Before Terry and Farrell, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
Appeals from the Superior Court of the District of Columbia (Hon. Arthur L. Burnett, Sr., Trial Judge)
(Argued February 1, 2000 Decided April 13, 2000)
Originally charged in a nine-count indictment, *fn1 Roy Thomas was convicted of first degree murder while armed at a second trial. *fn2 In his appeal from that conviction he argues that the trial court committed error in several respects by instructing the jury on conspiracy liability where there was no formal charge of conspiracy.
After Thomas was sentenced at the second trial, he noted a timely appeal to this court and collaterally attacked his conviction in the Superior Court pursuant to D.C. Code § 23-110, alleging ineffective assistance of counsel. The direct appeal was held in abeyance until the Superior Court ruled upon the § 23-110 motion. That motion was denied without a hearing, Thomas noted a timely appeal from the denial, and the two appeals have been consolidated. In his appeal from the denial of his § 23-110 motion he argues that the trial court erred by denying the motion to vacate the judgment without having conducted a hearing. We affirm in each appeal.
Just before midnight on September 21, 1990, four hooded young men, including Thomas, slowly drove past the corner of Eleventh and Lamont Streets, Northwest, where Delanta Toney and Dante Kennedy were conversing next to some telephone booths outside of Arthur's grocery store. A few minutes later, the four men were seen, about a block away, walking in a two by two formation along Eleventh Street from Park Road toward the corner, where Toney and Kennedy were standing. The hooded group passed by Harvey King, who observed that at least one of the men had a pistol. As they approached the corner, the four men, without speaking, lined up diagonally between the grocery store and the telephone booths, and walked as a group toward Toney and Kennedy. When the group neared the two men, Thomas spoke, saying either, "What's up with all you niggers?" or "Why [you] do that bitch shit?" Toney replied, "What you mean? What's up with you, Boo?" After that exchange, each of the four men drew weapons and fired. Toney was shot and injured. Kennedy was shot and killed. After the shootings, the four men ran away in an easterly direction toward Sherman Avenue. Thomas was later identified by witnesses as one of the shooters and the person who spoke to the victim.
At trial, the government proceeded upon a theory of liability based on Pinkerton v. United States, 328 U.S. 640, reh'g denied, 329 U.S. 818 (1946), which permits an instruction on vicarious liability stemming from the existence of a conspiracy. At the government's request, the trial court gave the conspiracy liability instruction, which is set forth, in its entirety, in the appendix, and which closely follows the standard Red Book instruction. *fn3 The trial court also gave the standard Red Book instruction on aiding and abetting. *fn4 As part of the conspiracy instruction, the trial court told the jury:
A conspirator is a person who knowingly and intentionally agrees and combines with one or more persons to accomplish an unlawful purpose. A conspirator is responsible for offenses committed by his fellow conspirators if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of or as a natural consequence of the conspiracy.
Appellant contends (1) "the trial court constructively amended the indictment when it instructed the jury that it could convict the defendant of murder if it found that he was a member of a conspiracy to assault the decedent;" (2) "there was not a sufficient evidentiary predicate for a Pinkerton instruction on vicarious liability for co- conspirator acts;" and (3) "the jury instruction removed the government's burden of proof by requiring appellant's conviction for first degree murder while armed on mere proof of his membership in a conspiracy to commit simple assault." We consider each contention separately.
We first consider the claim that by giving the conspiracy instruction the court constructively amended the indictment. Because this issue was not raised in the trial court, we review for plain error. See, e.g., Woodall v. United States, 684 A.2d 1258, 1262 (D.C. 1996). Conspirators are liable for criminal acts of co-conspirators "in furtherance of the unlawful project." Pinkerton, supra, 328 U.S. at 646. Moreover, in proving the substantive criminal act, "[t]he criminal intent to do the act is established by the formation of the conspiracy." Id. In several instances, this court has previously recognized Pinkerton liability generally, to allow admission of co-conspirator statements. See Akins v. United States, 679 A.2d 1017, 1028 (D.C. 1996); Chavarria v. United States, 505 A.2d 59, 62 (D.C. 1986) (citing United States v. Jackson, 201 U.S. App. D.C. 212, 230, 627 F.2d 1198, 1216 (1980)). In applying the Pinkerton theory of liability in those circumstances, courts in this jurisdiction have repeatedly held that co- conspirators' statements may be admitted even though there is no conspiracy charge in the indictment. See id.
Although we have never decided the specific issue presented here - i.e., whether, when there is no conspiracy charge in the indictment, the Pinkerton instruction may be given to prove a criminal defendant's participation in an underlying criminal offense - every federal court that has decided this question has held that such an instruction is proper. *fn5 Indeed, authority in favor of giving a Pinkerton instruction in these circumstances "is firmly established," United States v. Jackson, supra, 201 U.S. App. D.C. at 230, 627 F.2d at 1216. We have found no federal case law to the contrary and none has been cited to us. Even before Pinkerton was decided by the Supreme Court, at least one federal circuit court had held that "[a]lthough conspiracy be not charged, if it be shown ...