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.

It’s Still a Seizure When the Police Ask You, but Not Order You, to Get Out of Your Car

Devon Sharp v. United States (decided February 18, 2016)

The Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Farrell. Opinion by Associate Judge Beckwith. Tito V.A. Castro for Mr. Sharp. Trial Judge: Michael Ryan.

Facts: Police officers heard a “loud scream or commotion” coming from a parking lot identified by officers as a place for valeting cars, but also where “a lot of cars are broken into.” While the scream “wasn’t like a someone-in-danger scream,” it caused enough of a noise to catch the officers’ attention. Sharp was not involved with the noise makers.

When the people who caused the commotion walked away, the police diverted their attention to Sharp, who was sitting in the driver’s seat of a parked Jeep, listening to rap music with “his head down[,]” “looking down at something in his hands.” Two officers wearing police vests and badges approached Sharp and asked why Sharp was there in the parking lot. Sharp nervously gave nonresponsive answers. The police asked to search the Jeep. Sharp declined. At this point, Sharp’s nervous energy had seeped into the officer, who now felt nervous himself, so the police “asked could [Sharp] step out of the vehicle.” Sharp complied with the request and stepped out of his Jeep.

Once Sharp stood with police, he admitted to having brass knuckles, which were recovered from his jacket. Police then found, in a search incident to arrest of both his person and his vehicle, cocaine, marijuana, and other drug paraphernalia.

The trial court denied Sharp’s motion to suppress tangible evidence as the court determined Sharp’s exit from the vehicle to be consensual. After a stipulated trial, Sharp was found guilty of all charges.

Issue 1: Did officers seize Sharp by asking, yet not commanding, him to step out of his car?

Holding 1: Yes. Although the officer “simply asked appellant to get out of the car,” such a request amounted to a Fourth Amendment seizure because “the officer’s routine act of asking the driver to get out of the car—a request made after the driver had already turned down the officer’s initial request to search the car—would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” In other words, a reasonable person in Sharp’s shoes would not have felt free to tell the police, “No, thanks. I’d rather not step out. Bye, bye.”

Issue 2: Did the officers have a reasonable articulable suspicion to justify Sharp’s seizure?

Holding 2: No. The police did not have a particularized basis to suspect that criminal activity may have been afoot. Sharp was not involved in the “loud scream or commotion”; those individuals walked away. Sharp was legally parked, and the fact that he was looking at something in his hands did not arouse suspicion. Sharp did not make any furtive gestures. The Court found that Sharp’s nervousness, nonresponsive comments, and refusal to allow the police to search his car did not amount to a reasonable articulable suspicion that would have justified the intrusion.

Of Note:

• The Court stopped short of declaring a per se rule “that a police officer seizes a car’s occupant in every instance where he asks him to get out of the vehicle.” Under the totality of the circumstances test, there remains a theoretical possibility that “an officer might ask a vehicle’s occupant if he would consent to getting out of a car in a way that gave the occupant a realistic right to decline[.]” While the Court did not foreclose such a possibility, the language in the opinion seems to suggest that a majority of these police requests — in cases not involving routine traffic stops — would result in a seizure. JW

Read full opinion here.

Dismissal of Tardy Juror Affirmed

Eugene A. Kelly v. United States (decided March 31, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Kelly.  Trial Judge: Herbert B. Dixon.

Facts:  Mr. Kelly was convicted of first-degree murder while armed, assault with intent to kill while armed, and related firearm offenses following a jury trial that took place over several days.  The afternoon before deliberations were set to begin, the court instructed the jury to return at 10:00 A.M. The next morning at 10:00, however, Juror 211 was not present.  

After a short recess, the courtroom clerk and the government noted that the juror had been late other days.  The defense persuaded the court to take another recess, but, at 10:57 A.M., when the juror had not arrived, called, or answered court’s call or email, the judge ordered trial to proceed.

Juror 211 called to say that he was parking nearby, as the jury lined up to enter the courtroom.  The defense objected to proceeding without him.  The judge asked the courtroom clerk to find out the juror’s location but decided to move forward without him, when the government objected to further delay.  The court substituted an alternate and set a hearing for Juror 211 to show cause why he should not be held in criminal contempt.

Issue: Whether the trial court committed reversible error by discharging Juror 211.

Holding: No.  Superior Court Rule of Criminal Procedure 24(c) allows the court to replace a juror who “becomes or is found to be unable or disqualified to perform juror duties.”  This case is not like those in which the court has found breaches of Rule 24(c) because the record here supports that the removed juror was unable or disqualified to perform his duties.  Juror absence is observable and disruptive, and the court could infer that Juror 211’s tardiness would continue to disrupt, even if the juror made it to court that day.

Under Rule 24(c), a “sound basis” to replace a juror “may exist when the court has no reason to believe the juror’s arrival is imminent; when the court has reason to believe the juror’s arrival (even if imminent) will occasion further delay of the trial; or when the juror’s tardiness or other conduct indicates to the court that the juror cannot be relied upon to show up for trial on time in the future.”

The court did not have to wait to hear from the juror, where no one knew how long it would take him to arrive and the court planned to order him to show cause why he should not be held in criminal contempt, triggering concerns about the fairness of asking him to explain his absence.

