Appeals from the Superior Court of the District of Columbia (FEL7120-03 & FEL7119-03) (Hon. Lynn Leibovitz, Trial Judge)
The opinion of the court was delivered by: Retired, Judge Ruiz.
Before RUIZ, Associate Judge, Retired,*fn1 and PRYOR and FARRELL,*fn2 Senior Judges.
Opinion for the court by Associate Judge, Retired, Judge Ruiz.
Concurring opinion by Senior Judge Farrell at p.44.
Opinion concurring in part and dissenting in part, by Senior Judge Pryor at p.48.
RUIZ, Associate Judge, Retired: Appellants Reginald and Darrell Perry,
who are brothers, appeal their convictions after a joint jury trial.
They were indicted on a number of assault charges: (1) mayhem while
armed (with a shod foot);*fn3 (2) aggravated assault
while armed (shod foot) ("AAWA");*fn4 (3) assault with
a dangerous weapon (shod foot) ("ADW");*fn5 and (4)
(bottle) ADW.*fn6 Reginald was also charged with
possession of a prohibited weapon (bottle) ("PPW").*fn7
In their first trial - which resulted in a mistrial - the
jury acquitted Darrell of the ADW (bottle) charge and hung on the
At the second trial, both Perry brothers were tried for three counts related to an assault with a shod foot (mayhem while armed, AAWA, and ADW), and Reginald was additionally tried for the charges related to the possession and assaultive use of a bottle (ADW and PPW). The jury found appellants guilty of assault*fn8 (as a lesser-included offense to mayhem while armed), AAWA, and ADW, and acquitted Reginald of the bottle-related charges.*fn9
Without objection, the trial court gave an aiding and abetting
instruction that this court subsequently found in Wilson-Bey v. United
States, 903 A.2d 818 (D.C. 2006) (en banc), to be improper for a
charge of aiding and abetting premeditated murder. Appellants argue
that the reasoning of our holding in Wilson-Bey applies with equal
force to their convictions for AAWA and ADW, and that their
convictions for those offenses should be reversed.*fn10
appellants' failure to object to the instruction, however, our review
is limited to plain error. As stated in this opinion and the
concurrences filed by Judge Farrell and Judge Pryor, we decide that
the instructions were not clearly erroneous as to ADW. We affirm
these convictions. Judge Farrell and I come to a different conclusion with
respect to aggravated assault, and conclude that the error was clear
and sufficiently prejudicial to constitute plain error. We, therefore,
reverse appellants' convictions for aggravated assault, and remand for
further proceedings.*fn11 Judge Pryor would affirm
those convictions as well, for the reasons stated in his partially
It was undisputed at trial that Jarrell Rogers was assaulted by a group of several men who kicked him repeatedly, causing grave injuries that required hospitalization. It was also undisputed that appellants Reginald and Darrell Perry were involved in at least part of the fight with Rogers. The primary issue at trial was who had instigated the fight, and whether the Perry brothers had been part of the group that brutally assaulted Rogers.
Rogers testified at trial. He said that on the afternoon of October 10, 2003, he had been walking from a Metro station to his home with his fiancee, DeShanna Gelim, and their two young children. As the family walked on the 3000 Block of Naylor Road, in Southeast Washington, D.C., they passed by a group of men. Rogers recognized two of the men - appellants - as the same individuals with whom he had had a "run-in" a year earlier. Gelim said "hi," and Darrell called out some sort of greeting to Rogers and Gelim. The family continued to walk through the group of men. Reginald, who had been leaning against a car, started to walk quickly towards Rogers and his family, "cussing" under his breath. As Reginald approached, Rogers turned around and told him that he would deal with whatever problem Reginald had after he escorted his family into their house. But rather than stop, Reginald continued to approach and attempted to punch Rogers in the face. Rogers ducked, and the punch never landed. Instead, Rogers struck back, punching Reginald three times in the face.
