Vernon Headspeth v. United States , 2014 D.C. App. LEXIS 55 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-CF-1669
VERNON HEADSPETH, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-23586-10)
(Hon. William M. Jackson, Trial Judge)
(Submitted December 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
2
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.
3
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.
4
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
5
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
1
Officer King gave this testimony without defense objection. On cross-
examination, he agreed that appellant “resisted arrest and tried to flee from” him.
2
Defense counsel also noted that Officer King‟s report of the arrest did not
indicate that appellant had attempted to flee. (Officer King had testified that his
practice was to include information about attempted flight in arrest reports only if
the arresting officer had been assaulted or engaged in a lengthy chase in the course
of making the arrest.) Counsel argued that since “it wasn‟t even significant enough
for the officer to put it in his report[,] . . . it doesn‟t really amount to flight.”
6
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
3
The prosecutor told the court that appellant had pled guilty to the
possession charge and that the court had dismissed the contempt case. During
defense counsel‟s cross-examination of Officer King, the court additionally heard
that on occasion the officer “would get on the loudspeaker and tell [appellant] to
move on and get off the block and get out of the area,” because the police “would
get calls for drug complaints and other calls of [appellant] hanging out in front of
buildings and . . . people‟s front yards.” Officer King denied the suggestion of
defense counsel that he “many times . . . would [use the loudspeaker to] harass or
tease [appellant] because he had a stutter[.]”
7
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.
Defense counsel 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 instruction4 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.
4
See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.301
(5th Ed. 2012).
8
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.”
9
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 has cautioned that flight instructions should be used “sparsely.”
Logan v. United States, 489 A.2d 485, 489 (D.C. 1985) (internal quotation marks
omitted). Our admonition reflects the criticism, which courts have long leveled,
5
Appellant also asserts that the prosecutor‟s statements in closing
“exacerbated” the trial court‟s error in giving the instruction.
6
Appellant emphasizes in addition that his conduct occurred fifteen days
after the shooting of Jennings and at a time when he had not been informed that he
was under arrest for that shooting, and that there was no evidence that he otherwise
knew he was a suspect in the shooting. Thus, appellant argues, his conduct was
“too attenuated from the underlying shooting . . . to give rise to any inference of
guilt of the charged offenses.”
10
that “it is a matter of common knowledge that men who are entirely innocent do
sometimes fl[ee] . . . through fear of being apprehended as the guilty parties[.]”
Alberty v. United States, 162 U.S. 499, 511 (1896); see also United States v.
Vereen, 429 F.2d 713, 715 (D.C. Cir. 1970) (“[T]he risk is great that an innocent
man would respond similarly to a guilty one when a brush with the law is
threatened.”). Our caution also reflects a recognition that a trial judge‟s
instructions about permissible inferences may be given great weight by a jury.7
Further, we have recognized that if there is “a reasonable alternative
interpretation” for a defendant‟s conduct that is alleged to support an inference of
consciousness of guilt, “the probative value largely, if not completely, disappears.”
Williams v. United States, 52 A.3d 25, 41 (D.C. 2012). For that reason, “[w]hen a
defendant may have an unrelated strong reason to avoid the police . . . the trial
court must consider that reason” before deciding whether even to admit evidence
of flight “as relevant to consciousness of guilt of the charged crime.” King v.
7
See, e.g., Watkins v. United States, 379 A.2d 703, 705 (D.C. 1977) (“The
influence of the trial judge on the jury is necessarily and properly of great weight
and his lightest word or intimation is received with deference, and may prove
controlling.”) (internal quotation marks omitted); Ronald J. Allen, Structuring Jury
Decisionmaking in Criminal Cases: A Unified Constitutional Approach to
Evidentiary Devices, 94 Harv. L. Rev. 321, 362 (1980) (“Most observers . . .
believe that juries are highly influenced by instructions on inferences.”).
