Abney v. United States

Decision Date28 April 2022
Docket Number19-CF-304,19-CF-369
Citation273 A.3d 852
Parties Calvin ABNEY and Shawne I. Proctor, Appellants, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Cecily E. Baskir for appellant Calvin Abney.

William R. Weaver and Brian J. Young, with whom Charles B. Wayne, David M. Bitkower, Washington, DC, and Julian J. Ginos were on the briefs, for appellant Shawne Proctor.

Mark Hobel, Assistant United States Attorney, with whom Michael R. Sherwin and Channing D. Phillips, Acting United States Attorneys at the time, and Elizabeth Trosman, Chrisellen R. Kolb, John P. Mannarino, Gauri Gopal, and Alyse Constantinide, Assistant United States Attorneys, were on briefs, for appellee.

Before Glickman, Beckwith, and McLeese, Associate Judges.

McLeese, Associate Judge:

Appellants Calvin Abney and Shawne Proctor challenge their convictions for armed robbery and related offenses. We vacate and remand.

I.

The evidence at trial was as follows. Mr. Abney and Mr. Proctor worked together at a moving company. Beginning around April 2018, Mr. Abney and Mr. Proctor texted each other, using slang, to refer to guns and to possible plans to rob drug dealers. On June 8, 2018, they called or attempted to call each other numerous times.

The same day, Mr. Proctor's cousin contacted Daijan Green-Ashe, who was an old friend of Mr. Proctor's, and said that Mr. Proctor wanted to talk to Mr. Green-Ashe. Mr. Green-Ashe called Mr. Proctor, who said that he needed some marijuana. Mr. Green-Ashe agreed to meet Mr. Proctor in Southeast D.C. to sell Mr. Proctor marijuana. Mr. Green-Ashe's friend Joshua Tucker drove Mr. Green-Ashe to meet Mr. Proctor.

After exchanging messages with Mr. Proctor about the location of the meeting, Mr. Green-Ashe parked behind a black Dodge Challenger that was outside an apartment building. Mr. Proctor came out of the building with several men whom Mr. Green-Ashe did not recognize and told Mr. Green-Ashe that it was unsafe to make the sale near the building. Mr. Proctor then signaled for Mr. Tucker to follow the Challenger, which Mr. Proctor and another man then entered. The Challenger was following a small silver car. Mr. Green-Ashe was not suspicious at this point, because he considered Mr. Proctor to be a friend.

After driving some distance, the cars stopped. Mr. Proctor got out of the Challenger and got into the back seat of Mr. Tucker's car. Mr. Green-Ashe handed Mr. Proctor the marijuana he planned to sell Mr. Proctor. After inspecting the marijuana, Mr. Proctor called someone from his cell phone. Seconds later, Mr. Abney got out of the Challenger and into the back seat of Mr. Tucker's car.

Two men with guns then approached Mr. Tucker's car. Mr. Abney also pulled out a gun, pressed its barrel against Mr. Green-Ashe's shoulder, and demanded money. Mr. Proctor grabbed Mr. Tucker's arms, pinning Mr. Tucker to the back of his seat. Mr. Green-Ashe said he had no money, and Mr. Abney hit Mr. Tucker in the head with his gun. After a struggle, Mr. Tucker and Mr. Green-Ashe fled on foot. Mr. Green-Ashe saw police officers and told them that his friend had been kidnapped.

When Mr. Proctor was arrested not quite three weeks later, the police seized a cell phone from his pocket. A search of the cell phone turned up messages between Mr. Proctor and Mr. Green-Ashe setting up the marijuana deal; a picture of Mr. Proctor with a gun that resembled one of the guns used in the robbery; a text message by Mr. Proctor less than two hours after the robbery using slang to suggest that Mr. Proctor had some new marijuana; a text message several days after the robbery referring to giving someone a knot on the head; pictures of Mr. Abney, who matched Mr. Green-Ashe's description of the second man to get in Mr. Tucker's car; and the previously mentioned texts between Mr. Abney and Mr. Proctor from April 2018 to June 2018.

Cell phone records placed Mr. Abney and Mr. Proctor in the vicinity of the robbery at the time of the robbery.

II.

Mr. Abney and Mr. Proctor argue that the trial court erred in refusing to replace a juror who had raised concerns about travel plans during trial and deliberations. We agree, and we therefore vacate the convictions and remand the cases to the trial court.

A.

The jury was selected on December 13th, and the trial court at that point expected the trial to last six to seven days. The trial took longer than expected, however, and the United States did not rest its case until December 28th. The next day, Juror 7 sent the trial court a note stating that he had long-standing plans to be in California from January 7th through January 16th. The defense moved to replace Juror 7 with an alternate, because Juror 7 might get anxious if deliberations ran long. The trial court denied the motion, predicting that the jury would have enough time to deliberate before Juror 7 had to leave for his trip. The trial court informed Juror 7 that the note had been received and that Juror 7 would continue to serve as a juror.

The trial again took longer than the trial court had expected, and the jury did not start deliberating until January 2nd. On the afternoon of January 3rd, defense counsel expressed concern about Juror 7's travel plans, given that the next day was the last day of deliberations before Juror 7 was planning to depart. Defense counsel asked the trial court to inquire of Juror 7, but the trial court declined to do so.

