LAMONT L. BUSKEY and KEITH A. SIMMS v. UNITED STATES ( 2016 )

District of Columbia
Court of Appeals
Nos. 14-CF-1148 and 14-CF-1203
NOV 10 2016
LAMONT L. BUSKEY and KEITH A. SIMMS,
Appellants,
v. CF3-22133-13 &
CF3-16677-13
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: GLICKMAN and EASTERLY, Associate Judges; and REID, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby
ORDERED and ADJUDGED that the judgment of the trial court is affirmed.
For the Court:
Dated: November 10, 2016.
Opinion by Senior Judge Inez Smith Reid.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS 11/10/16
Nos. 14-CF-1148 and 14-CF-1203
LAMONT L. BUSKEY AND KEITH A. SIMMS, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF3-22133-13 and CF3-16677-13)
(Hon. John McCabe, Trial Judge)
(Argued March 2, 2016 Decided November 10, 2016)
Deborah A. Persico for appellant Lamont L. Buskey.
Margaret M. Cassidy for appellant Keith A. Simms.
Candice C. Wong, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney, and Elizabeth Trosman and Michelle Parikh,
Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and EASTERLY, Associate Judges, and REID, Senior
Judge.
REID, Senior Judge: These appeals arise from two robberies that took place
in the Northwest quadrant of the District of Columbia in September 2013.
Appellants Lamont L. Buskey and Keith A. Simms were indicted on multiple
2
felony charges relating to the robberies.1 Following a jury trial, they were found
guilty of all charges. On appeal, Mr. Buskey and Mr. Simms contend that the trial
court (1) made several instructional errors relating to the CDW offense, co-
conspirator liability, and aiding and abetting liability for “while armed” offenses;
and (2) erred in responding to jury questions posed during deliberations, and by
sending written responses instead of reconvening the jury and reading the
responses aloud. For the reasons stated below, we affirm the judgments of the trial
court.
FACTUAL SUMMARY
The Government’s Evidence
1
Mr. Buskey and Mr. Simms were charged with conspiracy to commit
burglary, kidnapping, and robbery, in violation of D.C. Code § 22-1805a (2012
Repl.); second-degree burglary of the apartment building of Jennifer and Roxana
Carranza, in violation of D.C. Code § 22-801 (b); kidnapping of Jennifer and
Roxana Carranza, in violation of D.C. § 22-2001; robbery of Jennifer and Roxana
Carranza, in violation of D.C. Code § 22-2801; first-degree burglary while armed
of the home of Pedro Sanchez de Paz, Minor Camo, and Fausto Lopez, in violation
of D.C. Code §§ 22-801 (a), -4502; kidnapping while armed of Pedro Sanchez de
Paz, in violation of D.C. Code §§ 22-2001, -4502; robbery while armed of Pedro
Sanchez de Paz and Minor Camo, in violation of D.C. Code §§ 22-2801, -4502;
and carrying a dangerous weapon (CDW), in violation of D.C. Code § 22-4504 (a).
3
The record reveals that the first robbery took place on September 7, 2013.
Complainants Roxana and Jennifer Carranza testified as follows. Mr. Buskey and
Mr. Simms followed teenage sisters Roxana and Jennifer Carranza into their
apartment building in the 3800 block of 14th Street Northwest. The men entered
the elevator with the sisters, and indicated that they were going to the seventh
floor. When the elevator reached the third floor, where the sisters lived, the men
“block[ed] the door” and trapped them inside the elevator. The sisters tried to get
out of the elevator, but both men “pushed [them] against the wall in the corner of
the elevator.” The sisters began to scream. Mr. Simms, the shorter man, stepped
out of the elevator to ensure that nobody was there and then returned to the interior
of the elevator. The elevator began moving to the seventh floor. Mr. Buskey, the
taller of the two men, pulled out pepper spray, thrust it near Roxana’s face, and
said, “Give me your chains before I stab you.” Jennifer noticed that the taller man
had his hand in his pocket when he said, “Give me your chains or I’ll stab you. I’ll
stab the sh*t out of you.” Mr. Buskey and Mr. Simms snatched the sisters’ gold
necklaces, demanded their rings, and grabbed Roxana’s bracelet. The elevator
moved to the basement floor. A lady was standing in the basement; the shorter
man spoke to her and she directed the men to the exit. Jennifer gave a similar
account of the robbery during her testimony.
4
The government introduced corroborating surveillance video evidence
showing Mr. Buskey and Mr. Simms approaching the building and following the
Carranza sisters inside. The video depicted Mr. Simms stepping off the elevator
on the basement level, Mr. Buskey running down the hallway, and both men
leaving the building. Roxana made an in-court identification of Mr. Buskey.
During re-cross examination, she was presented with a photo array and she
identified one of the defendants as one of the perpetrators.2
The second robbery occurred on September 16, 2013. According to Mr.
Sanchez de Paz, Mr. Buskey and Mr. Simms followed him into his house, located
in the 3600 block of Warder Street Northwest (less than three quarters of a mile
away from the Carranza sisters’ building). When Mr. Sanchez de Paz tried to close
the door, Mr. Buskey, with Mr. Simms’s help, grabbed Mr. Sanchez de Paz’s
hands, forced them behind his back, pushed him into the house, and threw him to
the ground as Mr. Buskey demanded money. Mr. Buskey held a knife to Mr.
Sanchez de Paz’s neck while Mr. Simms went through his pockets and took his
cash, two cellphones, and keys; they kicked him in the back and asked for the
location of his room. Hoping to get help, Mr. Sanchez de Paz directed them to the
2
The record is not clear as to which defendant Roxanna identified.
5
basement room where his friends, Minor Camo and Fausto Lopez, lived. Mr.
