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October 21, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Steffen W. Graae, Trial Judge)

Before Ferren, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Samuel Outlaw was convicted by a jury of second-degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989), possession of a firearm during a crime of violence (PFCV), § 22-3204 (b), and carrying a pistol without a license (CPWOL), § 22-3204 (a). At the same trial, Noah Outlaw, Samuel's older brother, was convicted of being an accessory after the fact (AAF) to second-degree murder while armed, D.C. Code § 22-106, and of CPWOL. The two brothers' prosecutions followed the fatal shooting of Walter Jones on a parking lot basketball court in southeast Washington, D.C. on March 3, 1990. Samuel Outlaw was then sixteen years old, and looked much younger; Noah Outlaw was eighteen.

On appeal, Samuel Outlaw challenges several evidentiary rulings by the trial Judge and claims that he was denied a fair trial as a result of improper prosecutorial argument. We are not persuaded by any of his contentions, and we affirm his convictions without plenary Discussion. *fn1 We also summarily reject Noah Outlaw's claim that the evidence was insufficient to support his CPWOL conviction. *fn2 We reverse Noah Outlaw's AAF conviction upon the ground that the evidence was insufficient to prove that he was an accessory after the fact to murder or to any lesser included offense.



The prosecution presented evidence tending to show that at approximately 11:00 a.m. on the day of the murder, Samuel Outlaw was arguing with Walter Jones over a $20 debt which Samuel claimed that Jones owed him. Jones said he did not have any money. Samuel Outlaw left and went into a nearby apartment building. He soon emerged with a small silver-colored pistol in his hand. Samuel Outlaw complained to Jones that "you ain't going to pay me my fucking money, man," and fired the handgun into Jones' neck. Jones grabbed his throat and began gasping for air. Jones' half-brother, Anthony Ferguson, held Jones and attempted to assist him.

At some point during this tragic encounter, but apparently after Samuel Outlaw fired the shot, Noah Outlaw arrived on the scene. Jones was still alive. Samuel Outlaw handed Noah Outlaw the pistol. Noah Outlaw profanely reprimanded his brother because the latter had not killed Jones. *fn4 He then placed the pistol in his pocket and began to walk towards Jones in a manner that at least two witnesses perceived as threatening. *fn5 Several individuals immediately interceded, and Noah "chilled" and backed off, apparently because police officers were arriving on the scene. Noah Outlaw returned the handgun to Samuel, who left the area. One witness testified that Noah had previously stated that his brother was to "go to aunt somebody's house." Noah Outlaw remained on the scene and watched the police officers as they investigated the shooting. One of the witnesses pointed Noah Outlaw out to the officers, and Noah was arrested.

Noah Outlaw testified that he and his sister's friend, Diane McBride, were visiting a neighbor's apartment when Noah heard a shot. He and Ms. McBride came outside and saw Walter Jones collapse on the basketball court. Noah denied that he took a handgun from his brother, or that he had been in possession of a gun at all on that day. He further denied having seen his brother on the scene, or having approached Walter Jones in a threatening manner or otherwise. Ms. McBride substantially corroborated Noah Outlaw's testimony. *fn6 Obviously, however, the jury did not believe the defense version of events.



At the Conclusion of the prosecution's case, Noah Outlaw's trial attorney moved for a judgment of acquittal with respect to the AAF count upon a single ground, namely, that all of Noah's Outlaw's alleged unlawful conduct occurred while the decedent was still alive, and that Noah therefore could not be an accessory after the fact to murder. No other insufficiency claim has been made on Noah Outlaw's behalf, either in the trial court or in his appellate counsel's brief on appeal. At oral argument, however, members of the court raised, on their own initiative, the question whether the evidence was sufficient to support Noah Outlaw's conviction of AAF to any offense whatever. After argument, the court entered an order inviting the parties to file supplemental memoranda addressing this issue. The prosecution did so; appellate counsel for Noah Outlaw did not. We now conclude that the evidence was insufficient to support a conviction of accessory after the fact to murder or to any lesser included offense. *fn7 We do not reach the principal question briefed by the parties, namely, whether one may be convicted of being an accessory after the fact to murder on the basis of actions taken while the decedent was still alive. *fn8

The District's AAF statute provides in pertinent part as follows:

Whoever shall be convicted of being accessory after the fact to any crime punishable by imprisonment shall be punished by a fine or imprisonment, or both, as the case may be, not more than one-half the maximum fine or imprisonment, or both, to which the principal offender may be subjected.

D.C. Code § 22-106 (1989). *fn9 In the absence of a statutory definition of the elements of the crime, we look to the common law. Clark v. United States, 418 A.2d 1059, 1061 (D.C. 1980); see also Butler v. United States, 481 A.2d 431, 442-43 (D.C. 1984), cert. denied, 470 U.S. 1029, 105 S. Ct. 1398, 84 L. Ed. 2d 786 (1985). We explained in Clark that

under the common law, an accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment. Skelly v. United States, 76 F.2d 483, 487 (10th Cir. 1935) (citing, among others, JONES' BLACKSTONE, Books 3 and 4, at 2204).

418 A.2d at 1061 (internal quotations omitted).

In Howell v. State, 62 Md. App. 278, 489 A.2d 55 (Md. App. 1983), the court defined the elements of accessory after the fact as follows:

(1) A completed felony must have been completed by another prior to the accessoryship;

(2) The accessory must not be a principal in the commission of the felony;

(3) The accessory must have knowledge of the felony; and

(4) The accessory must act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes.

Id. at 58 (citations omitted).

