English v. United States, s. 09–CF–1025

• Decision Date: 14 July 2011
• Docket Number: 09–CF–1026.,Nos. 09–CF–1025,s. 09–CF–1025
• Citation: 25 A.3d 46
• Parties: Obbie L. ENGLISH and Darnell N. Anderson, Appellants,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

25 A.3d 46

Obbie L. ENGLISH and Darnell N. Anderson, Appellants,

v.UNITED STATES, Appellee.

Nos. 09–CF–1025

09–CF–1026.

District of Columbia Court of Appeals.

Argued June 14, 2011.Decided July 14, 2011.

Richard S. Stolker, Rockville, MD, appointed by the court, for appellant English.Robert J. Katerberg, with whom David P. Gersch, and Benjamin Wallfisch, Washington, DC, were on the brief, for appellant Anderson.John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Frederic P. Gallun, Assistant United States Attorneys, were on the brief, for appellee.Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.SCHWELB, Senior Judge:

A jury convicted Obbie L. English and Darnell N. Anderson, inter alia, of fleeing from a law enforcement officer in a motor vehicle in a reckless manner, in violation of D.C.Code § 50–2201.05b (2001).¹ On appeal, Anderson and (to a limited extent) English contend that the evidence was insufficient as a matter of law to support their convictions. We affirm English's conviction but reverse Anderson's.

I.BACKGROUND

At trial, the prosecution presented evidence showing that on April 18, 2008, at approximately 9:50 p.m., Victor Branham and DeAndre Branham were walking in the 1200 block of Brentwood Road, N.E. when several shots were fired at them from the passenger side of a passing automobile. Two passengers in the car were wearing masks. Victor Branham was shot in the leg. He suffered a shattered femur, and he was hospitalized for approximately one week. The vehicle from which the shots were fired was driven by English, and Anderson was one of the passengers.²

Prior to the shooting, English had slowed the car down, but after the shots were fired, he turned off the headlights and drove away from the scene at a high rate of speed, evidently seeking to avoid apprehension by an officer who promptly activated his emergency equipment and began to pursue him. At one point, the automobile driven by English was traveling at 95 m.p.h. Eventually, the car stopped, and when the officers reached the vehicle, they found English crouching inside and placed him under arrest. Two of the passengers—Anderson and appellants' former codefendant, Robert Davenport—were apprehended while running from the scene. Two pistols and two masks were found near their path of flight.³

English, Anderson and Davenport were all brought to trial. The prosecution introduced extensive testimonial and other evidence with regard to the shooting and the pursuit of the car from which the shots were fired. None of the defendants presented any evidence. The three men were convicted of the various offenses enumerated above. See note 1, supra. These appeals followed. ⁴

II.ENGLISH'S APPEAL

Claiming, inter alia, evidentiary insufficiency, English has appealed from all of his convictions, presumably including his conviction for reckless flight from a law enforcement officer. It is not clear whether his claim that the evidence was insufficient is intended to extend to the flight count. In any event, such a claim is entirely lacking in merit.

During closing argument at the trial, in arguing that English was not involved in the shooting or the criminal enterprise, English's attorney asserted that his client could not have been intentionally fleeing from a police officer because he was unaware that the police were in pursuit. During oral argument before this court, which also focused on the assault and weapons counts and English's claimed lack of participation in the other defendants' concerted criminal conduct, his appellate counsel made a similar claim, contending that English had “panicked,” that English may have been under coercion by his passengers, and (apparently) that the government had failed to prove beyond a reasonable doubt English's guilt of the fleeing offense. In his brief, however, counsel wrote:

It is true that by driving “like a bat out of hell,” to quote the prosecutor, appellant sought to elude the police.

* * *

[I]n the case at bar, appellant's rapid flight from the crime scene evidenced only a not unreasonable fear of apprehension because of the violent acts that had just been committed by his passengers.