Buskey used the keys he had taken and opened the door to the basement unit while
Mr. Simms held a knife to Mr. Sanchez de Paz’s neck and restrained his arms
behind his back.3
Mr. Camo testified that Mr. Buskey entered the room where Mr. Camo and
Mr. Lopez lay sleeping. Mr. Buskey signaled Mr. Camo to come over; Mr. Camo,
assuming Mr. Buskey was a repairman, complied. As Mr. Camo noticed Mr.
Simms on top of Mr. Sanchez de Paz, Mr. Buskey snatched Mr. Camo’s necklace
off his neck with one hand, took out a knife with the other hand, and pointed the
knife at Mr. Camo. Mr. Camo grabbed a bottle from the trash and prepared to
“throw it at [Mr. Buskey].” Mr. Buskey “took off running.” Mr. Lopez testified
that he was awakened by someone trying to force open the door to his room. He
saw a man enter the room with a knife, and noticed that Mr. Camo had grabbed a
bottle. The intruder left the room.4
3
Later, Mr. Sanchez de Paz picked out Mr. Simms’s picture from a photo
array, identifying him as the shorter of the two robbers.
4
The government introduced corroborating video evidence showing Mr.
Buskey and Mr. Simms walking towards the 3600 block of Warder Street at 11:08
a.m., and at 11:17 a.m., running away from the house.
6
Jose Umna, who worked at Famous Pawnbrokers in Silver Spring,
Maryland, a store that pawns and buys used merchandise, identified surveillance
video taken at the store on September 7, 2013, and September 16, 2013, the dates
of the robberies. The videos depicted Mr. Simms and Mr. Buskey. Mr. Umna also
identified a document, routinely kept at the store, that listed all transactions by date
and by name of the customer. The document listed the following items next to Mr.
Simms’s name – “necklace, bracelet, rings.” After watching the surveillance
videos of the store for September 7 and 16, 2013, Paulette Hebron, Mr. Buskey’s
mother, identified him as one of the persons in the videos.
The Jury Instructions
After all of the evidence had been introduced,5 the trial court discussed the
proposed jury instructions with all counsel. On the morning of May 22, 2014, the
trial court made a brief reference to the aiding and abetting liability theory as he
discussed the co-conspirator liability theory. The prosecutor asked that the court
give the instruction on co-conspirator liability, Criminal Jury Instruction No. 7.103
5
There was one witness for the defense. Mr. Buskey presented the
testimony of a police officer who provided the descriptions of the assailants that
Mr. Sanchez de Paz had given to the officer during a police interview. The
officer’s notes showed that Mr. Camo and Mr. Sanchez de Paz stated that they
would be unable to recognize their assailants.
7
(A), explaining in response to a question from the trial judge, that if the jury found
there was a conspiracy it could “find liability under the co-conspirator liability
theory,” but if the jury “fail[ed] to find a conspiracy,” it could “consider the aiding
and abetting theory [of liability].” The judge asked if defense counsel objected to
adding 7.103 (A), and noted that he “assume[d] [he] would just add it at the bottom
of the conspiracy instruction, . . . [o]r at the end of the rest of the instructions[.]”
When counsel for Mr. Simms questioned the need for 7.103 (A), at the judge’s
request, the prosecutor repeated her previously stated rationale for requesting the
co-conspirator liability instruction. The judge asked all counsel to focus on that
issue, and inquired if there was anything defense counsel “needed to change” in the
proposed instructions; the judge gave counsel additional time to respond.
After the lunch break, the trial court revisited the proposed instructions.
Counsel for Mr. Buskey stated that he had “no additions, deletions, or corrections,”
and counsel for Mr. Simms declared that he was “fine” with the proposed
instructions. The prosecutor asked where the judge had placed the co-conspirator
liability instruction, and whether it was “separated from the conspiracy
[instruction].” The judge responded, “It’s at the end of the overt acts.” Neither
defense counsel objected to the location or the substance of the co-conspirator
liability instruction.
8
During its instructions to the jury, the trial court identified the elements of
each of the charged offenses: conspiracy to commit burglary, robbery, and
kidnapping; second degree burglary (September 7th incident – the Carranza
sisters); first degree burglary while armed (September 16th incident – Sanchez de
Paz and Camo); kidnapping (of the Carranza sisters); kidnapping while armed (of
Mr. Sanchez de Paz); armed robbery (of Mr. Sanchez de Paz and Mr. Camo);
robbery (of the Carranza sisters); and CDW (the September 16th incident). The
trial court also instructed the jury on co-conspirator liability, and aiding and
abetting liability.6 The court gave the co-conspirator liability instruction after most
6
In addressing aiding and abetting liability, the judge told the jury, in part:
You may find the Defendant guilty of the crime
charged in the Indictment without finding that he
personally committed each of the acts that make up the
crime or that he was present while the crime was being
committed.
Any person who in some way intentionally
participates in the commission of a crime can be found
guilty either as an aider and abettor or as a principal
offender.
It makes no difference which label you attach. The
person is as guilty of the crime as he would be if he had
personally committed each of the acts that make up a
crime.
To find that a Defendant aided and abetted in
committing a crime, you must find that the Defendant
knowingly associated himself with the commission of the
(continued…)
9
of the substantive conspiracy instruction, including the alleged overt acts.
However, when the trial court finished with the instruction about overt acts, it
turned to the subject of proof regarding a conspiracy, and added a one-sentence
description of a conspiracy before transitioning to the co-conspirator liability
charge. After giving the co-conspirator liability charge, the trial court summarized
the proof necessary to establish the crime of conspiracy. Then the court moved on
to lay out the elements of second degree burglary.