11
United States, 75 A.3d 113, 119 (D.C. 2013). In applying the “overall standard
[of] . . . whether [the] probative value [of the evidence of flight] is „substantially
outweighed‟ by prejudicial impact,” the court must “be confident that the evidence
is actually probative [of] guilt of the charged crime[.]” Id. at 118 n.7; see also
Williamson v. United States, 445 A.2d 975, 981 (D.C. 1982) (explaining that the
trial court is required to “carefully consider the facts in each case and to determine
whether the probative value of such testimony is outweighed by the potential for
prejudicial impact.”).
“[O]ur cases have acknowledged that the existence of alternative
explanations for a defendant‟s flight — other than consciousness of guilt of the
charged crime — will not necessarily preclude the presentation of flight evidence
to a jury[.]” King, 75 A.3d at 119 n.9. But, just as with respect to the decision
whether to admit evidence of flight, the trial court has an “obligation to determine
in the first instance[,]” before giving a flight instruction, whether “the
circumstances reasonably support an inference that [the defendant] fled because of
consciousness of guilt of . . . the charged crime.” King, 75 A.3d at 119 n.9
(brackets omitted). Further, when giving a flight instruction, the trial court “must
fully apprise the jury that flight may be prompted by a variety of motives and thus
of the caution which a jury should use before making the inference of guilt from
12
the fact of flight.” Smith v. United States, 777 A.2d 801, 807-08 (D.C. 2001)
(internal quotation marks omitted).
Where an objection to a jury instruction was preserved at trial, we review the
trial court‟s decision to give the instruction for abuse of discretion. Wheeler v.
United States, 930 A.2d 232, 238 (D.C. 2007). If we conclude that an instruction
was improperly given, we will reverse a conviction unless we are able to say “with
fair assurance . . . that the judgment was not substantially swayed by the error.”
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
III.
The focus of our analysis is on appellant‟s argument that “there was no
reasonable inference that [his] flight [from Officer King] was due to consciousness
of guilt of” any of the charged offenses. However, we begin by addressing briefly
the first of appellant‟s arguments: that his conduct did not amount to “flight.” The
argument is unavailing, because the appropriateness of a consciousness of guilt
instruction does not depend on whether evasive conduct that may evince
consciousness of guilt is more akin to flight than to some other form of resistance
13
to law enforcement. See, e.g., United States v. Myers, 550 F.2d 1036, 1049 (5th
Cir. 1977) (“It is today universally conceded that the fact of an accused‟s flight,
escape from custody, resistance to arrest, concealment, assumption of a false name,
and related conduct, are admissible as evidence of consciousness of guilt, and thus
of guilt itself.”) (internal quotation marks omitted); see also Smith, 777 A.2d at 808
(flight evidence can include evidence of escape or attempted escape from
confinement or custody). In addition, we are satisfied that the evasive actions
described in Officer King‟s testimony — that appellant pulled his arms away from
Officer King, started to run, and rolled out of his jacket when Officer King grabbed
it — constituted sufficient “meaningful evidence” of flight. Logan v. United
States, 489 A.2d at 489. Notably, it was defense counsel — not the prosecutor,
either in opening argument (in which he did not mention the circumstances of
appellant‟s arrest) or direct examination — who, during cross-examination, first
characterized the conduct described by Officer King as appellant‟s having “tried to
flee from” the officer.
