Argued March 20, 2013
Appeal from the Superior Court of the District of Columbia (2009-CF3-21904) (Hon. Ronna L. Beck, Trial Judge) (Hon. Anthony C. Epstein, Trial Judge)
Alice Wang, Public Defender Service, with whom James W. Klein, and Monica V. Douglas, Public Defender Service, were on the brief, for appellant.
David B. Goodhand, Assistant United States Attorney, with whom Elizabeth Trosman, Elizabeth H. Danello, and Christopher Kavanaugh, Assistant United States Attorneys, were on the brief for appellee.
Before Washington, Chief Judge, Glickman, Associate Judge, and Pryor, Senior Judge.
Washington, Chief Judge.
On January 27, 2010, a grand jury returned a five-count indictment charging appellant Eric Thomas ("Thomas") of assault with a dangerous weapon ("ADW") of Chauncey Lamar, possession of a firearm during a crime of violence ("PFCV"),  unlawful possession of a firearm by a felon ("FIP"),  carrying a pistol without a license ("CPWL"),  and unlawful possession of ammunition ("UA"). Thomas moved for a bifurcated trial on the FIP count, and his motion was granted on August 23, 2010. On September 23, 2010, a jury acquitted Thomas of ADW and PFCV, but hung on CPWL and UA. The trial court declared a mistrial on those counts and also on the FIP count.
The government sought to retry Thomas on the FIP, CPWL, and UA counts. Thomas moved to dismiss the CPWL and FIP counts on collateral estoppel grounds. The trial court denied the motion and ruled that the government was permitted to introduce evidence of "unambiguously assaultive behavior." The government dismissed the CPWL count and proceeded on the FIP and UA counts. Following Judge Beck's ruling, Judge Epstein ruled that, because raising a gun over one's head was an "unambiguous . . . assaultive act, " while pulling a gun out of one's pocket was not "inherently an assaultive act, " the government could elicit testimony about the events leading up to the encounter, the words exchanged, and Mr. Thomas's act of grabbing the complainant and pulling out a gun, but not his act of raising the gun over his head. The jury convicted Thomas of both counts. Thomas appeals arguing that the jury in the first trial necessarily determined that he did not bring a gun to the altercation with brothers Chauncey and Christopher Lamar; therefore, collateral estoppel barred retrial on the FIP count. Alternatively, Thomas argues that the jury in the first trial at least decided that he did not pull out a gun during his encounter with the Lamar brothers, and therefore, collateral estoppel barred admittance of the evidence of assault in his second trial. We agree with Thomas' alternative argument and accordingly reverse his conviction for FIP.
On October 7, 2009, brothers Christopher and Chauncey Lamar encountered appellant Eric Thomas on their way home after visiting their older brother, Charles. According to the Lamar brothers, Thomas called out, "Chauncey, " and Christopher told Thomas to leave Chauncey alone. Thomas replied, "I don't want to give you [the] same pain I am going to give [Chauncey]." Thomas then grabbed Chauncey with his left arm, and pulled a gun out with his right hand. Chauncey testified that Thomas raised the gun over his head and made a motion indicating he was trying to "pistol whip" him. Christopher testified that Thomas just waved the gun around generally. Christopher then tackled Thomas and all three struggled for control of the gun. During the struggle, Thomas was shot in the hand. The gun was later recovered from the scene.
We review de novo whether collateral estoppel bars relitigation of an issue. United States v. Felder, 548 A.2d 57, 65 (D.C. 1988). Collateral estoppel means that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Joya v. United States, 53 A.3d 309, 315 (D.C. 2012) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). The defendant has the burden of demonstrating that "the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Halicki v. United States, 614 A.2d 499, 502 (D.C. 1992) (quoting Dowling v. United States, 493 U.S. 342, 350 (1990)). To determine whether the issue has previously been determined by a verdict of not guilty, we "examine the record, taking into account the pleadings, evidence, instructions, closing argument and the like [to] conclude whether a „rational jury' could have acquitted based on an issue other than the one the defendant seeks to bar from consideration." Felder, 548 A.2d at 67 (quoting Ashe, 397 U.S. at 444) (internal quotation marks omitted) (noting also that the court should not strain to postulate "hypertechnical and unrealistic grounds on which the . . . [jury could] conceivably have rested" its conclusions). "A review of the evidence presented at trial as well as the positions urged by the United States during trial is necessary to our Ashe v. Swenson analysis." Id. at 58.
In this case, Thomas' theory was that he did not have a gun that day, that he did not assault Chauncey, and that the Lamar brothers fabricated their account of what occurred. The government's theory throughout the trial was that Thomas, armed with a gun, confronted the Lamar brothers and assaulted Chauncey with the gun. The government principally relied on the testimony of the brothers to place the gun in Thomas' hand and to establish the assault. The trial court instructed the jury that for ADW:
[T]he Government must prove beyond a reasonable doubt . . . that, one, the Defendant committed a threatening act that reasonably would create in another person a fear of immediate injury; two, the Defendant acted voluntarily, on purpose and not by mistake or accident; three, at the time the Defendant had the apparent ability to injure the ...