What kind of conduct aids a principal to avoid detection or apprehension? There can, of course, be no exhaustive or all-embracing answer. Observing in 1765 that "any assistance whatever given to a felon to hinder his being apprehended, tried, or suffering punishment" is sufficient, Blackstone provided the following illustrations:

furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, make a man an accessory to the felony.

IV W. BLACKSTONE, (supra) , at 37-38, quoted in Government of Virgin Islands v. Aquino, 378 F.2d 540, 553 n.21 (3d Cir. 1967). More than two centuries later, Blackstone's successor commentators have expanded his enumeration:

Illustrative of the acts which qualify, assuming the presence of the other requirements, are harboring and concealing the felon, aiding the felon in making his escape, concealing, destroying or altering evidence, inducing a witness to absent himself or to remain silent, giving false testimony at an official inquiry into the crime, and giving false information to the police in order to divert suspicion away from the felon.

LEFAVE and SCOTT, (supra) note 9, § 6.9 at 167-68 (citations omitted). The question is whether Noah Outlaw rendered any such assistance to his brother in the present case.

The conduct which, according to the government, constituted accessoryship after the fact on Noah Outlaw's part can be roughly divided into two categories. The first consisted of Noah's alleged acts of intimidation of Walter Jones and perhaps of others; the government apparently contends, although it has not clearly so stated, that these acts were designed to silence potential witnesses, and thus to protect Samuel Outlaw from prosecution and punishment. The second category involved alleged assistance to Samuel Outlaw in making his escape and in disposing of the murder weapon.

In connection with the alleged intimidation, the government cites Noah Outlaw's reprimand of Samuel for not having killed Jones with the first shot, his advance upon Jones with a pistol, and his continued presence on the scene during the police investigation. The reprimand was undoubtedly a morally repugnant act, but it is difficult to connect it directly to the actual or potential silencing of a witness. The advance toward Walter Jones was perceived by some of the persons present as threatening, but it lasted only a few seconds, and Noah never actually did any harm to Jones. Moreover, Noah Outlaw apparently had the weapon in his pocket. *fn10 We do not think that these actions, individually or in combination, could establish beyond a reasonable doubt that Noah became an accessory after the fact (either to the murder or to the assault which preceded it) by silencing or attempting to silence potential witnesses.

The government also claims that Noah Outlaw assisted Samuel Outlaw in making his escape by directing him to go to a specified place of refuge and, moments later, by handing him the murder weapon (which was never recovered by the police). We do not doubt that one may become an accessory after the fact by counseling the principal how to get away. In the present case, however, the oral order issued by Noah Outlaw to his younger brother -- if it was an order *fn11 -- consisted of sending him to the house of their aunt. There is no indication that Samuel Outlaw was unaware of the existence of this potential refuge before Noah Outlaw told him to use it. Noah did not transport his brother to the aunt's home, or conceal him there, or engage in the kind of sheltering of a principal which one would ordinarily associate with accessoryship after the fact. *fn12

It is true that after Noah Outlaw returned the pistol to Samuel Outlaw, the latter left the scene with it. An inference may arguably be drawn that the effect of Noah's having done so, together with his direction to Samuel to go to a specified potential refuge was to help Samuel to get away and to rid himself of the murder weapon. Our focus, however, must be on whether Noah Outlaw intended "to aid or assist the felon to avoid detection or apprehension," Howell, supra, not on the effect of his actions. Noah returned the pistol to the person from whom he had received it. The police having arrived on the scene, passing the murder weapon to his brother can just as plausibly be viewed as an attempt on Noah's part to avoid being apprehended while in possession of incriminating evidence, and thus to save his own skin, rather than Samuel's.

We conclude that the government has failed to establish beyond a reasonable doubt that Noah Outlaw's remark about the aunt's house, and his return of the pistol, constituted accessoryship after the fact, either in isolation or in combination with Noah's allegedly intimidating conduct. Any inference of guilt based on such conduct is, in our view, altogether too speculative. We decline to construe the AAF statute expansively as reaching conduct which falls so far short of the illustrations of accessoryship provided by Blackstone more than two centuries ago and LaFave and Scott in more recent times.

Because the defense never argued -- either in the trial court or in this court -- that the evidence was insufficient to establish Noah Outlaw's guilt of AAF to assault with a dangerous weapon (ADW) -- a lesser included offense of second degree murder while armed *fn13 -- the government contends that we may review only for plain error, i.e., a clear miscarriage of inJustice. Compare United States v. McCray, 140 U.S. App. D.C. 67, 69 n.2, 433 F.2d 1173, 1175 n.2 (1970) (per curiam) with Abdulshakur v. District of Columbia, 589 A.2d 1258, 1264 (D.C. 1991). At trial, the prosecution never requested an instruction on the lesser included offense of accessory after the fact to ADW, *fn14 and there was arguably little, if any, reason for Noah Outlaw's counsel to address the question. Even assuming, without deciding, that the correct standard of review is "plain error," and that Noah Outlaw's conviction may therefore be set aside only if reversal is necessary to avoid a "clear miscarriage of Justice," we conclude that affirmance here, in the absence of sufficient evidence to support a finding of guilt beyond a reasonable doubt, would run afoul of that exacting standard.



For the foregoing reasons, each of Samuel Outlaw's convictions is hereby affirmed. Noah Outlaw's conviction for carrying a pistol without a license is affirmed. Noah Outlaw's conviction of being an accessory after the fact to second-degree murder while armed is reversed, and the case is remanded to the trial court with directions to enter a judgment of acquittal as to that charge.

So ordered.

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