Headspeth v. United States

• Decision Date: 13 March 2014
• Docket Number: No. 11–CF–1669.,11–CF–1669.
• Citation: 86 A.3d 559
• Parties: Vernon HEADSPETH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

86 A.3d 559

Vernon HEADSPETH, Appellant,

v.UNITED STATES, Appellee.

No. 11–CF–1669.

District of Columbia Court of Appeals.

Submitted Dec. 11, 2013.

Decided March 13, 2014.

James Klein, Alice Wang, and Joshua Deahl, Public Defender Service, were on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, Justin Dillon, and Kristina L. Ament, Assistant United States Attorneys, were on the brief for appellee.

Before BLACKBURNE–RIGSBY and THOMPSON, Associate Judges, and RUIZ, Senior Judge.

THOMPSON, Associate Judge:

A jury convicted appellant Vernon Headspeth of aggravated assault while armed, assault with a dangerous weapon, assault with intent to rob while armed, three counts of possession of a firearm during the commission of a crime of violence, assault with significant bodily injury, carrying a dangerous weapon, possession of an unregistered firearm, and unlawful possession of ammunition. In this appeal, he contends that the trial court erred by giving the jury an instruction that permitted jurors to infer, from the evidence that appellant tried to escape from restraint by the arresting officer, that appellant was conscious of his guilt of the charged offenses. That evidence had been presented without objection, and thus the court had had no occasion to consider, during the presentation of evidence, whether the probative value of the evidence was substantially outweighed by any potential prejudicial impact on the jury. When time came to instruct the jury, the court gave a consciousness-of-guilt (or so-called “flight”) instruction (1) without the jury having learned, as the court had learned from counsel's proffers, that there was a “history” between appellant and the arresting officer that might have explained appellant's conduct, and (2) without considering whether, in light of the jury's lack of information about that history, the instruction would be unfairly prejudicial. We are persuaded that in these circumstances the court erroneously exercised its discretion in giving the challenged instruction. Because we cannot say with assurance that the error was harmless, we reverse appellant's convictions and remand for a new trial.

I.

The evidence at trial showed that on December 2, 2010, Brandon Jennings was shot near an apartment building at 2643 Birney Place, S.E., in the neighborhood known as Park Chester. Jennings testified at trial that, responding to a telephone call from appellant to “come holler at me,” he went to that location to meet appellant, from whom he had regularly purchased marijuana during several months prior to the shooting. After Jennings arrived, appellant produced a gun and instructed Jennings to “give that shit up.” Jennings testified that he understood the statement to mean that appellant intended to rob him, and that he therefore ran out of the building, attempting unsuccessfully to knock the gun out of appellant's hands. Jennings heard three gunshots as he ran and was struck by at least one of the bullets. After collapsing on the ground, he was carried by ambulance to a hospital, where he was treated for injuries that included a nearly complete transection of his femoral artery (which caused potentially fatal blood loss), injuries to his bladder, and a two-centimeter tear to his rectum that required him to use a colostomy bag.

When Metropolitan Police Department (“MPD”) detectives visited Jennings in the hospital on December 8, 2010, and showed him a photo array, he identified appellant as his assailant. Raymont Owens, a heroin addict who frequented the area where the shooting took place, told police that he had witnessed the shooting, and he likewise identified appellant as the shooter. On December 16, 2010, police obtained a warrant for appellant's arrest.

On December 17, 2010, MPD officer Matthew King was on routine patrol and spotted appellant outside a building located at 2641 Birney Place. After verifying that a warrant remained outstanding for appellant's arrest, Officer King called for backup and then approached appellant, who by that point was inside the building, descending a staircase. Officer King instructed appellant to “come over to me” and “place [your] hands on the wall ... and spread [your] feet,” but (so as not to “scare [appellant] off”) did not announce the purpose of the stop or tell appellant that he was under arrest. Officer King put one of appellant's arms behind his back and was attempting to put the second arm behind his back when appellant “pulled away” and “tried to run away” “toward the ... door to get out of the apartment” building. King testified that he grabbed appellant's jacket, but appellant “kind of roll[ed] out of his jacket,” causing both men to fall down the steps.¹ King and the backup officers then placed appellant under arrest. The officers searched appellant's person but found no guns, drugs, or other contraband.

