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Washington v. United States

Court of Appeals of Columbia District

April 7, 2016

WARREN B. WASHINGTON, APPELLANT,
v.
UNITED STATES, APPELLEE

         Argued March 11, 2015.

          Appeal from the Superior Court of the District of Columbia. (CF3-2118-12). (Hon. Stuart G. Nash, Trial Judge).

         Shilpa S. Satoskar, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

         Christopher Howland, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, Elizabeth Trosman, Jodi Steiger Lazarus, and Ann K. H. Simon, Assistant United States Attorneys, were on the brief, for appellee.

         Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and BELSON, Senior Judge. OPINION by Chief Judge WASHINGTON. Concurring opinion by Chief Judge WASHINGTON at page 13. Concurring opinion by Associate Judge FISHER at page 21.

          OPINION

         JUDGMENT

         Washington, Chief Judge :

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the appellant's convictions are affirmed.

         Warren B. Washington (" Appellant" ) challenges his convictions following a jury trial for three counts of assault with a dangerous weapon (" ADW" )[1] and three counts of possession of a firearm during a crime of violence (" PFCV" ).[2] On appeal, appellant argues that the trial court erroneously answered a jury note requesting clarification on the definition of " imitation firearm" with an over-broad definition that permitted the jury to convict appellant of ADW and PFCV even if it believed that the object appellant pointed at the complainants was a cell phone, as opposed to a firearm, replica firearm, or other dangerous weapon. Because the trial court's instruction in response to the jury question was consistent with this court's case law involving the use of imitation firearms, we affirm appellant's convictions.

         I.

         A. The Government's Evidence

         On January 27, 2012, at approximately 8:00 p.m., appellant's former girlfriend, Lashon Jones, asked Harry Williams, a longtime friend of hers with whom she had recently reconnected, to drive her and her daughter to her aunt's home, which was located a block from appellant's home. After Ms. Jones's daughter exited the car, Ms. Jones became fearful that appellant would arrive, as appellant had repeatedly accused Ms. Jones of being in a relationship with Mr. Williams. Thus, Ms. Jones told Mr. Williams that he should leave. Ms. Jones's fear was realized when appellant arrived before Mr. Williams could pull off and demanded that Ms. Jones exit Mr. Williams's vehicle. Ms. Jones refused and appellant again accused her of having a sexual relationship with Mr. Williams, attempted to open the car doors, which were locked, and threatened Mr. Williams, stating that there would be trouble if Mr. Williams did not put Ms. Jones out of his car.

         During the exchange, appellant was " reaching in his pocket" and " moving his hand in his pocket," gestures that Mr. Williams considered being behavior of someone who has a pistol. Mr. Williams told Ms. Jones that it looked like appellant had a gun and Ms. Jones, who was now screaming, responded, " [W]here did he get a gun from? He can't even afford a pair of pants, so where did he get a gun from?" [3] Mr. Williams then exited his vehicle to speak with appellant, but appellant lifted his right arm toward Mr. Williams, displaying what appeared to be the barrel of a gun in his sleeve.[4] Mr. Williams immediately stepped back into his car. Appellant then stepped in front of the car, pointed his extended arm at the windshield, and prevented Mr. Williams from driving off. Appellant then ran the short distance from Mr. Williams's car to the corner, which was more dimly lit, and urged Mr. Williams to drive in that direction, all while continuing to display what appeared to be the barrel of a gun in the sleeve of his extended arm. Ms. Jones shouted that appellant had a gun and Mr. Williams attempted to make a U-turn in the middle of the block to avoid driving to the less-well-lit corner where appellant was standing. Seeing this, appellant ran back to Mr. Williams's car, now fully displaying what Mr. Williams described as a .380 caliber pistol. Once at the car, appellant resumed ordering Ms. Jones out of the vehicle and attempted to open the passenger-side door.

         At this time, Dwayne Frost, Ms. Jones's cousin, who lived at Ms. Jones's aunt's house, tried to intervene. Appellant turned toward Mr. Frost and stated " [Y]ou don't want this issue," while putting his hand back into his pocket and lifting it slightly. Mr. Frost then stepped back, said " Oh, you got a gun," and " I got something for you," and retreated back to his house.[5] Appellant turned toward Ms. Jones and threatened, " B--, somebody's going to die tonight."

         Mr. Williams hesitated to drive away because he was concerned that appellant would shoot him and Ms. Jones through the windshield. Appellant eventually ran to Mr. Williams's car door and with his gun in Mr. Williams's face, grabbed the steering wheel just as Mr. Williams engaged the gears. The car lurched forward and appellant either let go or lost hold of the steering wheel. The vehicle then fishtailed and crashed into a parked SUV. Before Mr. Williams could free himself, appellant reached through the window and punched Mr. Williams in the face.

         Upon hearing the collision, the owner of the SUV came outside and announced that she was calling the police. Neighbors and Mr. Williams also called the police, but appellant fled before they arrived. Moments after police arrived, appellant drove by the scene, and Ms. Jones, Mr. Williams, and Mr. Frost each identified appellant. Two or three days later, Mr. Frost had a friendly conversation with appellant in which Mr. Frost asked appellant if he had a gun on the night of the crash, to which appellant responded that he had been carrying a cell phone, not a gun.

         B. The Jury Instruction

         During discussions regarding the final jury instructions, the government noted that the ADW counts, like the PFCV counts, were charged as having been committed " with a firearm or imitation thereof" and therefore argued that the general ADW jury instruction should include the phrase " firearm or imitation thereof" because of the indicted charges and the fact that no gun was ever recovered. Defense counsel did not object initially, but argued, upon reconsideration, that the phrase " imitation thereof" should be excluded because the ADW statute, unlike the PFCV statute, does not allow a defendant to be convicted based on possession or use of an imitation firearm absent evidence that the object could have been used in a manner likely to cause death or serious bodily injury. Over defense counsel's objection, the trial court instructed the jury for the ADW counts as follows:

The first count with which the defendant is charged is assault with a dangerous weapon against Lashon Jones. The elements of this offense, each of which the Government must prove beyond a reasonable doubt, are, first, that the defendant committed a threatening act that reasonably would create in another person a fear of immediate injury. Second, the defendant acted voluntarily and on purpose, not by mistake or accident. Third, that at the time the defendant had the apparent ability to injure Lashon Jones. And, fourth, that the defendant committed the threatening act with a dangerous weapon; that is, a firearm or imitation thereof. An object is a dangerous weapon if it is designed to be used, actually used, or threatened to be used in a manner likely to produce death or serious bodily injury.[6]

         Two hours into deliberations, the jury sent the following note: " Can an object that is not a gun (or other truly dangerous weapon) -- such as a cell phone -- but is brandished in a manner so as to give the impression that it is a dangerous weapon, count as " an imitation thereof," as set forth in [the ADW counts]?" Defense counsel argued that the answer was simply " no" for the same reasons articulated in her objection to the original instruction. The trial court then proposed repeating the portion of the instruction defining " dangerous weapon" for the jury and then telling the jury that they are welcome to write another note if they have any additional ...


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