According to Rogers, Darrell and four or five men came running towards him from about 20-25 feet away. Darrell charged twice towards Rogers, jumping into the air as if he intended a flying kick. Each time Rogers was able to "grab" Darrell and "push him into everybody else." They began to "scuffle," until "someone" hit Rogers on the right side of the head with a bottle, knocking him down. While Rogers was on the ground, he was kicked in the face and along the left side of his body. Rogers could not see who delivered the kicks, but he remembered being kicked by Timberland boots. He recalled that Reginald had been wearing Timberland boots but did not know what footwear Darrell had been wearing. Rogers was able to pull "two or three" of the men off their feet, but could not remember that the Perrys were among them. Eventually, Rogers was able to get up, and continued to fight "three more of them." Even though Rogers did not identify the Perrys as among the men with whom he continued to fight, he said they had been part of the group when he was knocked to the ground and when he got back up. ("Everybody that was around me when I was fighting before I fell was still there.")
Gelim testified that she saw someone knock down Rogers with a bottle of liquor. She saw Reginald strike Rogers in the face with a clear bottle or a piece of a bottle that someone had given him, and then "stomp" on Rogers's body and kick him at least thirty times. She said that Darrell also jumped on Rogers's head, like a "trampoline," ten to fifteen times. After Rogers was able to rise to his feet, the group of men, which according to Rogers and Gelim, included the Perry brothers, ran away down Naylor Road. Police officers arrived on the scene shortly thereafter. Both Rogers and Gelim later identified the Perry brothers to investigators.
Rogers was severely injured during the attack, and his face and shoulder had to be reconstructed. He underwent three surgeries and was hospitalized for weeks. Rogers testified at trial that he suffered from migraines as a result of a plate inserted in his head and had lost mobility in one of his arms.
In their defense, the Perry brothers presented evidence that it had been Rogers who initiated the fight. Reginald testified that he was standing on Naylor Road with his brother and a friend by the name of Oliver Davenport when they saw Rogers and his family pass by. After Reginald exchanged greetings with Gelim, Rogers walked towards him, complaining, "one of you disrespected my fiancee." Reginald responded, and they then had "a conversation that led to an argument which led to a fistfight." Davenport testified that Rogers appeared to be "intoxicated." Blood tests taken at Howard University Hospital on the day of the altercation confirmed the presence of alcohol in Rogers' blood.
According to Reginald, it was the much larger Rogers who initiated the fight,*fn12 hitting him three times in the face. Reginald tried to fight back, but only managed to graze Rogers once on the shoulder. The fight moved to an alleyway, and they threw punches at each other until Darrell came and pulled Reginald out of the fight. Rogers continued swinging and cursing, and Reginald saw Rogers still standing when he, Darrell, and Davenport left the scene. Reginald testified that neither he nor his brother kicked Rogers. He denied hitting Rogers with a glass bottle or seeing anyone else assault Rogers. Reginald's version of events was corroborated by testimony from Davenport, who described the sequence of events in a substantially similar manner. Darrell did not testify or otherwise present any evidence.
Without objection from either the government or defense counsel, the trial court gave the same aiding and abetting instruction that had been given in the first trial. It was the then-standard Criminal Jury Instructions for the District of Columbia (the "Red Book") jury instruction,*fn13 the use of which this court disapproved of in Wilson-Bey, a case decided after appellants' trial. Appellants argue that the rule announced in Wilson-Bey requires that their convictions for ADW and AAWA be overturned.
II.The Holding and Application of Wilson-Bey
In Wilson-Bey, the theory of prosecution was that the defendants - two sisters - were guilty of first-degree premeditated murder while armed: the older sister as a principal, and the younger sister as an aider and abettor.*fn14 903 A.2d at 825. The court instructed the jury, in relevant part, with the applicable instruction from the Red Book that was in use at that time:
It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that she have intended to commit the particular crime by the principal offender. An aider and abett[o]r is legally responsible for the acts of the other persons that are the natural and probable consequences of the crime or criminal venture in which she intentionally participates.
Id. at 826 (quoting Red Book Instruction No. 4.02 (4th ed. 1993)). Both sisters were found guilty.
