WARREN B. WASHINGTON, APPELLANT,
UNITED STATES, APPELLEE
March 11, 2015.
from the Superior Court of the District of Columbia.
(CF3-2118-12). (Hon. Stuart G. Nash, Trial Judge).
S. Satoskar, Public Defender Service, with whom James Klein
and Jaclyn S. Frankfurt, Public Defender Service, were on the
brief, for appellant.
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.
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.
Chief Judge :
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
and ADJUDGED that the appellant's convictions are
B. Washington (" Appellant" ) challenges his
convictions following a jury trial for three counts of
assault with a dangerous weapon (" ADW"
) and three counts of possession of a
firearm during a crime of violence (" PFCV"
). 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.
The Government's Evidence
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.
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?"  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. 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.
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. Appellant turned toward Ms. Jones and
threatened, " B--, somebody's going to die
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.
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.
The Jury Instruction
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.
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