Thus, insofar as English's claims in the trial court and at oral argument in this court apply to the reckless fleeing count, they are starkly contradicted by his own brief. “Points not urged in a party's initial brief are treated as abandoned.” In re Shearin, 764 A.2d 774, 778 (D.C.2000) (citations omitted). This is so, because “the failure to raise an issue in one's brief prevents the opposing party from briefing the issue, and it prevents both this court and opposing counsel from preparing for its consideration at oral argument, contradicting the very purpose of that stage of the appellate process.” Id. (quoting George Washington Univ. v. Waas, 648 A.2d 178, 182 n. 6 (D.C.1994) (citations omitted)). Moreover, even if English's claim had been preserved, which it was not, this court must view the record in the light most favorable to the prosecution, defer to the jury's assessment of credibility, and draw all reasonable inferences in the government's favor. Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc); Blaize v. United States, 21 A.3d 78, 82–83 (D.C.2011). In light of the admissions in English's brief and the uncontroverted and compelling proof of flight from the police, including, inter alia, the fact that English, having slowed down before the shooting, sped off with his lights turned off immediately thereafter, English has failed to show that there is “no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt....” Kaliku v. United States, 994 A.2d 765, 786 (D.C.2010) (citation and internal quotation marks omitted).

III.ANDERSON'S APPEAL

A. Anderson's claims

Anderson challenges his conviction of recklessly fleeing a law enforcement officer in a motor vehicle on two grounds. First, he claims, relying on the words of § 50–2201.05b,⁵ that “[b]y the terms of that statute, only an operator of a motor vehicle can commit that offense.” Anderson asserts in his brief that “no reported case in the District of Columbia has been found applying aiding and abetting to this statute or otherwise holding a passenger in a car liable for violating it.” Second, Anderson asserts in the alternative that even if someone other than the driver may be held criminally liable under the statute pursuant to an aiding and abetting theory, the prosecutor did not prove beyond a reasonable doubt that Anderson aided and abetted English in carrying out the flight. We are unpersuaded by Anderson's first contention, but we agree with the second.

B. Anderson's claim that only a driver can violate the fleeing statute

Although the fleeing statute, by its terms, applies to the operator of a motor vehicle, Anderson has cited no authority or persuasive argument, and we know of none, for the proposition that conventional principles of aiding and abetting should not apply to the offense here under consideration. In particular, we are aware of no logical reason why a passenger cannot be an aider and abettor of flight.

Under District of Columbia law,

[i]n prosecutions for any criminal offense all persons advising, inciting or conniving at an offense, or aiding the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be.

D.C.Code § 22–1805 (2001). Thus, if a passenger “advis[es], incit[es], or conniv[es] at” flight in an automobile from a law enforcement officer, or if he “aid[s] the principal offender” in fleeing, then, under the literal terms of the statute, he or she is subject to prosecution just as the driver is.

We know of no District of Columbia case law directly in point with respect to the particular scenario presented here. In Fox v. United States, 11 A.3d 1282 (D.C.2011), the driver of a vehicle and his two passengers were convicted of armed robbery and related offenses, as well as of fleeing from a police officer. This court affirmed the convictions of all three defendants of the latter offense. The issue presented to us by Anderson in this case, however, was not raised by any of the defendants in Fox, and we did not address it. As this court recently had occasion to reiterate in Richman Towers Tenants' Ass'n, Inc. v. Richman Towers LLC, 17 A.3d 590, 610 (D.C.2011):

“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925); Murphy v. McCloud, 650 A.2d 202, 205 (D.C.1994) (quoting Webster ). “[T]he rule of stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question.” District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C.1996) (quoting Murphy, 650 A.2d at 205).

Case law from other jurisdictions suggests that conventional aiding and abetting principles should apply here. In State v. Patch, 594 N.W.2d 537 (Minn.Ct.App.1999), the police were seeking to serve a woman with outstanding arrest warrants. The defendant alerted the woman that “the cops are coming to get you.” The defendant was convicted of obstructing legal process. The appellate court reversed the defendant's conviction of that offense, but observed that the state “could ... have charged [the defendant] with aiding and abetting [the other woman] to flee a police officer in a motor vehicle.” Id. at 540.

In State v. Hines, 465 So.2d 958 (La.App.2nd Cir.1985), a passenger in a motor boat was convicted, ...