Fleming v. United States, No. 14-CF-1074

• Citation: 224 A.3d 213
• Decision Date: 30 January 2020
• Docket Number: No. 14-CF-1074
• Parties: Bernard J. FLEMING, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

224 A.3d 213

Bernard J. FLEMING, Appellant,

v.UNITED STATES, Appellee.

No. 14-CF-1074

District of Columbia Court of Appeals.

Argued En Banc January 11, 2018

Decided January 30, 2020

Peter H. Meyers, Washington, DC, for appellant.

Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, S. Vinet Bryant, and Kathryn L. Rakoczy, Assistant United States Attorneys, were on the brief, for appellee.

Daniel Gonen, with whom Samia Fam, Alice Wang, and Joshua Deahl were on the brief, for Public Defender Service, amicus curiae.

Mark S. Davies, Washington, DC, was on the brief for Deonte J. Bryant, amicus curiae.

Jessica Ring Amunson and Michael E. Stewart, Washington, DC, were on the brief for Terrance M. Bush, amicus curiae.

Before Blackburne-Rigsby, Chief Judge, and Glickman, Fisher, Thompson, Beckwith, Easterly, and McLeese, Associate Judges.

Concurring opinion by Associate Judge Fisher, joined by Associate Judge Thompson, at page 231.

Opinion concurring in the judgment by Associate Judge Easterly, joined by Associate Judge Beckwith, at page 232.

McLeese, Associate Judge:

Appellant Bernard Fleming challenges his conviction for second-degree murder while armed, arguing that the jury was erroneously instructed about how to determine whether Mr. Fleming and his codefendant were responsible for causing the death at issue. In instructing the jury, the trial court in this case relied on this court's decision in Roy v. United States , 871 A.2d 498 (D.C. 2005), which addressed the issue of homicide causation in the context of a "gun battle," id. at 505-09. A division of the court affirmed Mr. Fleming's conviction, Fleming v. United States , 148 A.3d 1175 (D.C. 2016), but the full court decided to reconsider Roy in light of the Supreme Court's subsequent decision in Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). Fleming v. United States , 164 A.3d 72 (D.C. 2017). In light of Burrage , we hold that the instructions given in Roy and in this case did not adequately convey to the jury the requirement that -- possibly barring unusual circumstances not present in this case -- a defendant cannot be held to have personally caused a death unless an action by the defendant is a but-for cause of the death, i.e., unless it is true that in the absence of the defendant's action the death would not have occurred. We therefore reverse Mr. Fleming's conviction for second-degree murder while armed and remand for further proceedings. Mr. Fleming raises a variety of other challenges to the causation instruction in this case, and we address those challenges to the extent that they might affect proceedings on remand.

I.

The opinion for the division described the evidence at trial, Fleming , 148 A.3d at 1178-79, and we borrow freely from that description here. Michael Jones was shot and killed during a gunfight. The shooting was the culmination of events that began with a confrontation earlier the same evening between Mr. Fleming and Michael Jones's brother, Maurice Jones. Id. at 1178. (To avoid confusion we occasionally refer to Michael and Maurice Jones using their first names.)

On the evening at issue, Maurice left his apartment to walk to a nearby store. On the way there, Maurice encountered Mr. Fleming, who was with two other men. Mr. Fleming taunted Maurice and struck him on the chin. Being outnumbered, Maurice retreated to his apartment. Fleming , 148 A.3d at 1178.

About half an hour later, Maurice heard banging on his front door and several voices outside. He ignored the banging and did not open the door. After the banging stopped, Maurice looked out and saw Mr. Fleming waiting with Joseph Peoples and Rakeem McMillan. Maurice phoned his brother Michael and a friend named Eric Cunningham and asked them to come to his apartment. While he waited for them, Maurice looked outside from time to time and saw Mr. Fleming and Mr. Peoples gesture for him to come out. After a while, Mr. Fleming and his companions departed. Fleming , 148 A.3d at 1178.

Not long afterward, Michael and Mr. Cunningham arrived at Maurice's apartment, together with a friend of Michael's named James Hamlin. The four men then left on foot to look for Mr. Fleming. About a block away, Maurice spotted Mr. Peoples rapidly descending the exterior stairway of the Lincoln Tower apartment building. Maurice called to Mr. Peoples, but Mr. Peoples ignored Maurice and crossed the street to join Mr. McMillan. Moments later, according to Maurice, Mr. Peoples turned and began shooting at him and his three companions as they arrived at Lincoln Tower. Fleming , 148 A.3d at 1178-79.