The next morning, Juror 7, who was the foreperson, sent the trial court a note asking whether the jury had to be unanimous on all counts before returning a verdict on any count. The defense again argued that Juror 7 should be replaced with an alternate because of the pressure Juror 7 might be feeling to render a speedy verdict to avoid missing his trip. The trial court declined to replace Juror 7, stating that it could excuse a juror after deliberations have begun "only when extraordinary circumstances and just cause are present." Stating that the jury seemed to be deliberating with "due attention," the trial court concluded that Juror 7's travel plans did not amount to extraordinary circumstances and just cause.

Juror 7 sent the trial court two further notes that afternoon. The first note brought up Juror 7's travel plans again:

Your Honor, As mentioned in a juror's note last week I can not be in court on Monday. I have a 2 p.m. flight to California and am scheduled to be out of town until January 17. My presence is especially required as I am meeting my brother to do a backpacking trip in the desert and I have supplies that he needs and is relying on. Additionally, I do not feel that, insofar as I have the power to decide, that I can let him enter the desert for 6 days on his own. He is my brother. I am very sorry for this inconvenience but the trip has been planned for [approximately] 6 months.

The second note, which was sent out thirteen minutes later, stated that the jury had reached a unanimous verdict on five counts.

The defense renewed the request to replace Juror 7 with an alternate. In support of that request, the defense pointed out that Juror 7's note stated that Juror 7 could not be in court on Monday. The defense further argued that the note and the surrounding circumstances, including the jury's difficulty in reaching a verdict, indicated that Juror 7's travel plans were affecting Juror 7's ability to deliberate impartially. In the alternative, the defense requested that the trial court at least inquire of Juror 7.

The trial court declined to replace Juror 7 with an alternate and declined to question Juror 7. In explaining its decision, the trial court reiterated its prior ruling that Juror 7's travel was not an "extraordinary circumstance" that permitted Juror 7's removal from the jury. The trial court also stated that nothing in the record showed coercion or that Juror 7 would not be impartial.

The trial court took a partial verdict of acquittal on some counts and guilt on other counts. After excusing the other jurors, the trial court explained to Juror 7 that the court could not release him from jury duty because his travel plans did not "qualify in the law as extraordinary circumstances." In response, Juror 7 asked the trial court to give him a note stating that the court would not excuse him from jury service, so that Juror 7 could use the note in communicating with his brother.

On the morning of Monday, January 7th, the jury returned a note stating that it had reached a unanimous verdict on two of the remaining four counts but was deadlocked on the others. The trial court took a partial verdict in which the jury found Mr. Abney and Mr. Proctor each not guilty on two counts. The trial court then gave the jury an anti-deadlock instruction and sent the jury back for further deliberations on the two remaining counts. Around 1 p.m., about an hour before Juror 7 had been scheduled to leave on his trip, the jury found Mr. Abney and Mr. Proctor both guilty on the last two counts.

B.

"When a defendant exercises [the] right to a jury trial, the jury's verdict will have legitimacy only if it is the product of unanimous decision making, devoid of coercion." Callaham v. United States , 268 A.3d 833, 841 (D.C. 2022). We give some deference to "the trial judge's on-the-spot perception of whether a juror was coerced." Leake v. United States , 77 A.3d 971, 979 (D.C. 2013) (internal quotation marks omitted).

Claims of juror coercion "must be evaluated in context and with regard to all of the circumstances." Coley v. United States , 196 A.3d 414, 420 (D.C. 2018) (internal quotation marks omitted). We consider "the inherent coercive potential of the situation before the [trial] court" and whether the actions of the trial court "exacerbated, alleviated or were neutral with respect to coercive potential." Id . (internal quotation marks omitted). Our inquiry "focuses on probabilities, not certainties." Id . (internal quotation marks omitted).

We conclude that there was a substantial risk of...

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3 cases
  • In re J.F.S.
    • United States
    • D.C. Court of Appeals
    • 31 Agosto 2023
    ...As for whether the warrant was sufficiently particularized to authorize a search, this case is on all fours with Abney v. United States, 273 A.3d 852, 865-67 (D.C. 2022). As in that case, here "the officers could reasonably have believed that the warrant was neither overbroad nor insufficie......
  • Sanchez v. United States
    • United States
    • D.C. Court of Appeals
    • 19 Enero 2023
    ... ... event the matter should be remanded for further consideration ... of the second new-trial motion. Moreover, it is not clear ... whether those issues will arise again on remand and if so in ... what factual context. Cf. Abney v. United States, ... 273 A.3d 852, 870 (D.C. 2022) (declining to decide certain ... evidentiary issues where it was "unclear whether, and if ... so how, issues would arise on remand"). Under the ... circumstances, we decline to address those issues at this ... time ... ...
  • Sanchez v. United States
    • United States
    • D.C. Court of Appeals
    • 19 Enero 2023
    ...Moreover, it is not clear whether those issues will arise again on remand and if so in what factual context. Cf. Abney v. United States , 273 A.3d 852, 870 (D.C. 2022) (declining to decide certain evidentiary issues where it was "unclear whether, and if so how, issues would arise on remand"......

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