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Payne v. United States

Court of Appeals of Columbia District

February 23, 2017

RONNIE L. PAYNE, Appellant,
v.
UNITED STATES, Appellee.

          Argued October 16, 2015

         Appeal from the Superior Court of the District of Columbia (F-4062-92) (Hon. George W. Mitchell, Trial Judge)

          Jason M. Wilcox for appellant.

          Nicholas Coleman, Assistant United States Attorney, with whom Vincent C. Cohen, Acting United States Attorney at the time the briefs were filed, and Elizabeth Trosman, Elizabeth H. Danello, and Uma M. Amuluru, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Beckwith and Easterly, Associate Judges; and Nebeker, Senior Judge.

         JUDGMENT

         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 judgment of the trial court is affirmed.

          OPINION

          Beckwith, Associate Judge.

         On October 23, 2014, the United States District Court for the District of Columbia-on the directive of the United States Court of Appeals for the District of Columbia Circuit-issued an order granting appellant Ronnie Payne's petition for a writ of habeas corpus but staying its execution to permit this court an opportunity to allow Mr. Payne to raise an instructional error issue that had gone unchallenged on direct appeal. See Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014). This court subsequently directed Mr. Payne to file a motion to recall the mandate and then granted that motion and agreed to review his claim. Concluding that the instructional mistake does not amount to constitutional error, we affirm the convictions.

         I.

         On February 23, 1993, a jury found Mr. Payne and a codefendant guilty of two counts of first-degree murder, two counts of assault with intent to kill while armed, one count of carrying a pistol without a license, and one count of possession of a firearm during a crime of violence.[1] A recitation of the facts can be found in Payne v. United States, 697 A.2d 1229, 1230-32 (D.C. 1997).

         The matter before this court concerns a mistaken instruction given to the jury just prior to deliberation. Although the Superior Court properly informed the jury on several occasions about the government's burden of proof, on one occasion the judge instructed the jury:

If you find that the Government has proved, beyond a reasonable doubt, every element of the offense with which these defendants, or this defendant is charged, it's your duty to find that defendant guilty.
On the other hand, if you find that the Government has failed to prove any element of the offense, beyond a reasonable doubt, you must find that defendant guilty.

(emphasis added). By omitting the word "not" from the final sentence, the instruction, taken in isolation, had the effect of directing a verdict of guilty, since it would have a jury convict whether or not the government met its burden to prove every element of the offenses charged beyond a reasonable doubt.

         II.

         On appeal, Mr. Payne argues that the court's mistaken instruction amounts to structural error because it directed a verdict for the government. He contends that the error was not corrected by the court's other instructions, leaving the jurors with the impression that they must convict regardless of the defendant's guilt or innocence. "On a plain error review, an appellant must show that the objectionable action was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (quoting Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006)).[2] The first prong is dispositive in this case.

         In deciding whether an instructional mistake amounts to constitutional error, we determine whether there is a "reasonable likelihood that the jurors who determined . . . guilt applied the instructions in a way that violated the Constitution." Victor v. Nebraska, 511 U.S. 1, 22-23 (1994); see also Minor v. United States, 647 A.2d 770, 773 (D.C. 1994). Because "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged, " In re Winship, 397 U.S. 358, 364 (1970), a defendant would be deprived of this due process ...


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