Cousart v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: STEADMAN, Senior Judge
• Citation: Cousart v. United States, 144 A.3d 27 (D.C. 2016)
• Decision Date: 04 August 2016
• Docket Number: No. 15–CF–151.,15–CF–151.
• Parties: Nathaniel COUSART, Appellant, v. UNITED STATES, Appellee.

144 A.3d 27

Nathaniel COUSART, Appellant,

v.UNITED STATES, Appellee.

No. 15–CF–151.

District of Columbia Court of Appeals.

Submitted March 24, 2016.

Decided Aug. 4, 2016.

Matthew J. Peed, Washington, DC, was on the brief for appellant.

Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, John P. Marston, and Danny Lam Nguyen, Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.

STEADMAN, Senior Judge:

Nathaniel Cousart appeals his convictions by a jury of aggravated assault while armed (AAWA)¹ and assault with a dangerous weapon (ADW).² He argues that the trial court committed plain error in its instructions on both counts. We find no plain error. However, we publish this opinion because in instructing on the AAWA count, the trial court closely followed the model instructions in Criminal Jury Instructions for the District of Columbia (5th ed. rev. 2015),³ but yet, in doing so, left open the possibility of argument for reversal that appellant makes here and others may make in future cases.⁴

I. The Facts

On September 13, 2013, when he went into an alley to urinate, Darfus Barrett was stabbed in the neck, shoulder, and back, inflicting serious injury. Mr. Barrett testified at trial that it was appellant who followed him into the alley and stabbed him with a knife. Mr. Barrett and appellant were acquaintances but not friends and did not “get along”; they had had a verbal set-to the previous day. There was no other witness to this stabbing.

After the attack, Mr. Barrett fled and ran south on North Capitol Street, hollering for help, and appellant followed him with the knife in his hand. As Mr. Barrett approached the apartment complex at 1200 North Capitol Street, Trever Edelin, a security guard at the complex, emerged to help. When Mr. Edelin asked who had stabbed him, Mr. Barrett pointed toward the crowd of onlookers and said, “blue shirt.” Appellant, who was wearing a blue shirt, began walking away. Mr. Edelin pursued appellant while yelling “blue shirt” and “stop.” Appellant then pulled out a knife, turned and took a step towards Mr. Edelin “in a threatening manner.” Mr. Edelin saw blood on appellant's shirt and face when he approached appellant. Appellant was not directly pointing the knife at him but held the knife “toward his waistline, back toward his body,” and he “had it shielded with his body.” Fearing for his life, Mr. Edelin drew his gun. Seeing the gun, appellant turned around, walked a few steps, and then threw the knife down a sewer. Mr. Edelin eventually succeeded in restraining and handcuffing appellant with the aid of a fellow officer from the complex.⁵

II. The AAWA Instruction

The charge of AAWA was based on the stabbing of Mr. Barrett in the alley. The trial court gave the jury the following instruction:

The elements of the crime of aggravated assault while armed, each of which the Government must prove beyond a reasonable doubt are that, one, Nathaniel Cousart caused serious bodily injury to Darfus Barrett; and, two, Nathaniel Cousart either, A, intended to cause serious bodily injury to Darfus Barrett, or, B, knew that serious bodily injury to Darfus Barrett would result from his conduct, or, C, was aware that his conduct created an extreme risk of serious bodily injury to Darfus Barrett, but engaged in that conduct nonetheless.

Serious bodily injury is an injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental facility, or a substantial risk of death.

At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use.

Armed with means the actual physical possession of the weapon. Readily available means that the dangerous weapon was within easy access of Nathaniel Cousart, he knew it was there, and he had both the ability and the intent to exercise control over it.

In this instruction, the trial court in the first two paragraphs defined the offense of aggravated assault by following virtually verbatim Instruction 4.103 (Aggravated Assault). Then, in defining the “while armed” element of the offense, the trial court in the next two paragraphs followed closely Instruction 8.101(B) (Armed With or Had “Readily Available” Any Weapon).⁶

In challenging this instruction for the first time on appeal, appellant focuses on the first sentence in the third paragraph: “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife.” Appellant argues that this instruction was an improper partial direct verdict, in that it instructed the jury that Cousart was in fact armed with a knife, a fundamental and disputed factual issue. See Minor v. United States, 475 A.2d 414 (D.C.1984).

