February 25, 2010
MARVIN C. LITTLE, APPELLANT,
UNITED STATES, APPELLEE.
On Appeal from the Criminal Division of the Superior Court (F-1292-04) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Argued February 18, 2009
Before REID, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
As a result of his involvement in a violent attempt to rob a purported drug dealer, appellant Marvin Little was convicted by a jury of one count of armed robbery ("AR"), two counts of assault with a dangerous weapon ("ADW"), two counts of aggravated assault while armed ("AAWA"), three counts of possession of a firearm during a crime of violence ("PFCV"), one count of carrying a pistol without a license ("CPWL"), one count of possession of an unregistered firearm ("UF"), and one count of unlawful possession of ammunition ("UA").*fn1 Appellant raises three issues on appeal. First, appellant claims that his CPWL, UF, and UA convictions should be reversed because the relevant statutes violate his Second Amendment rights. Second, appellant asserts that the trial court gave an erroneous aiding and abetting instruction to the jury. Third, appellant contends that the trial court erred in admitting a "certificate of no record" of firearms registration and a "certificate of no record" of a license to carry a pistol because their admission violated his rights under the Sixth Amendment Confrontation Clause. We affirm all of appellant's convictions.
On the evening of February 4, 2004, Michael Richardson, a purported marijuana dealer, received a call at home from his friend, Slavko Totev, who told Mr. Richardson that he would be stopping by for a visit. Shortly after the call, four men, including appellant, entered Mr. Richardson's apartment without invitation. Two of the men pulled out guns, ordered Mr. Richardson to lie on the floor and demanded money. When Mr. Richardson said he did not have any money, the men proceeded to search his apartment. Approximately ten minutes after the four men had arrived, Mr. Totev arrived and one of the four assailants let him into the apartment. When Mr. Totev entered the apartment, he saw several men standing in the middle of the room and Mr. Richardson lying on the floor. He then felt a gun at the back of his head and was ordered to lie on the floor.
Appellant searched Mr. Totev for money while he was lying on the floor, and then tied his hands behind his back. Appellant took Mr. Totev's wallet, cell phone, and car keys, and then covered Mr. Totev's head with blankets and pillows. After a few more minutes of demanding money from Mr. Richardson and searching the apartment, appellant lifted Mr. Totev from the floor and placed a knife to his throat.Appellant told Mr. Richardson that he would cut Mr. Totev's throat unless Mr. Richardson gave him the money. Mr. Richardson did not respond and appellant cut Mr. Totev's throat.*fn2 Appellant let Mr. Totev fall to the floor, and discussed with the other intruders how to proceed. Two of the intruders left while appellant and the other assailant stayed in the apartment. Mr. Richardson then informed the men that there was some money in the corner.
While appellant and the other assailant were searching, Mr. Richardson was able to free his hands. He rushed the men and slammed them into the wall. Mr. Richardson struggled with appellant while the other man ran outside for help. While Mr. Richardson and appellant continued to fight, one of the intruders reappeared and shot Mr. Richardson in the face.*fn3 One of the men hit Mr. Richardson on the head with a gun and then ran out of the apartment, leaving two guns behind. Mr. Richardson picked up the guns and chased after the intruders. He attempted to fire the guns, but they did not discharge. Mr. Richardson then went to the upstairs apartment unit where his landlord lived. The landlord yelled for her sister to call the police. The police arrived soon thereafter.
Mr. Totev testified that he saw appellant hit Mr. Richardson on the head with a gun, but that he did not see appellant with a gun at any other time. After Mr. Richardson chased the men outside, Mr. Totev freed his hands, went outside, and saw Mr. Richardson sitting outside the landlord's apartment holding two guns.
Officer Samuel Gaines arrived to find Mr. Richardson sitting on the steps outside covered in blood. Officer Gaines also saw Mr. Totev, who was covered in blood as well and running up and down the sidewalk in hysterics. [Id. at 52]. Elsewhere in the area, another officer, Kimberly Dickerson, observed two men running and ordered them to stop. The men continued to run and Officer Dickerson issued a lookout for both men. Officers Frank Servis and Norman Ramon heard the broadcast and found appellant hiding in a nearby stairwell.*fn4
Detective Adrian Owens conducted a show-up identification, whereby he brought appellant to the scene where Mr. Totev was being treated in an ambulance.Detective Owens stated that Mr. Totev was unable to identify appellant at that time. However, Mr. Totev later testified that he could not identify appellant at the show-up identification because he was in shock, but he was sure that appellant was the person who cut his throat. Detective Owens also conducted a photo identification procedure with Mr. Richardson. Mr. Richardson picked two photographs from an array of nine, including one of appellant, and stated that the men looked like the intruders. Mr. Richardson further stated that the photo of appellant looked most like the person who had cut Mr. Totev's throat. Both Mr. Richardson and Mr. Totev also made in-court identifications of appellant.