Michael drew a gun and fired back at Mr. Peoples, but Michael then was killed by a bullet that struck him in the back of the head. Mr. Hamlin also fired a gun in response to the attack. Shell casings from two different weapons were found near Michael's body. Fleming , 148 A.3d at 1179.

Other shell casings recovered from the scene indicated that shots also were fired from a second-floor balcony of Lincoln Tower. Video-surveillance footage from inside Lincoln Tower shows Mr. Fleming on that balcony during the shooting. The surveillance footage also appears to show Mr. Fleming retrieving what could have been a weapon from inside the building and bringing it to the balcony just before the shooting started. Footage from just after the shooting apparently shows Mr. Fleming hurrying to the sixth floor and meeting with Mr. Peoples. Mr. Peoples appears to receive something from Mr. Fleming that Mr. Peoples then stashes in a stairwell. The police recovered firearms from that location. Relying on this evidence, the United States contended at trial that Mr. Fleming armed himself after seeing Maurice and company arrive at Lincoln Tower, shot at them from the balcony, and then, after Michael was down and the battle ended, handed his gun to Mr. Peoples, who hid it in the stairwell. Fleming , 148 A.3d at 1179.

Because the bullet that struck Michael fragmented, it was not possible to tell whether that bullet was fired by Mr. Fleming, Mr. Peoples, or Mr. Hamlin. Fleming , 148 A.3d at 1179.

II.

The United States presented three distinct theories of Mr. Fleming's liability at trial. First, if Mr. Fleming fired the fatal bullet, then he could be found guilty as a principal. Second, if Mr. Peoples fired the fatal bullet, then Mr. Fleming could be found guilty as an aider and abettor. But the evidence left open a third scenario: that Mr. Hamlin inadvertently shot Michael. The United States conceded at trial that Mr. Fleming could not be considered as having aided and abetted Mr. Hamlin, and we therefore have no occasion to address that issue. Rather, to address the possibility that Mr. Hamlin shot Michael, the United States relied on a causation theory. The second-degree-murder instruction required that the jury find that the defendant "caused the death of Michael Jones" and that, "at the time he did so," the defendant "intended to kill or seriously injure" or "acted in conscious disregard of an extreme risk of death or serious bodily injury." The jury was further instructed that "[a] person causes the death of another person if his conduct is a substantial factor in bringing about the death and if it was reasonably foreseeable that death or serious bodily injury could result from such conduct." Finally, the jury was given a "gun battle" causation instruction based on this court's decision in Roy . Specifically, the trial court instructed the jury that a defendant should be deemed to have caused Michael's death if (1) the defendant was armed and prepared to engage in a gun battle; (2) the defendant in fact engaged in a gun battle; (3) the defendant's conduct was a substantial factor in the death of Michael Jones; (4) it was reasonably foreseeable that death or serious bodily injury could occur as a result of the defendant's conduct during the gun battle; and (5) the defendant did not act in self-defense.

Mr. Fleming, supported by several amici, raises a number of objections to the causation instructions in this case. In opposing the petition for rehearing en banc and in its brief to the en banc court, the United States contends that Mr. Fleming did not properly preserve one of those objections in briefing before the division: the argument that the court should overrule Roy . We are not persuaded by the United States's contention. A division of the court cannot overrule a prior decision of the court. M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971). It is difficult to see why a litigant should be required to present an argument to a division of the court that the division of the court would be required to reject. Cf. District of Columbia Hous. Auth. v. District of Columbia Office of Human Rights , 881 A.2d 600, 613 n.18 (D.C. 2005) (failure to object before agency perhaps may be excused in rare circumstance in which "it truly and clearly would have been futile to raise the claim in the agency venue"). The United States cites no case holding that a litigant is required to present to a division of the court the argument that a prior holding of the court should be overruled, and we are aware of no such case. We therefore consider Mr. Fleming's contention that this court should overrule Roy . At oral argument, the United States for the first time suggested that other of Mr. Fleming's arguments were not properly preserved in the trial court. We are not inclined to consider the United States's belated issue-preservation argument. See, e.g. , In re T.L. , 859 A.2d 1087, 1090 n.6 (D.C. 2004) (District of Columbia failed to properly preserve on appeal argument that appellant failed to properly preserve argument in trial court).

In this opinion, we address issues of law that we decide de novo: how to interpret the second-degree-murder statute and whether the instructions to the jury in this case adequately communicated the...