Fleming v. United States

• Citation: 148 A.3d 1175
• Decision Date: 10 November 2016
• Docket Number: No. 14–CF–1074,14–CF–1074
• Parties: Bernard FLEMING, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

148 A.3d 1175

Bernard FLEMING, Appellant,
v.
UNITED STATES, Appellee.

No. 14–CF–1074

District of Columbia Court of Appeals.

Argued April 5, 2016
Decided November 10, 2016

Peter H. Meyers for appellant.

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

Before Glickman, Fisher, and Easterly, Associate Judges.

Opinion by Associate Judge EASTERLY, concurring in the judgment and joining in Parts I, III, and IV of the opinion for the court, at pages 1184.

Glickman, Associate Judge:

In Roy v. United States ,¹ this court approved a jury instruction in a murder prosecution on the "gun battle" (or "urban gun battle") theory of causation. The instruction permitted the jury to find that the defendant, by engaging in a gun battle in a public space, was responsible for causing the death of an innocent bystander killed by a stray bullet even if it was not the defendant who fired the fatal round. For the jury to come to that conclusion, the approved instruction required it to find, inter alia , that the bystander's death was a "reasonably foreseeable" consequence of the defendant's participation in the gun battle.²

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The trial court gave a similar gun battle causation instruction in the present case, and the jury found appellant guilty of second-degree murder while armed.³ But whereas the victim in Roy was an innocent bystander, in this case it was one of appellant's antagonists in the shootout who was killed. The prosecution requested the instruction because evidence suggested that the fatal shot may have been fired not by appellant or one of his confederates, but by a confederate of the decedent. Appellant, who objected at trial, argues that a gun battle causation instruction is improper where the decedent was a participant in the battle rather than, as in Roy and other cases in which this court previously has encountered the instruction,⁴ an innocent bystander. We disagree, however, and conclude that the trial court did not err in giving the gun battle instruction in this case.

Appellant also seeks a new trial on grounds of prosecutorial misconduct, but we conclude that the record does not support his claims of impropriety. We therefore uphold appellant's convictions. However, as the government concedes, his three PFCV convictions merge, so we direct that two of those counts be vacated on remand.⁵

I.

Appellant was tried for the murder of Michael Jones in a gunfight that erupted on the night of July 7, 2012. The shooting was the culmination of events that began with a hostile confrontation earlier that evening between appellant and Michael Jones's brother, Maurice Jones.

Maurice testified that at around 7:00 p.m. on July 7, he left his apartment at Eighth and R Street Northwest to walk to a nearby store. On the way there, Maurice encountered appellant, who was with two other men. Appellant taunted Maurice and struck him on the chin. Being outnumbered, Maurice retreated to his apartment.

About half an hour later, Maurice and his girlfriend, Kendra Wingate, heard banging on his front door and several voices outside. They ignored the banging and did not open the door. After the banging stopped, Maurice looked out and saw appellant waiting with two companions named Joseph Peoples and Rakeem McMillan. In order to confront them on even terms, 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 observed appellant, Peoples, and McMillan gesture for him to come out. After a while, appellant and his companions departed.

Not long afterward, Michael Jones and Eric 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 appellant. About a block away, Maurice spotted Joseph Peoples rapidly descending an exterior stairway on the apartment building at 1730 Seventh Street known as Lincoln

148 A.3d 1179

Tower. Ignoring Maurice's hail, Peoples crossed Seventh Street to join Rakeem McMillan in front of a church. Moments later, according to Maurice, Peoples turned and began shooting at him and his three companions as they arrived at Lincoln Tower.

Michael drew a gun and fired back at Peoples before he was killed by a bullet in the head. Although Maurice testified that no one else in his group was armed, the parties at trial stipulated that Hamlin also fired a gun in response to the attack. The stipulation was corroborated by shell casings from two different weapons found in the vicinity of Michael's body. This, in conjunction with inconclusive forensic evidence regarding Michael's wound and the bullet recovered from his body, raised the possibility that Michael was killed by "friendly fire" from Hamlin.

Other shell casings recovered by police at the scene indicated that shots also were fired from a second-floor balcony of Lincoln Tower overlooking Seventh Street. Video surveillance footage obtained by the police from inside Lincoln Tower showed appellant on that balcony during the shooting.⁶ The surveillance footage also appeared to show appellant 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 showed appellant hurrying to the sixth floor and rendezvousing with Peoples, and Peoples receiving something from appellant that he then stashed in a stairwell. The police recovered firearms from that location. Relying on this evidence, the government contended at trial that appellant 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 Peoples, who hid it in the stairwell.

Both appellant and Peoples were arrested later that night. They were indicted on one count of first-degree murder while armed, three counts of assault with intent to kill while armed, and related charges. The two were tried together.⁷ At the close of the prosecution's case-in-chief, the trial court granted the government's motion to dismiss the first-degree murder counts and to proceed instead on the lesser-included offense of second-degree murder while armed. While the jury found appellant guilty of that offense (along with two counts of assault with intent to kill while armed and the related weapons offenses), it acquitted Peoples of the homicide.⁸

II.

Appellant argues that the trial court erred as a matter of law by giving a gun battle causation instruction where the victim was not a mere bystander but rather was an active participant in the battle. Our review of this contention is de novo , requiring us to determine whether the instruction is a correct and adequate statement of the law.⁹

The gun battle causation instruction this court approved in Roy reflected the fact that the murder victim in that case was a

148 A.3d 1180

bystander; it required the jury to determine, inter alia , whether "it was reasonably foreseeable that death or serious bodily injury to innocent bystanders could occur as a result of the defendant's conduct" in engaging in a gun battle.¹⁰ In this case, where the victim was not a bystander, the trial court omitted the reference to innocent bystanders and required the jury to determine whether "it was reasonably foreseeable that death or serious bodily injury [ ] could occur as a result of the defendant's conduct during the gun battle."¹¹ The instruction was given to clarify that appellant could be liable for killing Michael Jones even if, as evidence suggested, the fatal shot might have been fired by Hamlin rather than by appellant or his accomplice.

We conclude that the trial court's modified gun battle causation instruction was legally sound. As stated in Roy , "[i]n this jurisdiction we have held findings of homicide liability permissible where: (1) a defendant's actions contribute substantially to or are a substantial factor in a fatal injury ... and (2) the death is a reasonably foreseeable consequence of the defendant's actions."¹² The gun battle instruction applies these principles of proximate causation to the realities of urban warfare, in which the antagonists are collectively responsible for creating a zone of great danger—including a substantial likelihood that errant bullets will hit unintended targets.¹³ It is true that Roy focused on the "highly increased risk to noncombatants" in particular and reasoned that "[i]t is this increased risk to innocent bystanders which justifies the application of proximate cause liability to those participants who willfully choose to engage in these battles."¹⁴ But the combatants themselves are obviously at great risk as well, and it surely is no less foreseeable that a stray bullet fired in the heat of a gun battle will unintentionally hit an ally or confederate in the fight rather than someone outside it. For the...