Malloy v. United States

• Decision Date: 21 June 2018
• Docket Number: No. 16–CF–344,16–CF–344
• Parties: Darryl MALLOY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

186 A.3d 802

Darryl MALLOY, Appellant,

v.UNITED STATES, Appellee.

No. 16–CF–344

District of Columbia Court of Appeals.

Argued November 16, 2017

Decided June 21, 2018

Matthew B. Kaplan, Arlington, for appellant.

Sumit Mallick, Assistant United States Attorney, with whom Channing D. Phillips, Washington, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Lindsey Merikas, Assistant United States Attorneys, were on the brief, for appellee.

Before Easterly and McLeese, Associate Judges, and Ferren, Senior Judge.

Dissenting opinion by Associate Judge McLeese, at page 822

Ferren, Senior Judge:

After a jury trial, appellant Darryl Malloy was acquitted of several gun charges but convicted of a felony threat.¹ On appeal, he argues for reversal on three grounds:

1. The trial court abused its discretion by admitting in evidence testimony about an uncharged prior threat by Malloy against complainant Anthony Johnson.

2. The trial court also abused its discretion in (a) precluding admission of certain out-of-court statements made by Malloy and Johnson during the charged incident, and (b) limiting the jury's consideration of other such statements that were admitted in evidence.

3. The trial court plainly erred in omitting the mens rea element of the felony threats offense when instructing the jury.

We affirm as to the first two grounds but reverse Malloy's conviction for instructional error and remand the case for further proceedings.

I. Facts and Proceedings

According to the government's evidence, during the evening on July 22, 2015, Johnson was visiting his son, Anthony Tate, and his son's mother, Shaunette Tate, in the 2700 block of Bruce Place Southeast, also known as Woodland Terrace. At around 7:50 p.m., after sitting for awhile on the patio outside the Tate home, Johnson walked across the patio to his car close by in a parking lot, in order to make a call from his phone that was charging there. While Johnson was sitting in his car, Malloy approached him, calling him "hot" (meaning a snitch), accusing him of always calling the police, and asking whether Johnson was then on the phone with the police. When Shaunette Tate saw Malloy and Johnson arguing, she called Anthony Tate to "come outside" where the altercation was occurring.

After hearing his mother, Anthony Tate approached Johnson and Malloy, who continued to call Johnson "hot." Malloy then asked Johnson, "What if I shoot your car?" to which Johnson replied, "[W]ell, I guess that make you feel good," whereupon Malloy asked, "What if I shoot you?" to which Johnson responded, "I guess I be dead." Malloy then pulled out a black pistol from his waistband and pointed it at Johnson.

Anthony Tate intervened, pushing Malloy's arm in an effort to get the firearm out of Johnson's face. Johnson then got into his car and drove away, stopping down the block next to a marked police car where Sergeant Ellen Bader was sitting. Johnson described the incident to Sergeant Bader and identified Malloy as the man who had threatened him, referring to Malloy by his nickname "Pop Pop." At trial, Sergeant Bader described Johnson as "really upset" and "agitated."

During the testimony of Johnson and the two Tates, the government elicited evidence of a prior instance in which Malloy had threatened Johnson.² Shaunette Tate testified that a couple of weeks before the July 22, 2015, incident, she observed Malloy yelling across the parking lot at Johnson, calling him "hot." During that confrontation, she added, Malloy told Johnson that "he'd shoot [Johnson's] car up." Johnson also testified for the government, confirming that he and Malloy had had prior confrontations in which Malloy had "said threatening words" to him.

Finally, during Anthony Tate's testimony, the prosecutor played for the jury a recording of a telephone call from the D.C. Jail in which Malloy was on the phone with a friend. During the call, Malloy's friend went to find Anthony Tate so that Malloy could speak with him. After Tate was handed the phone, Malloy told Tate that he was to go to his father (Johnson) and tell him not to come to court because Tate and Tate's mother still have to live around there. At the end of the call, Malloy advised Tate: "[T]ell your father I still live right there. Me and my mom still live there. You know how that shit go." Malloy then said, "That's not a threat" before hanging up.