Appellant, however, failed to object at trial and, thus, we review for plain error. Johnson v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). Under the plain error standard, an appellant “must show (1) that there was a deviation from a legal rule, (2) that this error was clear or obvious, rather than subject to reasonable dispute, and (3) that this error affected the defendant's substantial rights.” In re Taylor, 73 A.3d 85, 96 (D.C.2013) (internal quotation marks and citations omitted). Even if these three criteria are met, reversal should occur only if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).

The claimed error here cannot meet this standard for reversal. An instruction that follows without objection the model criminal instruction would constitute an error that is “plain” only in an unusual case.⁷ Indeed, by using the words “[i]n deciding whether,” the instruction itself goes on to state that it is for the jury to decide the armed element. In this case, the trial judge had also unequivocally instructed the jury that it was “the sole judge[ ] of the facts,” see Instruction 2.102, and if the judge's reference “to the evidence [did] not coincide with [the jury's] own recollection of the evidence,” then it was the jury's “recollection which should control during [its] deliberations.” See Instruction 2.103. Furthermore, in its instructions on the other charges, ADW and CDW, the trial court made no mention of a knife and unambiguously stated that the government must prove that the appellant carried or committed the act with a dangerous weapon. It would seem odd for a jury to conclude that while it had the responsibility for determining whether appellant had a dangerous weapon, the knife, in order to convict for those offenses, it need make no such finding for AAWA.⁸ Viewing the challenged sentence in the context of the instructions as a whole, we do not think there is any reasonable probability that the jury took the sentence as removing from the jury the determination whether appellant stabbed Mr. Barrett and tried to attack Mr. Edelin with a knife.

Appellant suggests that a reversal here is compelled by our holding in Minor, supra, 475 A.2d at 416. In that case, the appellants were charged with larceny and receiving stolen property, which required that the goods have a value in excess of $100. The trial judge, without objection, instructed the jury that “as a matter of law, I find that the property had such value” and again, “as a matter of law, I find that the value is in excess of $100.00.” Id. at 415. Nor did the court “further charge the jury so as to put the fact finding responsibility regarding value back in the jury's hands.” Id. On appeal, we held that these instructions constituted a partial directed verdict and rejected any application of harmless error. In doing so, we stressed the narrowness of the decision, dealing with “statements from the bench during instructions which are unambiguously directed verdicts on an essential element of the crime.” Id. at 416. They were not “a comment by the court on the evidence” nor “an instructional error.” Id.

We do not think that the situation before us is controlled by Minor. In Minor, the court explicitly removed the value element from the jury's consideration “as a matter of law.”⁹ In our case, the trial court's statement appeared in the midst of instructions of the elements of the offense and related to a fact—possessing a knife—that was not, in itself, an essential element but depended on a jury finding of its dangerousness by its use. Unlike in Minor, the trial court's instructions as a whole stressed the jury's role as the sole fact finder. Finally, Minor predated the seminal decision in United States v. Olano, supra, setting forth the controlling analysis for plain error review, and may be in conflict with the later Supreme Court decision in Johnson v. United States, supra. In Johnson, the Court held that a trial court's improper determination of an element of an offense that was properly for a jury to determine was subject to plain error review pursuant to Olano. It is difficult to see any meaningful distinction between a partial directed verdict on an element of an offense and a trial court's improper determination of that very element.

Nonetheless, appellant's argument is not frivolous. The standard jury instruction 8.101(B) reads as follows:

At the time of the offense, [name of defendant] was armed with, or had readily available, a [firearm] [imitation firearm] [sawed-off shotgun] [shotgun] [machine gun] [rifle] [dirk] [bowie knife] [butcher knife] [switchblade knife] [razor] [black jack] [billy] [metallic

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