Appellant's version of the story is that he was at Mr. Richardson's house as a guest and that he was also a victim of the incident. Appellant testified that he fled the scene after the attack because he was on parole and did not want to get in trouble. [Id. at 530]. Appellant said that he discarded his sweatshirt, which was found on the ground near where he was apprehended, because his friend "Tommy," who was also at Mr. Richardson's apartment, told him that he had a lot of blood on it.*fn5 Later, appellant conceded that the discarded bloody boots, shirt, and jeans found in Mr. Richardson's apartment were also his. After the police took appellant to the scene for identification and questioned him, they drove him home. Police arrested appellant approximately three weeks later on February 26, 2004.
A. Second Amendment Claims
Appellant argues that his convictions for CPWL, UF, and UA must be reversed in light of the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783, 2822-23 (2008) (holding that the District of Columbia's "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." (emphasis added)). But, appellant did not raise this claim in the trial court, therefore we review only for plain error. See Sims v. United States, 963 A.2d 147, 148 (D.C. 2008) (applying plain error analysis in light of Heller).
Under plain error review, appellant must show that (1) there was an error, (2) the error was plain, and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 733-34 (1993). "[I]n a case such as this -- where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). Even if all three elements are met, we may exercise our discretion to notice the error only if it "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Id. at 467 (internal quotation marks and citations omitted).
Appellant argues that at the time of the offense, the CPWL, UF, and UA statutes functioned as a total ban on handguns because "the District unconstitutionally prohibited all registration and licensing of pistols by ordinary citizens, and thus the only way for an ordinary citizen to possess and carry a pistol was to do so without a license and registration."
We have rejected claims that the CPWL, UF, and UA statutes are facially invalid in light of the Supreme Court's decision in Heller. See Brown v. United States, 979 A.2d 630, 638-39 (D.C. 2009); Howerton v. United States, 964 A.2d 1282,1288 (D.C. 2009); Sims, supra,963 A.2d at 7-8. We have stated that "[n]otably, the Supreme Court in Heller did not declare invalid any of the individual statutes under which appellant . . . was convicted. Moreover, to make a successful facial challenge to the statutes in issue here, appellant must establish that no set of circumstances exists under which [they would be valid]." Howerton, supra, 964 A.2dat 1288 (quoting McPherson v. United States, 692 A.2d 1342, 1344 (D.C. 1997)) (internal quotations omitted). As an example, we pointed to the CPWL statute and noted that while the statute prohibited carrying a pistol without a license, it did not prohibit issuing a license to possess a gun in the home. Id. Therefore, we concluded that the statute was not facially unconstitutional because a set of circumstances exists where the statute could be valid. This same logic also applies to the UF and UA statutes. Id. at 1289 n.12 (stating that "there does not appear to be anything facially improper" about the statute requiring firearms to be registered or the statute prohibiting possession of ammunition without a registration certificate for a firearm of the same caliber).
Even if we were to assume error,*fn6 that error must also be "plain." Sims, supra, 963 A.2d at 150. Appellant does not demonstrate that the constitutional error is "plain" as the CPWL, UF, and UA laws pertain to his conduct. See Heller, supra, 128 S.Ct. 2783.
"In Heller, the issue was the constitutionality of the District of Columbia's ban on 'the possession of usable handguns in the home,'" specifically regarding "the right 'to use arms in defense of hearth and home.'" Howerton, supra, 964 A.2d at 1287 (quoting Heller, supra, 128 S.Ct. at 2821 (emphasis added)). In Sims, where appellant "was found to have carried and possessed a loaded . . . pistol which he discarded while . . . . [outside] the boundary lines (or curtilage) of his home," 963 A.2d at 150, we held with regard to Heller that it was "not 'clear' and 'obvious' from the decision . . . that it dictates an understanding of the Second Amendment which would compel the District to license a resident to carry and possess a handgun outside the confines of his home, however broadly defined." Id. In Howerton, where appellant was in his home at the time he possessed the handgun, we held that his use of the handgun to threaten his girlfriend did not fall within the defense of home allowance of Heller. See 964 A.2d at 1287. The appellant's claim failed because "the jury found . . . that he had used the gun in question to assault [the victim] and no evidence was presented that he possessed the gun for purposes of self-defense." Id.
In this case, Mr. Totev testified that he saw appellant hit Mr. Richardson on the head with a gun. And, Mr. Richardson testified that he was trying to get the gun away from appellant as they struggled. Appellant concedes that he was not in his own home. Thus, appellant was outside of the bounds identified in Heller, i.e., the possession of a firearm in one's private residence for self-defense purposes.
