Parker v. United States

• Decision Date: 22 July 2021
• Docket Number: & 17-CO-1024,Nos. 17-CO-755,17-CO-870,s. 17-CO-755
• Citation: 254 A.3d 1138
• Parties: Timothy PARKER, Marcellus McCray, and Antonio Fortson, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

254 A.3d 1138

Timothy PARKER, Marcellus McCray, and Antonio Fortson, Appellants,

v.UNITED STATES, Appellee.

Nos. 17-CO-755

17-CO-870

& 17-CO-1024

District of Columbia Court of Appeals.

Argued January 13, 2021^*

Decided July 22, 2021

Peter H. Meyers for appellant Parker.

David H. Reiter for appellant McCray.

William R. Cowden for appellant Fortson.

David P. Saybolt, Assistant United States Attorney, with whom Jesse K. Liu, United States Attorney, Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Laura Bach, and Silvia Gonzalez Roman, Assistant United States Attorneys, were on the briefs, for appellee.

Before Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge, and Ruiz, Senior Judge.

Glickman, Associate Judge:

After a trial in 2012, a jury convicted appellants Timothy Parker, Marcellus McCray, and Antonio Fortson of voluntary manslaughter while armed and other felony offenses.¹ In their direct appeals, this court rejected most of appellants’ claims of error and remanded their cases to the trial court for further proceedings and rulings on two issues. These concerned (1) whether the government suppressed favorable evidence in violation of its obligations under Brady v. Maryland ,² and (2) whether the trial court precluded appellants from establishing that a government witness suffered from a mental disability

that seriously diminished his credibility. The present appeals are from the trial court's rulings against appellants on each of those issues on remand. In addition, for the first time in these appeals, appellants contend that their manslaughter convictions must be vacated because the trial court gave the jury the "urban gun battle" instruction that this court subsequently held erroneous in Fleming v. United States .³

We conclude that appellants’ Fleming challenge to their convictions is not properly before us at this time, because appellants have not shown exceptional circumstances excusing their failure to raise that challenge in their direct appeals. Accordingly, appellants first must bring their Fleming claims in Superior Court via a collateral challenge to their convictions pursuant to D.C. Code § 23-110. We affirm the trial court's rulings on remand regarding the other issues.

I.

In Fleming , this court sitting en banc considered a challenge to the causation instruction regarding a defendant's potential liability for a homicide committed in an "urban gun battle." The instruction informed the jury that:

[A] defendant should be deemed to have caused [the victim'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 [the victim] ; (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.⁴

This court had explicitly approved this causation instruction in Roy v. United States .⁵ But sitting en banc in Fleming , we overruled Roy and held this instruction inadequate because it did not convey to the jury that a defendant normally "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."⁶ Requiring the defendant's conduct merely to have been "a substantial factor" in the victim's death "is not remotely equivalent," we said, to the requirement of but-for causation.⁷

The jury at appellants’ trial received the causation instruction subsequently held defective in Fleming . Appellants now argue that the instructional error requires that their manslaughter convictions be vacated. In opposition, the government argues that this claim of error at trial is not properly before us, because appellants did not present it on direct appeal of their convictions in McCray I and cannot demonstrate exceptional circumstances excusing that failure.⁸ We agree with the government.

"It is a general principle of appellate practice that ‘where an argument could have been raised on an initial appeal, it is inappropriate to consider the argument on a second appeal following remand.’ "⁹ Failure to make the argument in the initial appeal amounts to a waiver. This "rule serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals."¹⁰ An appellate court does have discretion to "waive the waiver" and excuse a returning appellant's failure to have raised a claim in an initial appeal, but courts normally exercise this discretion "only in exceptional circumstances, where injustice might otherwise result."¹¹

Appellants argue that they objected to the urban gun battle instruction in their direct appeals, and that they are renewing those objections in what is now merely a continuation of those direct appeals. Both parts of this argument are inaccurate.

In their initial appeals of their convictions, appellants did not object to the instruction on the Fleming ground that it misstated the causation requirement. Rather, appellants mainly argued that it was error to give the urban gun battle instruction in combination with an instruction on aiding and abetting, and that the instructions "constituted an improper constructive amendment" of the indictment.¹² McCray I rejected those entirely different contentions. And while Mr. Fortson complained in his brief on direct appeal that the urban gun battle instruction allowed the jury to convict him without finding he had fired the fatal shot, that was a complaint about the main effect and purpose of the instruction, not an argument for its invalidity. This objection too was substantively different from an argument that the instruction improperly dispensed with the requirement of but-for causation in favor of a substantial factor test. In fact, Fleming confirms that a defendant who did not fire the fatal bullet may be convicted as a but-for cause of the victim's death if his actions instigated the shooting, by another, that led to the victim's death.¹³

Appellants also are mistaken in arguing that McCray I ’s remand to the trial court did not end their direct appeals, and that their current appeals from the trial court's rulings on remand should be viewed as a continuation of their direct appeals. As this court explained in Bell v. United States ,¹⁴ there are two types of remand. On "a record remand, this court retains jurisdiction over the case ... [but] the record is returned to the trial court ... to make additional findings, to hear further testimony, or to explain a ruling. The record is then returned to this court for decision."¹⁵ In contrast, a case remand "returns the case to the trial court for all purposes. This court retains no jurisdiction over the case and the [first] appeal is terminated."¹⁶

McCray I expressly ordered a "case" remand, not a record remand.¹⁷ Our opinion did not direct that the record be returned to us after the proceedings on remand; it specified that, after holding a hearing, the trial court itself should "enter an order" determining the outstanding "mental disabilities

issue" and whether that issue entitled appellants to a new trial.¹⁸ It follows that we are dealing now with "a new appeal, separate from the [direct] appeal that was terminated when the case was remanded."¹⁹

That McCray I ordered a case remand also explains why this case is not in the same posture as Fleming when the en banc court decided it could hear a challenge to the urban gun battle instruction that had not been presented in the initial appeal heard by a division of the court. When the en banc court considered the claim in Fleming , there had been no intervening case remand; the case still was on direct appeal in this court.

In sum, the present appeals are not a continuation of appellants’ initial direct appeals in this court. McCray I terminated appellants’ direct appeals. The Superior Court proceedings on remand resolved a collateral attack by appellants on their convictions. Appellants were, of course, allowed to appeal the judge's adverse rulings against them in those collateral proceedings (the rulings on their Brady and witness-confrontation claims, the only claims before the judge). But that did not entitle appellants to include in their appeal a separate claim (of instructional error at trial), which they never presented on remand and on which the remand judge never ruled. This court repeatedly has held that, in an appeal from the denial of a collateral motion to set aside a criminal conviction, we will not consider claims the movant did not present in the proceedings below.²⁰

Thus, we must conclude that appellants waived their current claims of instructional error at their trial. The question is whether there are exceptional circumstances present here raising a concern that injustice might result if this court does not exercise its discretion to excuse the waiver. Courts have recognized that an intervening change in the law may constitute such an exceptional circumstance, depending on the nature and significance of the change.²¹ This is a pertinent factor, because this court rendered its en banc opinion in Fleming in January 2020, well after it decided McCray I in 2016, and after the proceedings on remand from that case. While appellants could have urged this court to overrule Roy in their direct appeals (just as Mr. Fleming ultimately did), we would not say that appellants should have anticipated the holding of Fleming and done so.²² Nevertheless, we conclude that waiving appellants’ waiver is unwarranted in this case, for three reasons.

First, appellants have not argued that Fleming created an exceptional circumstance excusing their failure to challenge the urban gun battle instruction on causation grounds in their direct appeals. Indeed,...