The aiding and abetting liability instruction was not given until after the
court had discussed all of the substantive crimes. The court referenced burglary,
robbery, and kidnapping during its aiding and abetting liability instruction, but it
(…continued)
crime; that he participated in the crime as something he
wished to bring about and that he intended by his actions
to make it succeed.
Some affirmative conduct by the Defendant in
planning or carrying out the crime is necessary. Mere
physical presence by the Defendant at the place and time
the crime is committed is not by itself sufficient to
establish his guilt.
However, mere physical presence is enough if it is
intended to help in the commission of the crime.
The government is not required to prove that
anyone discussed or agreed on a specific time or method
of committing a crime.
10
made no mention of the CDW charge;7 nor did the court mention the “while
armed” element for burglary, robbery, or kidnapping. Counsel for Mr. Buskey and
Mr. Simms did not voice an objection at the end of the trial court’s instructions to
the jury.
The Jury Notes
7
The trial court stated:
I’m now going to instruct you on the concept of
aiding and abetting. . . . I already instructed you on the
elements of [burglary,] robbery and kidnapping.
With respect to the charge of burglary, regardless
of whether a Defendant is an aider and abettor or a
principal offender, the government must prove beyond a
reasonable doubt that that particular Defendant
personally acted with the intent to enter a building or
dwelling with the intent to commit robbery.
With respect to the charge of robbery, regardless
of whether the Defendant is aider and abettor or principal
offender, the Government must prove beyond a
reasonable doubt that the Defendant personally acted
with the intent to take property of another through force
and putting a Complainant in fear or by sudden snatching
with the intent to steal the property.
With respect to the charge of kidnapping,
regardless of whether the Defendant is an aider and
abettor or principal offender, the Government must prove
beyond a reasonable doubt that the Defendant personally
acted with the intent to seize, confine, abduct or carry
away the Complainant for the purpose of robbing him or
her.
11
On the day after receiving the court’s instructions, the jury sent a note to the
judge at 2:16 p.m., inquiring first about the scope of the intended use of an object
as a dangerous weapon – “In regards to the third element of ‘carrying a dangerous
weapon,’ please clarify the scope [of] intended use?” The jury further explained its
inquiry about intended use. In its response to this inquiry, the re-instruction
clarified the distinction between carrying an object “as a tool or for other useful
purposes” and carrying an object with intent to use it “as a dangerous weapon.”
The second part of the first question asked, “Can ‘aiding & abetting’ apply
to the charge ‘carrying a dangerous weapon[?]’” The prosecutor proposed that the
answer to the second part of the first note should be, “Yes,” and asserted that
aiding-and-abetting liability could apply to CDW but only specifically to the
“carrying of the weapon,” not the crime being committed while the principal is
carrying the dangerous weapon.8 Counsel for Mr. Simms objected to any
additional language. The trial court acknowledged the objection of defense
counsel. However, the court stated that “a portion of the appropriate instruction
simply wasn’t given initially.” The court ultimately decided on the following
8
All counsel and the trial court expressed the view that the evidence
showed two knives, but the court pondered the possibility that the jury might have
believed that there was one knife that was shared by Mr. Buskey and Mr. Simms.
12
response: “[Y]es, aiding and abetting can apply to the charge of Carrying a
Dangerous Weapon – the following can be added to the definition of Aiding and
Abetting set forth on page 25 of the Jury Instructions”:
With respect to the charge of carrying a dangerous
weapon, regardless of whether a defendant is an aider
and abettor or a principal offender, the government must
prove beyond a reasonable doubt that the defendant acted
with the intent that the weapon be used unlawfully.
(emphasis added). Neither counsel raised an objection to the re-instruction.
The jury sent a second note at 3:00 p.m., stating and asking:
Armed robbery – aiding & abe[tt]ing (in regards to
element 4) ‘defendant personally acted with the intent to
take property of another through force’
1. Does this include enabling another defendant to do the
taking? Or does defendant himself have to do the taking
(i.e. snatching off necklace)[?]
2. Does instruction on aiding & abe[tt]ing for robbery
also apply to armed robbery?
(emphasis in original). The prosecutor proposed that the court answer the first
question, “Yes.” Mr. Buskey and Mr. Simms proposed that the court simply
“direct [the jury] to re-read the aiding and abetting instruction; the trial court
agreed with appellants. As to the second question, the trial court decided to
13
respond only to the question posed – whether the instruction on aiding and abetting
for robbery also applied to armed robbery. However, the court observed that the
language it proposed was “the specific addition for armed offenses.” The court
inserted the standard language from Criminal Jury Instruction No. 3.200 in its
proposed response to the second question of the second jury note. Counsel for Mr.
Buskey and Mr. Simms answered, “No, Your Honor,” to the court’s question,
“Does anyone have any objection to the language . . . that’s proposed or to be
added?” The trial court’s written response stated:
Question one
To find that a defendant aided and abetted in
committing a crime, you must find that the defendant
knowingly associated himself with the commission of the
crime, that he participated in the crime as something he
wished to bring about, and that he intended by his actions
to make it succeed.
Some affirmative conduct by the defendant in
planning or carrying out the crime is necessary. Mere
physical presence by the defendant at the place and time
the crime is committed is not by itself sufficient to
establish his guilt. However, mere physical presence is
enough if it is intended to help in the commission of the
crime.
Question two
[Y]es with the following elements added to the
elements provided for aiding and abetting robbery[:]
14
An aider and abettor is legally responsible for the
principal’s use of a weapon during an offense if the
government proves beyond a reasonable doubt that the
aider and abettor had actual knowledge that some type of
weapon would be used to commit the offense. You may,
but are not required to, infer that the aider and abettor
knew that some type of weapon would be used to commit
the offense from the surrounding circumstances. You
may consider any statement made, acts done or not done,
the reasonable foreseeability that some weapon would be
required to commit the offense, and any other facts and
circumstances received in evidence that indicate the aider
and abettor’s knowledge or lack of knowledge.