Under these circumstances, and based on our decisions in Howerton and Sims, even if there were error in extending the CPWL, UF, or UA prohibitions to appellant's conduct, he cannot show that such error is "plain." Accordingly, appellant has not satisfied the first and second prong of the plain error analysis. Thus, we conclude appellant's CPWL, UF, and UA convictions must stand.
B. Aiding and Abetting Instruction
Appellant next argues that the trial court's aiding and abetting instruction was erroneous and that it warrants reversal of all of his convictions -- AR, PFCV, CPWL, UF, UA, AAWA, and ADW. The government tried appellant as the principal, but requested that the trial court give an aiding and abetting instruction because there were three other men who participated in the robbery who might be considered principals.*fn7 The trial court gave the then- standard aiding and abetting jury instruction*fn8 which included the language:
[a]n aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequence of the crime in which he intentionally participates. An aider and abettor is legally responsible for the principal's use of a weapon during an offense if the aider and abettor had actual knowledge that some type of weapon would be used or if it was reasonably foreseeable to the aider and abettor that some type of weapon was required to commit the offense.
Appellant did not object to the aiding and abetting instruction. Where there is no objection to a jury instruction, this court reviews for plain error. Kitt v. United States,904 A.2d 348, 355 n.8 (D.C. 2006). This is so even where the defendant is tried before the change in law that gives rise to his appellate claim. Thomas v. United States, 914 A.2d 1, 5-6 (D.C. 2006).
Since the time of appellant's trial, we have rejected the use of the "natural and probable consequence" language in the aiding and abetting instruction for premeditated murder and other so-called "specific intent crimes." Wilson-Bey v. United States,903 A.2d 818, 834, 837 (D.C. 2006); Kitt, supra,904 A.2d at 356 (holding that Wilson-Bey applies to "other aiding and abetting situations in which an accomplice is charged with an offense requiring proof of specific intent"). We have held that the "natural and probable consequence" language in the aiding and abetting instruction is tantamount to a negligence standard. Wilson-Bey, supra, 903 A.2d at 834. Accordingly, we adopted the doctrine that "in order for a person to be held accountable for the specific intent of another under an aiding and abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the charged crime." Id. (internal quotation marks and citation omitted). However, even assuming arguendo that it was erroneous to give the jury instruction in light of Wilson-Bey, appellant cannot establish that any error in the aiding and abetting instruction affected his substantial rights under the third prong of plain error review. To establish that the error affected his substantial rights, appellant "must show a reasonable probability that the aiding and abetting jury instruction had a prejudicial effect on the outcome of his trial." Kidd v. United States, 940 A.2d 118, 127 (D.C. 2007) (citations omitted). After reviewing the record, we conclude that the instruction was harmless because there is overwhelming evidence in the record that appellant acted with the requisite mental state for each charge for which he was convicted -- so much so, that there is no reasonable probability that the erroneous instruction affected the outcome. In evaluating potential prejudice, we must determine whether the erroneous aiding and abetting instruction undermined the mens rea requirement for each of appellant's convictions. See, e.g., Wheeler v. United States, 977 A.2d 973, 987 n.34 (D.C. 2009); Lancaster v. United States, 975 A.2d 168 (D.C. 2009).
In Lancaster, we held that the appellant's substantial rights were not affected with respect to an erroneous aiding and abetting instruction on an armed robbery charge. Id. at 173. We noted that although the appellant had only watched the confrontation, she lured the victim to the apartment where he was robbed, and had let the armed robbers into the apartment. Id. On that evidence, we held that there was no reasonable probability that the erroneous instruction caused her to be convicted without the jury finding that she shared the principals' specific intent to commit armed robbery. Id. at 174. We readily reach the same conclusion here. Here, there is ample evidence to indicate that appellant was an aider and abettor. Appellant entered Mr. Richardson's apartment with his confederates, searched Mr. Totev for money, bound his hands, took Mr. Totev's wallet, cell phone, and car keys, and cut Mr. Totev's throat after Mr. Richardson did not comply with appellant's demands for money. Appellant struggled with Mr. Richardson and then hit him on the head with a gun after another robber had shot him in the face. Thus, with respect to the armed robbery conviction, we are confident that appellant was not prejudiced by the erroneous jury instruction because the record indicates that appellant was an active participant in the robbery -- if not the ring leader -- and therefore had the requisite specific intent to steal.