When the court and the parties turned to a discussion of jury instructions, the prosecutor, citing Officer King's testimony about the details of appellant's arrest, asked the court to give the jury an instruction regarding the flight of an arrestee. Defense counsel objected, noting that there was “not a lot of flight because it didn't involve a chase” ² and questioning whether any flight that did take place could be attributed to consciousness of guilt “if [appellant] didn't know” about the outstanding warrant for his arrest or that he had been accused of a crime. Counsel also reminded the court of the fact, “not in evidence,” that appellant had “a history” with Officer King. Counsel was referring to the prosecutor's disclosure to the court, several days earlier, that Officer King had arrested appellant in 2009 or 2010 for threatening him and that appellant had been acquitted of the charge after a bench trial. The prosecutor had also disclosed to the court that in June 2010, while walking his beat in the Park Chester/Barry Farm area (a beat assignment that resulted in Officer King's knowing appellant “pretty well”), Officer King had “locked [appellant] up” on a charge of contempt for violating an order, entered in a marijuana possession case, requiring appellant to stay away from that area.³ During the colloquy about whether the court would give a flight instruction, defense counsel told the court that this history was “something Your Honor can consider” and “something the [c]ourt can consider ... in terms of whether this really reaches the level of flight.”

The court commented that it was “not sure [appellant] knew that he had a warrant” and also noted that appellant “is a marijuana dealer,” implying that he may have sought to avoid being arrested by Officer King for reasons unrelated to the shooting of Jennings. The prosecutor responded that this point could be argued to the jury, but suggested that it was not a good argument since appellant “didn't actually [have] anything on him” at the time of the encounter with Officer King. Defensecounsel stated that he didn't “want to take up much more time” with the discussion, but noted that “technically[,] [appellant] didn't have to obey the officer,” who had merely said “[c]ome here” without announcing that appellant was under arrest.

Commenting that the standard flight instruction ⁴ is “not really a very powerful instruction and [is] ... reasonably balanced and appropriate,” the court agreed to give the instruction, but said that it would modify it to state that appellant had been “confronted by a police officer” rather than “accused of a crime.” Thus, after counsel for both sides had delivered their closing arguments, the court instructed the jury as follows:

[Y]ou have heard evidence that the defendant attempted to flee when approached by the police. Now, it's up to you to decide whether he attempted to flee. If you find that he did so, you may consider his attempt as tending to show feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that the defendant may have had reasons to flee that are fully consistent with innocence in this case.

If you find that the defendant attempted to flee, you should consider such evidence along with all the other evidence in this case and give it as much weight as you think it deserves.

During his closing argument, the prosecutor referred as follows to appellant's conduct at the time of his arrest:

[Y]ou also, of course, have Matt King, who said that ... when he saw the defendant, he ... called for backup to make sure he didn't run. It turned out to be pres[cient] because, in fact, the defendant did try to run. He tried to slip out of his jacket and run away, but he didn't get far because backup was right there.... Why else would he run—why else would he run if he wasn't guilty?

...

Why else would he run when Officer King came up to him, ladies and gentlemen?

The court sustained defense counsel's objection to this line of argument. At the bench, the court admonished the prosecutor that “you can submit that the evidence shows that that's why he ran ... [but] [y]ou just said that he knew he was guilty.” Resuming his closing argument, the prosecutor returned to the issue of appellant's arrest, arguing, “You [know] he ran from Officer King. Why would he run? Why did he run? That's the witness testimony you have in this case, ladies and gentlemen.”

On appeal, appellant renews his argument that the “consciousness of guilt” or “flight” instruction was unsupported by the evidence.⁵ He contends, inter alia, (1) that his conduct during the encounter with Officer King on December 17 “did not amount to flight”; (2) that even if his conduct did amount to flight, there was no reasonable inference that the flight was due to consciousness of guilt of the charged offenses, especially given that appellant “had considerable reasons to avoid Officer King, regardless of whether he had engaged in any wrongdoing.” ⁶

II.

This court...