was sufficient.

Of note:

• It is troubling that the Court’s reasons for declining to read “seriousness” into misdemeanor “threats to do bodily harm” apply with equal force to its felony counterpart, which is punishable by up to 20 years imprisonment. See D.C. Code § 22-1810. The DCCA has traditionally “interpreted the elements of this misdemeanor to be the same as those of its subsequently enacted felony counterpart.” United States v. Baish, 460 A.2d 38, 41 (D.C. 1983), abrogated by Carrell v. United States, 80 A.3d 163 (D.C. 2013), reh’g en banc granted, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015). The implications of this opinion figure to extend beyond the misdemeanor statute.

• Following Joiner-Die v. United States, 899 A.2d 762 (D.C. 2006), and In re Z.B., 131 A.3d 351 (D.C. 2016), this case deepens the divide in how the statutes for threats and assault are interpreted, despite conceptual overlap between the two offenses. While the Court posits that it would be unworkable to require proof that the harm contemplated by uttered words is “serious” in the same sense that aggravated assault requires, it is conceivable that the government would face this exact burden in prosecuting attempted aggravated assault. The Court opined that it was “unclear and possibly unknowable” that a threat to “smack the s*** out of” someone or “get [him or her] f***ed up” would threaten “serious bodily injury.” This opinion may raise interesting sufficiency questions in the future.  WC

Read full opinion here.

Sticks and stones may break my bones . . . but words will be punished more severely . . . when used in lieu of sticks or stones . . . to complete a robbery in D.C.

In re Z.B. (decided February 4, 2016).

The Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Senior Judge Pryor.  PDS for Z.B.  Trial Judge: Florence Y. Pan.

Facts:  The complaining witness flagged down a police officer to report the robbery of his cell phone moments earlier.  Ensuing radio broadcasts described “three young black male” suspects, including one six-foot-two-inches-tall seventeen-year-old, wearing a black jacket and blue gloves.  Following these broadcasts (which failed to mention the cell phone), two officers stopped Z.B., who was shorter than 6’2”, wearing one aqua and blue glove and a black ski mask that exposed his face, and carrying a cell phone that he put in his pocket upon seeing the police.  

The police brought the complaining witness to Z.B.’s location for show-up identification.  Upon positive identification, police placed Z.B. under arrest, at which point he asked: “How you going to say I robbed somebody?”  Subsequent search of Z.B.’s person revealed a cell phone that the complaining witness identified as his own. 

The trial court denied Z.B.’s motion to suppress the identification, his rhetorical question, and the cell phone recovered from him, as the fruits of an illegal stop under the Fourth Amendment.  It further adjudicated Z.B. involved with robbery, receiving stolen property, and two counts of misdemeanor threats to do bodily harm. 

Issue 1: Whether the trial court erred in denying Z.B.’s motion to suppress.

Holding 1: No.  “Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop.”

Issue 2: Whether Z.B.’s adjudications for robbery and misdemeanor threats to do bodily harm merge.

Holding 2: No.  Threats and robbery do not merge under Blockburger because each includes an element that the other does not.  Z.B.’s argument that it is an “absurd result” to punish the robber who uses threats more severely than the robber who uses force “misses the mark” because it fails to appreciate that the former has “not only committed an assault but also committed threats.”  WC

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.

The “Bias-Related Crime” Enhancement Can Apply to Any Crime on the Books

Girma Aboye v. United States (decided August 6, 2015)

Players: Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation. Opinion by Judge Glickman. Fletcher P. Thompson for Mr. Aboye. Trial judge: Robert E. Morin.

Facts: Mr. Aboye and his dog, Tarzan, had a tense relationship with the complainants, a gay couple. On one occasion when the couple approached Tarzan with their own dog, Mr. Aboye told them Tarzan “doesn’t like homosexuals.” A few months later, during a verbal exchange with the couple, Mr. Aboye “heatedly yelled, ‘Shut up you faggots[;] I’m going to kill you with my dog. I’m going to have my dog kill you.’” The complainants reported that Tarzan, a brindled pit bull mix, was not acting aggressively, and the officer who later arrested Mr. Aboye testified that he found Tarzan to be friendly and nonthreatening. After a bench trial, Judge Morin found Mr. Aboye guilty of bias-related threats to do bodily harm.

Issue 1: The sentencing enhancement for “bias-related crime” applies to “a designated act that demonstrates an accused’s prejudice based on the actual or perceived . . . sexual orientation . . . of a victim of the subject designated act.” D.C. Code § 22-3701(1). A “designated act” is defined as “a criminal act, including arson, assault, burglary, [and twenty-two other enumerated crimes].” D.C. Code §22-3701(2). Can the enhancement apply to threats, even though threats is not on the list of “designated act[s]”?

Holding 1: Yes. Elsewhere, the D.C. Code provides that “unless specifically provided otherwise: . . . . The word[] . . . ‘including’ mean[s] . . . ‘including, but not limited to.’” D.C. Code § 1-301.45(10). Thus, the plain language of the bias-related crimes law — like its statutory context and legislative history — indicates that the list of “designated act[s]” is not exclusive. The court held that “the term ‘designated act’ in D.C. Code § 22-3701(2) means any criminal act recognized under D.C. law.”

Issue 2: Was there sufficient evidence to prove the second element of threats, that Mr. Aboye’s words could convey fear of serious bodily harm or injury to the ordinary hearer?

Holding 2: Yes, in spite of Mr. Aboye’s argument that the evidence showed Tarzan to be a real pussycat, he was “no miniature lap dog,” and had already been described to the complainants as “hostile to homosexuals.” In any event, “even if Tarzan was friendly and tame, appellant’s death threat was not.” FT

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.