(emphasis added).
Instead of responding to the jury questions in the courtroom, the trial court
“staple[d] the answer to the particular note” and asked the clerk to take the
typewritten responses back to the jury room. No party objected or suggested a
different approach.
THE PARTIES’ ARGUMENTS
Mr. Buskey and Mr. Simms contend that the trial court failed to properly
instruct the jury with respect to the CDW offense, burglary while armed, armed
robbery, and kidnapping while armed. They argue that the trial court erred in
failing to instruct the jury on the required mens rea for aiding and abetting “while
15
armed” offenses and for aiding and abetting CDW. They claim that the trial court
did not accurately respond to the jury’s question, “Can aiding and abetting apply to
the charge ‘carrying a dangerous weapon,’” because the court used the terms “can
apply” and “can be added,” thus leaving it up to the jury to decide whether to
follow the instruction given in response to the jury note. They also argue that the
court erred in failing to separate or differentiate the co-conspirator liability
instructions from the conspiracy instructions. They assert that even when the jury
manifested confusion about aiding and abetting liability with respect to the charged
offenses, the trial court did not tell the jury that a person must have “actual
knowledge” that the principal had a dangerous weapon during the commission of
the charged offenses. Furthermore, Mr. Buskey and Mr. Simms mainly rely on
federal circuit decisions in arguing that the trial court committed a reversible error
by not reading aloud its supplemental instructions in response to the jury’s notes.
The government maintains that Mr. Buskey and Mr. Simms either waived
their instructional error claims or those claims should be reviewed for plain error.
The government argues that (1) both the original instructions to the jury and the
supplemental instructions, in response to jury notes, “fairly and accurately stated
the law,” and that (2) “the use of the word ‘can’ was plainly not intended to convey
that jurors could take or leave the instructions -- merely to convey that the
16
additional guidance was there for any juror that might further inquire into how
aiding-and-abetting liability principles applied to CDW.” Moreover, the
government asserts that “the jury was never told not to apply the aiding-and-
abetting instructions to the armed offenses, and the supplemental instructions made
clear that the aiding-and-abetting instructions applied to the armed, as well as the
unarmed, offenses.” As to the argument that the trial court erred by failing to read
aloud its responses to the jury’s notes, the government distinguishes cases cited by
appellants, points to other federal circuit cases that approve written instructions,
and contends that the failure to read the responses aloud did not constitute “plain
error . . . that seriously prejudiced appellants’ rights or in any way undermined the
fairness, integrity, or public reputation of the jury’s unanimous guilty verdict
against both appellants.”
ANALYSIS
Standard of Review
“When a party fails to raise a timely objection to an instruction, we will
review that claim of error under the plain error standard.” Mobley v. United States,
101 A.3d 406, 422 (D.C. 2014) (internal quotation marks and citation omitted); see
17
also Griffin v. United States, No. 15-CF-263, 2016 D.C. App. LEXIS 296, at *4
(D.C. August 4, 2016). “Under the test for plain error, an appellant must show (1)
error, (2) that is plain, and (3) that affected [his] substantial rights.” Fortune v.
United States, 59 A.3d 949, 954 (D.C. 2013) (internal quotation marks and citation
omitted). “To show that the error affected a substantial right, the appellant . . .
must show a reasonable probability that, but for [the error claimed], the result of
the proceeding would have been different.” Id. (internal quotation marks and
citation omitted); see also Muir v. District of Columbia, 129 A.3d 265, 274-75
(D.C. 2016) (“For a plain error to ‘affect substantial rights,’ it must be of such a
character ‘that viewed in the context of the trial, there is a reasonable probability
that but for the error the factfinder would have had a reasonable doubt respecting
guilt.’”) (citation omitted). “Even if all three of these conditions are met, this court
will not reverse unless (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Fortune, supra, 59 A.3d at 954.
(internal quotation marks and citation omitted). Under prong four of the plain
error standard, this court “determine[s] whether [it] can affirm the conviction
without compromising its goal of delivering justice or diminishing itself in the eyes
of the public.” In re Patrice Taylor, 73 A.3d 85, 103 (D.C. 2013).
Did Appellants Waive Their Challenges to the Jury Instructions?
18
The government contends that appellants waived their instructional error
claims because they “invited the very aiding-and-abetting instructions they now
deem reversible error.” We are not convinced by the government’s waiver
argument. “Generally, the invited error doctrine precludes a party from asserting
as error on appeal a course that he or she has induced the trial court to take.”
Preacher v. United States, 934 A.2d 363, 368 (D.C. 2007). Our review of the
record satisfies us that the invited error doctrine does not apply to this case. We
see no indication in the record that either trial counsel for Mr. Buskey or Mr.
Simms acted in a manner to persuade the trial court not to give the aiding and
abetting instructions with respect to CDW or the “while armed” offenses. There is
no indication in the record that appellants took a specific position in the trial court
on any issue relating to aiding and abetting CDW or the “while armed” offenses,
but have taken a different position on that issue in this court. See Harrison v.
United States, 76 A.3d 826, 840 (D.C. 2013) (citation omitted). Moreover, “[w]e
prefer . . . to resolve the issues raised here on the merits,” rather than not
considering them on the basis of waiver under the invited error doctrine. Dawkins
v. United States, 108 A.3d 1241, 1244 n.11 (D.C. 2015).
Plain Error Review Applies to this Case.
