Submitted December 11, 2013
Appeal from the Superior Court of the District of Columbia, (CF3-23586-10), (Hon. William M. Jackson, Trial Judge).
James Klein, Alice Wang, and Joshua Deahl, Public Defender Service, were on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, Justin Dillon, and Kristina L. Ament, Assistant United States Attorneys, were on the brief for appellee.
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
Thompson, Associate Judge.
A jury convicted appellant Vernon Headspeth of aggravated assault while armed, assault with a dangerous weapon, assault with intent to rob while armed,
three counts of possession of a firearm during the commission of a crime of violence, assault with significant bodily injury, carrying a dangerous weapon, possession of an unregistered firearm, and unlawful possession of ammunition. In this appeal, he contends that the trial court erred by giving the jury an instruction that permitted jurors to infer, from the evidence that appellant tried to escape from restraint by the arresting officer, that appellant was conscious of his guilt of the charged offenses. That evidence had been presented without objection, and thus the court had had no occasion to consider, during the presentation of evidence, whether the probative value of the evidence was substantially outweighed by any potential prejudicial impact on the jury. When time came to instruct the jury, the court gave a consciousness-of-guilt (or so-called " flight" ) instruction (1) without the jury having learned, as the court had learned from counsel's proffers, that there was a " history" between appellant and the arresting officer that might have explained appellant's conduct, and (2) without considering whether, in light of the jury's lack of information about that history, the instruction would be unfairly prejudicial. We are persuaded that in these circumstances the court erroneously exercised its discretion in giving the challenged instruction. Because we cannot say with assurance that the error was harmless, we reverse appellant's convictions and remand for a new trial.
The evidence at trial showed that on December 2, 2010, Brandon Jennings was shot near an apartment building at 2643 Birney Place, S.E., in the neighborhood known as Park Chester. Jennings testified at trial that, responding to a telephone call from appellant to " come holler at me," he went to that location to meet appellant, from whom he had regularly purchased marijuana during several months prior to the shooting. After Jennings arrived, appellant produced a gun and instructed Jennings to " give that shit up." Jennings testified that he understood the statement to mean that appellant intended to rob him, and that he therefore ran out of the building, attempting unsuccessfully to knock the gun out of appellant's hands. Jennings heard three gunshots as he ran and was struck by at least one of the bullets. After collapsing on the ground, he was carried by ambulance to a hospital, where he was treated for injuries that included a nearly complete transection of his femoral artery (which caused potentially fatal blood loss), injuries to his bladder, and a two-centimeter tear to his rectum that required him to use a colostomy bag.
When Metropolitan Police Department (" MPD" ) detectives visited Jennings in the hospital on December 8, 2010, and showed him a photo array, he identified appellant as his assailant. Raymont Owens, a heroin addict who frequented the area where the shooting took place, told police that he had witnessed the shooting, and he likewise identified appellant as the shooter. On December 16, 2010, police obtained a warrant for appellant's arrest.
On December 17, 2010, MPD officer Matthew King was on routine patrol and spotted appellant outside a building located at 2641 Birney Place. After verifying that a warrant remained outstanding for appellant's arrest, Officer King called for backup and then approached appellant, who by that point was inside the building, descending a staircase. Officer King instructed appellant to " come over to me" and " place [your] hands on the wall . . . and spread [your] feet," but (so as ...