Of Note: While recognizing the trial judge’s discretion to address juror attendance issues under Rule 24(c), this opinion also recognizes boundaries to that discretion.  The defendant has a “right to have his trial completed by a particular tribunal” once the jury is empaneled.  The court notes that “this would be a different case,” presumably with a different outcome, if the judge had acted “precipitously or without solicitude for appellant’s desire to retain Juror 211.”  WC

Read full opinion here.

 

Parental Discretion Advised: The DCCA Grapples with the Admissibility of Rap Lyrics and Other Issues in 9-Month, 6-Person Conspiracy Trial

 Note: This is our second installment on the 232-page decision that the DCCA issued in this case last November.  The first installment was posted on March 1.

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 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 2004 murder of Terrence Jones and assault of Richard Queen, the 2006 murder of James Taylor and assault of Bernard Mackey, and obstructions of justice related to the Jones/Queen and Taylor/Mackey incidents. 

The issues analyzed in this post are numbered according to the section numbers used in the opinion.

Issues VII(A): Whether the evidence was sufficient to make out a single conspiracy involving all six appellants.  Whether the object of the conspiracy was lawfully constrained and defined in the indictment. 

Holding VII(A): Yes and yes. Because of the way the indictment was worded, the Court considers whether it established each appellant’s knowing participation in an agreement either to obstruct justice or assault or kill those whose interests were contrary to the defendants and their conspirators.  Testimony established that membership in the Crew was “a way of life” that implied certain reciprocal rights and responsibilities, including the need to retaliate against “snitches” and rival drug dealers.  (pp. 22-25).  Appellants’ participation in drug dealing and the violent overt acts in the indictment established their knowing participation in the conspiracy.  (pp. 25-34).  A conspiracy’s purpose should not be defined in too narrow terms.  The conspiracy count adequately apprised appellants of the scope and timing of the alleged conspiracy and allowed them to prepare a defense.  (pp. 34-35).

Issue VIII(E): Whether the trial court erred in admitting violent rap lyrics that referenced murder and drug-dealing, apparently authored by Mr. Rushing, Mr. Tann, and a third, unindicted person (Michael Smith), along with a social media profile authored by Mr. Beaver. 

Holding VIII(E):  No.  First, the rap lyrics bore sufficient indicia of authenticity in that they were primarily in the first person and purportedly autobiographical.  (pp. 127-29).

Second, testimony showed that Michael Smith was a member of the predicate conspiracy at all times relevant to the hearsay exception for co-conspirator statements.  (pp. 129-30).

Third, the statements at issue furthered the conspiracy by promoting the stature of the Crew within the community and spreading its messages of violence and intolerance toward would-be rivals and informants.  (pp. 130-32).

Fourth, as a matter of first impression in the DCCA, the trial court did not abuse its discretion in determining that the prejudicial effect of this content did not substantially outweigh its probative value, given the “specificity with which the lyrics describe the facts surrounding the offense(s) charged,” how hotly contested the conspiracy charge was, and the fact the trial court culled the government’s evidence for unfairly prejudicial content.  (pp. 133-35).

Issue VIII(F):  Where the jury had already found Mr. Harris and Mr. Arnette guilty of conspiring with Mr. Tann to, among other things, murder, but had not yet found Mr. Harris and Mr. Arnette guilty on separate aiding-and-abetting charges in the Taylor/Mackey and Jones/Queen incidents—

Whether the trial court erred in denying Mr. Harris and Mr. Arnette’s motion for mistrial or Mr. Harris’s motion to voir dire the jury, when Mr. Tann stood up and stated,

I don’t see how I can get found guilty and what type of court is this?  I wasn’t even there. . . . [N]owhere near . . . I get found guilty and I’m innocent.  God going to challenge y’all for this.  I’ll see y’all in heaven. . . .  I’m innocent.  How the fuck I get found guilty? . . .  That’s fucking—that’s crazy[,]

(pp. 135-39).

Holding VIII(F):  No.  Even taking as true the alleged juror statements that Mr. Tann had made a “death threat” to them and had similarly threatened witnesses throughout the trial, Mr. Tann’s statements did not expressly implicate his codefendants, the court issued a sua sponte curative instruction after his outburst, and no juror contacted the court with any concern following the outburst.  The trial court properly considered the risk that further inquiry would magnify a non-issue.  The cases cited by Mr. Harris, where the court has called for voir dire on juror bias, have all turned on facts outside the court’s direct knowledge, as opposed to Mr. Tann’s outburst (and the jury’s reaction), which happened in open court.  (pp. 141-42).

Of Note:
The outcomes of the issues summarized above turn on the particular facts of this case and therefore, practitioners grappling with similar issues in their own cases will want to study the opinion carefully.  
 

Such caution in interpreting and applying the Court’s opinion applies with great force to the issue of whether the trial court abused its discretion in determining that the prejudicial effect of admitting the evidence of violent rap lyrics did not substantially outweigh their probative value.  

In the Court’s own words—

While there is no abuse of discretion on this record, we could easily envision a case where lyrics, poetry, or other statements in a form traditionally understood to be artistic expression were not sufficiently specific to the charged crime so as to have such important probative value.  Evidence that doubles as a type of art will often be a confusing mixture of truth and fabrication.  Therefore, trial courts must very carefully scrutinize such materials and statements for unfair prejudice.  (p. 135 n.6).  WC

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.