19
Rule 30 of the Super. Ct. Rules of Criminal Procedure, regarding jury
instructions, clearly states that “No party may assign as error any portion of the
charge or omission therefrom unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to which that party
objects and the grounds of the objection.” Super. Ct. Crim. R. 30. Here, the trial
court discussed the proposed jury instructions with the prosecutor and defense
counsel on the morning and afternoon of May 22, 2014. The discussion focused
on the aiding and abetting instruction, and it specifically included whether the co-
conspirator liability instruction should be given. While Mr. Simms’s counsel
initially questioned the need for the instruction, neither he nor counsel for Mr.
Buskey raised any objection after the trial court decided to give the instruction.
The question of where the co-conspirator liability instruction had been placed
within the jury instructions also was specifically raised by the prosecutor during
the court’s discussion with counsel. Neither defense counsel raised any objection
to the placement or location of the instruction.
After the trial court completed its instructions to the jury, counsel for Mr.
Buskey stated, “For the record, Your Honor, I have no objection to the instructions
that were given.” The trial court asked, “Anybody else? Was there anything else
20
you noticed?” Counsel for Mr. Simms raised no objections to the instructions
given. Hence, because no objection to the initial jury instructions was raised
before the jury retired to deliberate, our review of the initial instructions is subject
to the plain error standard.
During its deliberations, the jury sent two notes to the trial judge concerning
aiding and abetting and the CDW charge; and aiding and abetting and the armed
robbery charge. Counsel for Mr. Buskey and Mr. Simms were required to lodge
timely objections to any proposed reinstruction given to the jury. Mobley, supra,
101 A.3d at 422. Both defense counsel initially objected to any additional
language regarding the initial CDW instruction, but neither counsel voiced any
objection to any of the final proposed responses to the two jury notes.
Both Mr. Buskey and Mr. Simms concede that they did not raise objection to
the final versions of the trial court’s initial jury instructions and the responses to
the two jury notes, and that the proper standard of review is plain error. We agree
that plain error applies to this case because Mr. Simms and Mr. Buskey failed to
raise a timely objection to the trial court’s initial failure to instruct the jury
regarding aiding and abetting CDW, and aiding and abetting burglary while armed,
armed robbery while armed and kidnapping while armed, and they did not object
21
to the final version of the trial court’s response to the two jury notes. See Mobley,
supra, 101 A.3d at 422; Griffin, supra, 2016 D.C. App. LEXIS 296, at *4.
Did the Trial Court Commit Instructional Error, and If So, Was It Plain
Error?
Under the first prong of the plain error standard, we consider whether the
trial court committed error in instructing and reinstructing the jury. “Deviation
from a legal rule is ‘error’ unless the rule has been waived.” United States v.
Olano, 507 U.S. 725, 732-33 (1993). “The question whether the challenged
instruction was proper – i.e., what elements the prosecution must prove to show
aiding and abetting . . . – is one of law,” and “our review is de novo.” Wilson-Bey
v. United States, 903 A.2d 818, 827 (D.C. 2006) (citation omitted). Under the
second prong of the plain error standard, we determine whether any error is plain at
the time of appellate review, that is, whether the error is “clear” or “obvious.”
Olano, supra, 507 U.S. at 734 (citation omitted); In re Taylor, supra, 73 A.3d at 99
(citation omitted).
Standard of Review for Jury Instructions
22
“When reviewing a claim of instructional error, this court will examine the
instructions in their entirety”; and “even where a portion of an instruction is
technically incorrect, reversal is not required if the error is cured by a subsequent
charge or by a consideration of the entire charge.” Jackson v. United States, 653
A.2d 843, 847 (D.C. 1995) (internal quotation marks and citation omitted). “The
decision on what further instructions, if any, to give in response to a jury question
lies within the sound discretion of the trial court.” Sanders v. United States, 118
A.3d 782, 783 (D.C. 2015) (internal quotation marks and citation omitted). “We
have emphasized that when a jury sends a note indicating its confusion with the
law governing its deliberations, the trial court must not allow that confusion to
persist; it must respond appropriately.” Jordan v. United States, 18 A.3d 703, 707
(D.C. 2011) (internal quotation marks and citation omitted). “[W]hen the jury has
made known its specific difficulties understanding the law, the trial court should
clear them away with concrete accuracy.” Colbert v. United States, 125 A.3d 326,
334 (D.C. 2015) (internal quotation marks and citation omitted).
CDW
23
We first consider whether the trial court erred with respect to the aiding and
abetting CDW instruction and re-instruction. “CDW . . . is a criminal offense in
and of itself.” Broadie v. United States, 925 A.2d 605, 619 (D.C. 2007). To
convict a person of carrying a dangerous weapon (here a knife), the government
“must prove beyond a reasonable doubt (1) that the defendant carried the knife
either openly or concealed, (2) that the defendant had the general intent to do the
acts constituting the carrying of the knife, and (3) that the purpose of carrying a
knife was its use as a dangerous weapon.” Reed v. United States, 828 A.2d 159,
162 (D.C. 2003) (citing Strong v. United States, 581 A.2d 383, 385-86 (D.C.
1990)). CDW “requires that the government prove that a defendant actually
carried a weapon,” Broadie, supra, 925 A.2d at 619, and to prove aiding and
abetting CDW, the government must establish that the aider and abettor engaged in
some affirmative act to assist the carrying of the dangerous weapon. See McCoy v.
United States, 760 A.2d 164, 186 (D.C. 2000) (“To support a conviction for
carrying a pistol without a license on an aiding and abetting theory of liability,
there must be a showing of some conduct by an alleged accomplice of an
affirmative character in furtherance of the act of carrying the pistols by the . . .
principals.”) (citing Halicki v. United States, 614 A.2d 499, 503 (D.C. 1992))
(internal quotation marks omitted).