With respect to PFCV, ADW, AAWA, CPWL, UF, and UA, we must determine whether there is any reasonable probability that a juror who credited the government's evidence could have failed to find that appellant "knowingly and intelligently" participated in the commission of these offenses.*fn9 Mr. Richardson identified appellant as the "initial agitator," meaning "he was the first person in" the apartment. Both victims testified that appellant bound Mr. Totev, obtained a knife from the kitchen, threatened to cut Mr. Totev's throat (and did in fact cut his throat), and stood guard over the victims while the others searched the apartment for money. When Mr. Richardson managed to break free from his bonds, appellant struggled with Mr. Richardson and ordered another one of the robbers to get help. Appellant managed to keep Mr. Richardson at bay long enough to allow the individual to return with a gun and shoot Mr. Richardson. Even more telling, Mr. Totev identified appellant in court as the man who cut his throat, and testified, that appellant had a gun during his struggle with Mr. Richardson, and appellant hit Mr. Richardson on the head with it before fleeing. See Dang v. United States, 741 A.2d 1039, 1043 (D.C. 1999) (holding that a reasonable juror could find appellant had "aided and abetted in his co-defendants' possession of their guns" during an armed robbery where he "entered and exited the apartment with his co-defendants; . . . block[ed] the door, guard[ed] [a victim], and point[ed] a knife at [a victim]"). If credited, this evidence effectively establishes not only that he aided and abetted knowingly and intentionally in the possession of a firearm during a crime of violence (armed robbery), carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition, at a minimum, but that he was actually the principal.
If credited, the evidence also showed that appellant took several deliberate actions to aid his confederates who did possess firearms. Regarding the AAWA conviction, this evidence clearly establishes that while armed with a knife, appellant knowingly and intentionally "engaged in conduct which created a grave risk of serious bodily injury to [complainant] and which manifested an extreme indifference to human life." See note 9, supra. Additionally, concerning his ADW conviction, the evidence shows that while armed with a knife, appellant voluntarily "made an attempt or effort with force or violence to injure another person [or] committed a threatening act that reasonably would create in another person fear of immediate injury." See note 9, supra. On this record, we are satisfied that any reasonable juror who credited the government's evidence would have concluded that appellant acted as a principal or with the same intent as the principal(s). Thus his substantial rights were not affected as a result of the erroneous aiding and abetting jury instruction.*fn10
C. Certificates of No Record
Appellant challenges the admission of the two certificates of no record of firearms registration and one certificate of no record of a license to carry a pistol ("CNRs"), because he contends that their admission undermined his rights conferred by the Confrontation Clause of the Sixth Amendment. Before resting its case, the government entered into evidence three CNRs (two PD-32 certificates showing no record of a firearm registration and one PD-36 certificate of no record to carry a pistol) into evidence after informing the court that it had provided the defense with a copy of each document in discovery. When defense counsel was asked by the court if he had any objections to entering the CNRs into evidence, he stated that he had none. Therefore, we review for plain error. See Thomas, supra, 914 A.2d at 8; Johnson, supra, 520 U.S. at 466-67 (quoting Olano, supra, 507 U.S. at 732). Because appellant cannot establish that any error in admitting the CNRs was "plain," we affirm appellant's convictions for CPWL, UF, and UA.
Appellant contends that his Confrontation Clause rights were violated because he did not have an opportunity to cross-examine the preparer of the CNRs. Relying on Crawford v. Washington, appellant asserts that the government was obligated to produce the preparer as a witness because the CNRs are testimonial in nature. 541 U.S. 36, 37 (2004) (holding that introducing a prior recorded statement taken during a police interrogation without producing the witness who made the statement was a violation of the Confrontation Clause). He argues that the CNRs are testimonial because the purpose of the certificates is to establish the fact that he did not have a license to carry a pistol or registration for a firearm, and the certificates were prepared in anticipation of litigation.*fn11
We recently held that CNRs are testimonial. Tabaka v. United States, 976 A.2d 173, 175 (D.C. 2009) (holding that in light of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), CNRs are "inadmissible over objection without corresponding testimony [from the official] who had performed the search").Accordingly, they are subject to the strictures of the Sixth Amendment. Therefore the admission of the CNRs into evidence constituted error in light of Melendez-Diaz.*fn12 129 S.Ct. at 2542; Tabaka, supra, 976 A.2d at 175-76. With respect to the "plainness" of the error, "[u]sually, the issue is whether the error was plain at the time of trial," Thomas, supra, 914 A.2d at 20 (citations omitted); however, we recognize an exception "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be 'plain' at the time of appellate consideration." Johnson, supra, 520 U.S. at 468. Appellant was convicted in 2005 (post-Crawford, supra, 541 U.S. 36) but at a time when the governing law in this area was no longer settled" (and therefore "an objection would not necessarily have been futile"). Thomas, supra,914 A.2d at 21 n.26 (explaining that the "plain at the time of appellate consideration" exception does not apply). Therefore, for appellant to obtain relief upon plain error review, he must show that any error in the admission of the CNRs was plain at the time of his trial in 2005. That he cannot do.*fn13
For the foregoing reasons, appellant's convictions are affirmed.