RONNIE L. PAYNE, Appellant,
UNITED STATES, Appellee.
October 16, 2015
from the Superior Court of the District of Columbia
(F-4062-92) (Hon. George W. Mitchell, Trial Judge)
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,
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 judgment of the trial court is
Beckwith, Associate Judge.
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.
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. A recitation of the facts can be found in
Payne v. United States, 697 A.2d 1229, 1230-32 (D.C.
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.
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)). The first prong is dispositive in this
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 ...