24
In its initial instructions the trial court did not give the jury proper legal
principles governing aiding and abetting CDW. That omission was error, and the
error was clear and obvious, as the trial court readily acknowledged in stating that
“a portion of the appropriate instruction simply was not given initially.” However,
the jury recognized that it did not receive instructions about aiding and abetting
CDW, and the jury sent a note of inquiry to the trial court. We must consider
whether the trial court’s responses to the jury’s note cured the initial error relating
to the CDW charge.
Contrary to appellants’ argument, we do not believe that the trial court’s use
of the language, “can apply” and “can be added,” in its reply to the jury’s note left
the jury believing that it had discretion whether to apply the supplemental
instruction in determining the aiding and abetting CDW question. The trial court
obviously used “can” in response to the jury’s use of the word “can” – “Can aiding
and abetting apply” to CDW? The first part of the response to the question was,
yes, aiding and abetting “can apply” to the CDW offense. The court then
proceeded to state applicable legal principles and its substantive response to the
question centered on intent – the defendant acted “with the intent that the weapon
be used unlawfully.” However, the response did not explicitly address the
requirement, set forth in Halicki and McCoy, that the accomplice must aid and abet
25
the principal’s “carrying” of the dangerous weapon, that is, that the aider and
abettor must take some step “to further the carrying” of the knife in this case, or to
do something “in connection with” the knife carried and used by the principal.
McCoy, supra, 760 A.2d at 186. Acting with the intent that a knife be used
unlawfully does not in and of itself automatically satisfy the requirement that the
accomplice himself do something to further the carrying of the knife by the
principal. The accomplice may mentally intend for the knife to be used but may
not do anything to assist the principal with the carrying and use of the knife.
In sum, we cannot say that the supplemental instruction cleared up, “with
concrete accuracy,” the jury’s difficulties with the initial instruction. Colbert,
supra, 125 A.3d at 334 (citation omitted). The trial court’s response to the jury’s
aiding and abetting CDW note told the jury that “whether the defendant is an aider
or abettor or a principal offender, the government must prove beyond a reasonable
doubt that the defendant acted with the intent that the weapon be used unlawfully.”
This instruction was to be added to the general aiding and abetting instruction
given with the initial jury instructions, but that general definition did not speak
explicitly to the accomplice’s aiding and abetting the carrying of a dangerous
weapon. Therefore, looking at the entirety of the aiding and abetting CDW charge,
26
we are constrained to conclude that the trial court’s charge constituted error that
was plain.
Aiding and Abetting While Armed Offenses
The trial court’s initial instruction also constituted error with respect to the
aiding and abetting burglary while armed, armed robbery, and kidnapping while
armed charges. Like the CDW offense, the initial instruction omitted any mention
of aiding and abetting these “while armed” offenses.
To determine whether the trial court properly instructed the jury on aiding
and abetting liability for the “while armed” offenses in light of its response to the
jury’s second note, we are guided by the following key legal principles. “[A]n
aiding and abetting conviction requires not just an act facilitating one or another
element, but also a state of mind extending to the entire crime.” Rosemond v.
United States, 134 S. Ct. 1240, 1248 (2014). “Any instruction on aiding and
abetting must make clear that a defendant needs to have the mens rea required of
27
the underlying crime in order to be convicted of the crime as an aider and abettor.”
Appleton v. United States, 983 A.2d 970, 977 (D.C. 2009) (citation omitted); see
also Wheeler v. United States, 977 A.2d 973 (D.C. 2009), reh’g granted, opinion
modified, 987 A.2d 431, 431 (D.C. 2010) (per curiam) (The “charged aider and
abettor will have to know and intend the steps taken, amounting to the same mental
state required of the principal.”); Lancaster v. United States, 975 A.2d 168, 173
(D.C. 2009) (jury instruction “improperly authorized the jury to find [appellant]
guilty of aiding and abetting armed robbery without proof that [appellant] [himself]
had the essential mens rea to commit the crime”) (citing Wilson-Bey, supra, 903
A.2d at 838.).
To be guilty of a crime committed “while armed” as an aider and abettor, “a
person must, inter alia, intend to facilitate the entire offense, not some lesser
offense.” Robinson v. United States, 100 A.3d 95, 105 (D.C. 2014) (citation
omitted). Thus, “the enhanced penalty provisions of D.C. Code § 22-4502 [the
“while armed” statute]9 may not be applied to an aider and abettor who only had
9
“D.C. Code § 22-4502 (a) permits the imposition of enhanced punishment
on defendants convicted of having committed a crime of violence or a dangerous
crime ‘when armed with or having readily available’ a firearm or other dangerous
or deadly weapon.” Robinson, supra, 100 A.3d at 105 (citation omitted). “The
term ‘armed with’ means having ‘actual physical possession’ of the weapon in
(continued…)
28
‘reason to know’ the principal offender was ‘armed with’ a dangerous weapon
during the commission of a violent or dangerous crime.” Id. at 106. “Actual
knowledge of the weapon is required for either the principal offender . . . or the
aider and abettor to be subject to § 22-4502.” Id.
Given our decision in Robinson, the trial court’s initial aiding and abetting
instruction did not make clear that for a defendant to be found guilty of the “while
armed” offenses, as an accomplice, he had to know that the principal was armed
during the commission of the robbery, burglary and kidnapping offenses.
Robinson, 100 A.3d at 105-106. However, the trial court’s supplemental
instruction in this case cured the initial error by providing a correct statement of
the law – informing the jury that to convict a defendant of armed robbery as an
aider and abettor, it would have to find not only that the defendant intended to
facilitate the robbery, but also that he did so with actual knowledge that the
principal was carrying a knife during the commission of the robbery.