In the subsequent appeal, we noted that, with two narrowly-circumscribed exceptions,*fn15 a conviction for first-degree murder requires the government to establish that the defendant actually intended to kill the victim, and "it would not be enough . . . that the risk of death was reasonably foreseeable." Id. at 838 (citing Comber v. United States, 584 A.2d 26, 38-39 & n.12 (D.C. 1990)). The trial court's instructions, by indicating that an aider and abettor could be found guilty even if the death of the victim was merely one of "the natural and probable consequences" of her actions, "did not require the prosecution to prove that [the younger sister] acted upon a premeditated design to kill [the victim], that she specifically intended [the victim]'s death, or even that [the younger sister] knew her sister (or anyone else) intended to kill the decedent." Id. at 826. Instead of requiring the government to establish a level of intent that met the high threshold required for premeditated murder, the court allowed the jury to convict the defendant with a mere showing that the murder had been a "natural and probable consequence" of her participation in the confrontation with the victim. This had, in effect, eliminated the intent element from the offense of premeditated murder and allowed the younger sister to be convicted for a murder that, from her perspective, may well not have been premeditated.
Noting that aiders and abettors are subject to the same penalties as principals, see D.C. Code § 22-1805 (2001), we concluded:
[I]t serves neither the ends of justice nor the purposes of the criminal law to permit an accomplice to be convicted under a reasonable foreseeability standard when a principal must be shown to have specifically intended the decedent's death and to have acted with premeditation and deliberation, and when such intent, premeditation, and deliberation are elements of the offense.
Id. at 838. We also described the "natural and probable consequences" language as a "negligence-based approach [that] contravenes basic notions of criminal responsibility." Id. at 837. Because the instructions had permitted the jury to find the younger sister guilty on such a theory, without requiring a determination that she had the requisite mental state for a conviction of first-degree premeditated murder, we reversed her conviction and remanded for further proceedings.
In their briefs, appellants now contend that Wilson-Bey's logic similarly applies to their convictions for AAWA and ADW:
The trial court's instructions . . . allowed the jury to convict [appellants] of AAWA and ADW under an aider and abettor theory so long as it concluded beyond a reasonable doubt that [they] had intended to join in some crime - i.e., an assault on Rogers - and that it was a reasonable foreseeable consequence that serious bodily injury would result. In other words, the court's instructions permitted the jury to convict [appellants] of the serious felony offenses of AAWA and ADW on a finding that [they] merely had the mens rea applicable to the misdemeanor crime of simple assault.
Thus, although appellants do not challenge their convictions for simple assault, they argue that those convictions cannot sustain their culpability as aiders and abettors of ADW and aggravated assault simply because the simple assault consequently escalated into a more serious confrontation.
The government counters that the holding of Wilson-Bey was in the
context of the "specific intent" offense of premeditated first-degree
murder and cannot be applied in these appeals involving the "general
intent" crimes of AAWA and ADW. In support, the government cites our
opinion in Kitt v. United States, 904 A.2d 348 (D.C. 2006), where we
overturned a conviction for first-degree felony murder because the
jury had been given the same jury instruction at issue in Wilson-Bey,
which we said, was erroneous because specific
intent to kill was a required element of the offense.*fn16
Thus, it was error to instruct the jury that the defendant
could be found guilty of felony murder for a death caused during a
carjacking even if he did not have the specific intent to kill the
victim. Id. at 356.
The government, noting that we have described both AAWA and ADW as general intent crimes, see, e.g., Gathy v. United States, 754 A.2d 912, 919 (D.C. 2000) ("Under both statutes [for ADW and AAWA], the government must prove that an assault occurred, i.e., an act by the defendant to injure or threaten another, the apparent present ability to injury, and the general intent to commit the act, and that the assault was committed with a dangerous weapon."), argues that we have not extended Wilson-Bey to general intent crimes and that it was not an error in this case for the court to read the "natural and probable consequences" jury instruction. That argument reads too much into Kitt's reference to specific intent as a limitation to the principle established in Wilson-Bey.
First, although Kitt involved an offense that requires a specific intent, our reasoning referred to mens rea elements generally:
[Wilson-Bey]'s reasoning and holding apply to other aiding and abetting situations in which an accomplice is charged with an offense requiring proof of specific intent. In all such situations, the rule is exactly the same: where a specific mens rea is an element of a criminal offense, a defendant must have had that mens rea himself to be guilty of that offense, whether he is charged as a principal or as an aider and abettor. Thus, to be guilty as an aider and abettor of a felony murder based on an unenumerated felony, a defendant must be shown to have specifically ...