In assessing whether the trial court erred in giving the flight instruction, it is
also important to note that Officer King gave his testimony about appellant‟s
attempt to flee without defense objection, and that defense counsel never asked the
court to bar the government from arguing that appellant‟s conduct when Officer
14
King attempted to arrest him amounted to flight and showed consciousness of
guilt. In these circumstances (i.e., the evidence of appellant‟s flight was already
before the jury and the prosecutor had not been precluded from arguing about what
appellant‟s conduct signified), the flight instruction the court gave usefully told
jurors that it was up to them to determine whether appellant had attempted to flee
and to consider whether he may have had reasons to flee that were consistent with
innocence. Consciousness of guilt of the Jennings shooting was hardly the only
inference that could be drawn from appellant‟s conduct at the time Officer King
tried to restrain him; we agree with appellant that his conduct was ambiguous,
especially given that the evidence established that he was a marijuana dealer who
presumably would have had reasons to avoid the police that were unrelated to any
participation in the Jennings shooting. However, “[a] degree of ambiguity for
flight evidence is acceptable[,]” and “the standard [flight] instruction deals with the
uncertainties by warning the jury that flight does „not necessarily reflect‟
consciousness of guilt and „may be motivated by a variety of factors which are
fully consistent with innocence.‟” Comford v. United States, 947 A.2d 1181, 1187
(D.C. 2008). In other words, the standard instruction contains language that, in
many or perhaps most cases, equips jurors to handle ambiguities created by the
evidence and by common experience.8
8
For example, if, as appellant suggests, his effort to avoid restraint by
(continued…)
15
Unfortunately, in this case, what the flight instruction did not do was alert
the jury to the history between appellant and Officer King. To recap, at the time of
appellant‟s arrest in connection with the shooting of Jennings, Officer King had
previously arrested appellant for threatening him (a charge of which appellant was
subsequently acquitted) and for contempt (a charge that was later dismissed), and
may also have been the arresting officer in appellant‟s underlying marijuana
possession case. The court knew this history from the prosecutor‟s proffer on one
of the early days of trial and from a reminder by defense counsel during the
colloquy about whether to give a flight instruction, but the jury knew nothing of it.9
To be sure, defense counsel‟s assertion, about the potential prejudicial effect
the flight instruction would have under the circumstances, was somewhat weak:
counsel stated that the “history” that was not known to the jury was “something
(…continued)
Officer King was no more than an effort to avoid an uncomfortable arm position,
that was a possible motive that was likely within the contemplation of jurors based
on their own experience, and a motive that the standard flight instruction equipped
the jury to consider.
9
The jury, like the court, had learned from Officer King‟s testimony that, in
response to reports about suspected drug activity, King had frequently told
appellant to “move on and get off the block,” but jurors were not informed that
King had actually arrested appellant on more than one occasion.
16
Your Honor can consider” (italics added). Nevertheless, the court had an
obligation to factor that history into a consideration of the potential prejudicial
effect of an instruction that not only would highlight the flight evidence, but also
would give jurors express permission to infer that appellant‟s attempt to avoid
Officer King “tend[ed] to show actual guilt” of the shooting of Jenkins.
We have said that “[a]s long as the circumstances reasonably support an
inference that the accused fled because of consciousness of guilt of the charges . . .
and the probative value of the flight evidence is not substantially outweighed by
the potential prejudicial impact on the jury, such evidence may be admitted, and
the corresponding instruction may be given.” Comford, 947 A.2d at 1187 (quoting
Smith, 777 A.2d at 808) (italics added and original italics omitted). This statement
assumes that the trial court‟s decision about whether to give a flight instruction will
be preceded by the court‟s weighing of the probative value against the potential
prejudicial effect of admitting the flight evidence — something that did not occur
here because the flight evidence came in without objection. We hold that where,
as here, flight evidence was put before the jury without the court having carried out
that balancing test, the court must still, before agreeing to give a flight instruction,
weigh probative value against prejudicial effect. Further, the court must decline to
give the standard flight instruction if (1) particular information known by the court
17
but not the jury suggests another reason (i.e., a reason that is unrelated to the
charged offense(s)) why the defendant would be motivated to flee from law
enforcement (or from a particular law enforcement officer) and (2) there is no
reason to think that the jury would envision that other reason.10
In this case, the court did not weigh the probative value of the flight
evidence against the prejudicial effect of expressly permitting an inference of guilt
from that evidence when the jury had no knowledge of the history between
appellant and Officer King — a history that, it seems reasonable to assume, would
have given appellant a particular aversion to being restrained by Officer King.