(…continued)
question, while ‘having readily available’ means, ‘at a minimum,’ having
constructive possession of the weapon.” Id. (citation omitted).
 29
The trial court’s supplemental instruction was limited to the question posed
about armed robbery.10 But the supplemental instruction on aiding and abetting
armed robbery implicitly informed the jury that the same legal principle applicable
to robbery while armed also applied to burglary while armed and kidnapping while
armed.
The Co-Conspirator Liability Instruction
Mr. Buskey and Mr. Simms assign as error the trial court’s failure to
separate the co-conspirator liability instruction from its conspiracy instruction.
Since neither defense counsel objected to the placement or location of the co-
conspirator liability charge, our review is for plain error. At the outset we discern
no error in the substance of the trial court’s co-conspirator liability charge, and
neither Mr. Buskey nor Mr. Simms alleges such an error. The central question is
whether the trial court committed error when it placed that charge so close to the
conspiracy charge and the overt acts alleged in furtherance of the conspiracy, and
10
The trial court decided to limit itself to the precise question posed by the
jury and therefore did not mention the requirements for aiding and abetting armed
burglary and armed kidnapping. Rather, the court assumed that the jury would
apply the principles given for aiding and abetting armed robbery to aiding and
abetting armed burglary and armed kidnapping.
30
further sandwiched the instruction between a summary of proof necessary to
establish a conspiracy and a one-sentence description of a conspiracy.
Clearly, the structure of the trial court’s entire initial instruction made it
difficult to ascertain the substantive law for each charged crime, and the law
pertaining to two possible theories of accomplice liability – co-conspirator liability
and aiding and abetting liability, as well as the distinction between the two
theories. The jury instruction as a whole should provide the jury with a clear path
to understanding the substantive law, the theories of defendant liability, and the
general but fundamental principles governing a defendant’s guilt. We do not
believe that the structure of the jury instructions in this case achieved those goals.
The failure to structure the instructions so that they clearly manifest the
distinction between conspiracy and co-conspirator liability, and the distinction
between co-conspirator liability and aiding and abetting liability constituted error
that is plain.11 See Collins v. United States, 73 A.3d 974, 981 (D.C. 2013) (citing
11
Cousart v. United States, No. 15-CF-151, 2016 D.C. App. LEXIS 299
(D.C. August 4, 2016), concerning error that is plain and the giving of a model
instruction, does not dictate a different conclusion simply because the trial court
here gave a co-conspirator liability instruction that was accurate and that mirrored
the model instruction contained in the Criminal Jury Instructions for the District of
Columbia, the Red Book. We said in Cousart, “[a]n instruction that follows
(continued…)
31
Wilson-Bey, supra, 903 A.2d at 839 for the proposition that, “Pinkerton [co-
conspirator] liability and aiding and abetting liability are distinct legal theories and
require proof of different elements.”); see also Erskines v. United States, 696 A.2d
1077, 1080 (D.C. 1997) (“Aiding and abetting [liability] . . . resembles Pinkerton
liability but nonetheless differs from it significantly”; “[u]nlike the latter, aiding
and abetting does not make ‘the personal involvement of the defendant in the
[substantive] crime’ irrelevant.”).
Failure to Read the Supplemental Instructions in Open Court
Mr. Buskey and Mr. Simms argue that the trial court committed error by
sending written responses to the jury notes instead of reading the responses in open
court. This jurisdiction has limited case law on the issue of whether the trial
judges are required to read their initial instructions and their responses to jury notes
(…continued)
without objection the model criminal instruction would constitute an error that is
‘plain’ only in an unusual case.” Id. at *7. There, the question that prompted this
statement in our opinion was much less complex – whether the object used during
a crime was a dangerous weapon for two offenses (assault with a dangerous
weapon and CDW) but not for another offense (aggravated assault while armed).
Here, the question confronting us is much more complex – whether any
accomplice was guilty of the charged crimes on a theory of co-conspirator liability
or a theory of aiding and abetting liability. The structure and location of the jury
instructions on co-conspirator and aiding and abetting liability, as described above,
makes this the “unusual case” mentioned in Cousart.
32
in open court. The circumstances of these limited cases vary and do not squarely
mirror those in this case. In In re Pearson, 262 A.2d 337 (D.C. 1970), this court
was critical of a trial judge who gave a supplemental instruction only to the jury
foreperson. We said, “It is . . . essential that all instructions to the jury be given by
the trial judge orally in the presence of counsel and the defendant.” Id. at 340
(quoting United States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946)). In re Pearson
involved a situation in which the polling of the jury, following the announcement
of the jury’s verdict, revealed one dissenting juror. The trial court sent the jury
back to the deliberating room, but then called only the jury foreperson back to the
courtroom. The court told the foreperson, in part, that “there should be no
overbearing of any individual juror by any other member of the Jury.” Id. at 338.
The court could not be sure that the foreperson conveyed these instructions to the
rest of the jury.
In Hallmon v. United States, 722 A.2d 26 (D.C. 1998), the jury sent out a
note asking if it could get a copy of the jury instructions. The courtroom clerk
responded, “No,” but indicated that the instruction could be read to the jury in open
court. The question presented was whether “the trial court committed reversible
error by allowing the courtroom clerk to communicate directly with the jury during
its deliberations.” Id. at 27. We said, in passing, “In this case as in any case, the
33
jury’s message should have been answered in open court, and [defense] counsel
should have been given an opportunity to be heard before the trial judge
responded.” Id. at 27-28 (internal quotation marks and citation omitted). Cox v.