During the defense case-in-chief, Malloy called two eyewitnesses to testify about the incident. Damon Hudson, a friend of Malloy, testified that he and Malloy had been playing basketball with a group of friends during the afternoon and early evening hours of July 22, 2015, near the parking lot where Johnson was sitting in his car on the phone. Hudson further testified that as he, Malloy, and the others were walking back to the apartment complex, they ran into Johnson, who had his cell phone out. Malloy asked why Johnson was taking pictures of him, and the two began to argue. During the argument, according to Hudson, he heard Johnson tell Malloy to go get his gun, at which point Malloy told Johnson he did not have a gun, lifting his shirt to show Johnson that no gun was in his waistband. Johnson then sped off in his car. During the altercation, Hudson did not see Shaunette Tate or Anthony Tate in or near the parking lot.

Charles Malloy, appellant Malloy's brother, also testified for the defense, informing the jury that he had been with his brother before he got into an argument and saw part of the argument with Johnson. Charles Malloy added that when he approached his brother and Johnson in the parking lot, Charles Malloy saw Johnson pulling off in his car saying, "Have your gun when I get back."

At the close of the evidence, the trial court instructed the jury on the elements of each crime, using the standard "Redbook" instructions at the time.³

Approximately four hours after jury deliberations began, the jury sent the trial court a note: "[W]e have reached an impasse on Count 3." While the parties were reviewing that note, the clerk gave the trial court a second note in which the jurors inquired: "May we consider the audio phone call as a threat of Count 3?" As both the government and defense counsel agreed, the court told the jurors that "the answer to that question is no" and that they should "continue their deliberations."

After returning to deliberations, the jury found Malloy guilty of threatening to injure or kidnap a person, but acquitted him of assault with a dangerous weapon,⁴ possession of a firearm during a crime of violence,⁵ and carrying a pistol without a license outside a home or place of business.⁶ Thereafter, the court sentenced him to twenty-four months of incarceration. Malloy then filed this timely notice of appeal.

II. Johnson Evidence

Malloy challenges the trial court's decision to admit evidence that he previously threatened Johnson. Specifically, he opposes the admission of testimony regarding the altercation that occurred a few weeks before the charged conduct, when Malloy threatened to shoot Johnson's car. During trial, the government argued—and the trial court agreed—that evidence of Malloy's prior threat was relevant and admissible under our en banc decision in Johnson ,⁷ for two reasons: the threat was "direct and substantial proof of the crime charged," and it was "necessary to place [the] incident in context." The trial court also concluded that this evidence was more probative than prejudicial.

Malloy contends, to the contrary, that the prior threat was inadmissible "propensity" evidence and, in any event, was more prejudicial than probative. He fails to persuade us.

We review for abuse of discretion.⁸ We have held that "evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged."⁹ This "disposition" or "propensity" limitation does not preclude admission of "other crimes" evidence "when relevant to factors such as motive, intent, or the identity of the person charged with the commission of the crime on trial."¹⁰ In addition, as we announced in Johnson , other crimes evidence is not barred when it "(1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context."¹¹ On the other hand, even when an "other crimes" exception would otherwise apply, the trial court must exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice it poses."¹²

As we have noted, Malloy insists that the prior threat was forbidden propensity evidence, not subject—as the trial court ruled—to Johnson exceptions (1) and (3). We need not resolve whether Malloy's prior threat was admissible under exception (1) as "direct and substantial proof of the charged crime."¹³ We are satisfied that the threat was admissible under exception (3) as "necessary to place the charged crime in an understandable context."¹⁴

This court derived exception (3) from earlier decisions sustaining admission of other crimes evidence offered "to explain the immediate circumstances surrounding the offense charged,"¹⁵ that is, evidence derived from "events so closely related to the charged offense in time and place that [it is] necessary to complete the story of the crime ... by placing it in context of nearby and nearly contemporaneous happenings."¹⁶

Evidence of Malloy's suspicions of Johnson as a police informant and of their contentious relationship "was relevant to determining whether the defendant's words charged as threats would have conveyed a fear of serious bodily harm to an ordinary hearer" in Johnson's situation (the test applicable at the time of trial).¹⁷ Furthermore, testimony about the prior altercation, reflecting the men's preexisting hostility to each other, was admissible to show that Malloy's suspicion of Johnson as a police...