Even if the court had performed the requisite balancing, we think it could not
reasonably have concluded that appellant‟s effort to remove himself from Officer
King‟s grasp had such probative value that it outweighed the potential prejudice
that would ensue from giving jurors the court‟s permission to regard the flight
evidence as evidence of consciousness of guilt, even while they were ignorant of
the history that might have explained appellant‟s reaction. In short, we agree with
10
Cf. King, 75 A.3d at 119 & 119 n.9 (holding that the trial court erred in
admitting evidence that, after the charged murder, defendant was not at his
mother‟s home for ten days, because the court failed to consider counsel‟s proffer
that the defendant “was on the run for a juvenile matter” and failed to weigh the
prejudicial impact that would result if the defense put that information before the
jury).
18
appellant that it was error for the court to give the flight instruction in the
circumstances of this case.
IV.
In light of our finding of error, we may uphold appellant‟s convictions only
if we conclude that the error was harmless, i.e., that it is “highly probable that [the]
error did not contribute to the verdict.” Wilson-Bey v. United States, 903 A.2d 818,
844 (D.C. 2006) (en banc). For several reasons, we are unable to reach that
conclusion.
There was no physical evidence linking appellant to the shooting. In
addition, by the prosecutor‟s own acknowledgment, the government‟s theory of
motive was weak: The prosecutor commented that “the jury will have a hard time
believing” that appellant sought to rob, and then shot, his customer Jennings, who
purchased marijuana from him on an almost daily basis. Jennings, the
government‟s primary witness, was hardly the most credible witness, having
acknowledged his involvement in “connect[ing] lower street level people with
higher drug dealers” in the cocaine trade. And even though the jury might have
19
been disposed to believe that Jennings would want to testify truthfully to assist in
prosecuting the individual who had caused his near-fatal injuries, there were, as
appellant argues, “strong reasons to believe” that Jennings was not being entirely
“forthcoming about what had happened on the day of the shooting.”
Further, Owens, the only other claimed eyewitness to the shooting,
acknowledged that he spoke to police only after his arrest on drug possession
charges and that he hoped for leniency in exchange for his testimony. In addition,
Owens claimed to have seen the shooting while he was in the midst of “blowing
heroin,” which he did daily. He had a lengthy criminal record, and although both
he and Jennings identified appellant as the shooter, he gave an account that
differed in significant ways both from Jennings‟s account and from his own prior
statements and grand jury testimony. Owens told the grand jury that he heard
arguing outside the building before hearing gunshots; Jennings‟s account did not
mention any argument with the shooter. Owens told police that the shooting took
place around 6:00 p.m.; it actually took place around 1:00 p.m. At trial, Owens
admitted that some of what he told police he had seen was actually what others had
told him (e.g., details about where Jennings had collapsed). Owens told police that
the appellant was wearing a red or yellow jacket; Jennings testified that the jacket
20
was green and orange. At one point before trial, Owens told a Public Defender
Service investigator that he had not witnessed the shooting at all.
As described above, during his closing argument, the prosecutor repeatedly
emphasized the evidence of appellant‟s flight as evidence from which the jury
should infer his guilt, rhetorically asking the jurors: “Why else would [appellant]
run if he wasn‟t guilty?”; “Why else would he run when Officer King came up to
him, ladies and gentlemen?”; “Why would he run”; and “Why did he run?” We
take this repeated emphasis as an indication of how important the government
thought the flight evidence — and the flight instruction, which the prosecutor
pressed the court to give — were to its case. Cf. Morten v. United States, 856 A.2d
595, 602 (D.C. 2004) (“A prosecutor‟s stress upon the centrality of particular
evidence in closing argument tells a good deal about whether the admission of the
evidence was meant to be, and was, prejudicial.”) (alterations and internal
quotation marks omitted).
In light of the foregoing, we are unable to conclude with fair assurance that
giving the unwarranted flight instruction made no difference in the outcome of the
21
case and thus amounted to harmless error. Accordingly, we agree with appellant
that he is entitled to reversal of his convictions and a new trial.
So ordered.