United States, 999 A.2d 63 (D.C. 2010), presented a situation where the jury posed
a question about the meaning of “readily available,” and the trial court responded
in writing, without discussing the jury’s note or the response with the parties’
respective counsel. Id. at 70. We concluded that the trial court erred procedurally
and substantively. We declared that procedurally, “the jury’s message should have
been answered in open court, and defense counsel should have been given an
opportunity to be heard before the trial judge responded.” Id. at 70 (quoting
Hallmon, supra, 722 A.2d at 27-28).
Mr. Buskey and Mr. Simms, and the government, cite cases from federal
circuits favoring their perspective that either the trial court must read aloud a
response to jury notes, or is not required to read aloud the responses.12 However,
12
Appellants cite United States v. Perry, 479 F.3d 885, 892 (D.C. Cir.
2007), Guam v. Marquez, 963 F.2d 1311, 1314-15 (9th Cir. 1992); and United
States v. Noble, 155 F.2d 315 (3d Cir. 1946). The government cites Beardslee v.
Woodford, 358 F.3d 560, 590 (9th Cir.), supplemented sub nom. Beardslee v.
Brown, 393 F.3d 1032 (9th Cir. 2004); United States v. Dellinger, 472 F.2d 340,
379 (7th Cir. 1972). In the District of Columbia Circuit case, the district judge told
the jury that he would read aloud the elements of the charged offense, but would
not read the statute defining the offense, nor would he read the definition of key
(continued…)
34
in light of this court’s precedents, discussed above, we hold that it was error for the
trial court to send written supplemental instructions to the jury, rather than reading
them aloud in open court.
Did the Error or Errors That Were Plain Affect Appellants’ Substantial
Rights?
Because we conclude that each of the assigned errors constituted either error
or errors that were plain, we now examine whether these errors affected Mr.
Buskey’s and Mr. Simms’s substantial rights, that is, whether there is a reasonable
probability that but for the claimed errors, the outcome of their trial would have
been different, or the jury would have had a reasonable doubt about their guilt.
(…continued)
terms, but he indicated that all of the written instructions would be sent back as the
jury retired to deliberate. Perry, supra, 479 F.3d at 888. Neither counsel for the
defense nor the government objected. After reviewing decisions from the third and
ninth circuits, the court declared, “We agree with our sister circuits that a trial
judge must read aloud jury instructions in their entirety,” and that “the district
court erred in failing to read to the jury the definitions of ‘computer,’ ‘loss’ and
individual.” Id. at 892-93.
 35
With respect to the CDW error, testimony by Mr. Sanchez de Paz and Mr.
Camo established that two knives were carried during the September 16th crimes.
Mr. Sanchez de Paz stated that Mr. Buskey held a knife to his neck when
appellants followed him into his residence and forced him to the ground. Then,
while Mr. Buskey proceeded to the unit that Mr. Sanchez de Paz identified as his
own (but in which Mr. Camo and Mr. Lopez resided), Mr. Simms held a knife to
Mr. Sanchez de Paz’s neck. Mr. Camo testified that as he noticed Mr. Simms on
top of Mr. Sanchez de Paz, Mr. Buskey took out a knife and pointed it at Mr.
Camo. In light of this testimony from Mr. Sanchez de Paz and Mr. Camo, the
government clearly presented compelling evidence that there were in fact two
knives in use at the same time at the scene of the second robbery, one held to the
neck of Mr. Sanchez de Paz by Mr. Simms while Mr. Buskey used the other to
threaten Mr. Camo. Consequently, Mr. Simms was guilty of CDW as a principal.
Therefore, despite the errors in the trial court’s instructions, as a whole, we hold
that no “reasonable probability exists that the outcome of the case would have
differed” if the trial court had properly instructed the jury. Cousart, supra, 2016
D.C. App. LEXIS 299, at *15.
As for aiding and abetting the “while armed” offenses, (1) since the
supplemental instruction explicitly (with respect to armed robbery) and implicitly
36
(with regard to armed burglary and armed kidnapping) cured the error in the trial
court’s initial instructions, and (2) given the overall strength of the government’s
evidence, including Mr. Simms’s knowledge that Mr. Buskey was armed with a
knife, we conclude that Mr. Buskey and Mr. Simms failed to satisfy the third prong
of the plain error standard. In sum, they failed to show that “there is a reasonable
probability that but for the error the [jury] would have had reasonable doubt
respecting guilt” as to the armed robbery, armed burglary, and armed kidnapping
charges.
The jury raised no question about the co-conspirator liability charge.
Moreover, we see nothing in the record that even remotely suggests that the jury
understood that the co-conspirator liability theory was available to them in
determining whether appellants were guilty of armed robbery, armed burglary and
armed kidnapping. The location of this instruction within the relatively long
conspiracy charge may have precluded the jury’s appreciation of co-conspirator
liability as an option in this case. In that sense, appellants may have benefitted
from the trial court’s error. In short, as to the co-conspirator liability charge, Mr.
Buskey and Mr. Simms cannot satisfy the third prong of the test for plain error.
37
Finally, the trial court’s sending of written instructions to the jury in
response to jury notes does not appear to have affected Mr. Buskey’s and Mr.
Simms’s substantial rights. Since the jury had not been instructed initially on
aiding and abetting CDW, and aiding and abetting the “while armed” crimes, the
jury undoubtedly read the trial court’s written responses to its two notes.
Furthermore, given the testimony mentioned above regarding CDW and the “while
armed” offenses, and given the fact that Mr. Buskey and Mr. Simms do not
challenge the substance of the co-conspirator liability charge, we see no reasonable
probability on this record that the outcome of Mr. Buskey’s and Mr. Simms’s trial
would have differed if the court had read aloud the responses to the jury’s two
notes. In short, the delivery of written responses to the jury’s notes does not satisfy
the third prong of the test for plain error.
Accordingly, for the foregoing reasons, we affirm the judgment of the trial
court.
So ordered.
38