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Cheeks v. United States

Court of Appeals of Columbia District

September 7, 2017

Darren Cheeks, Appellant,
United States, Appellee.

          Argued April 4, 2017

         Appeal from the Superior Court of the District of Columbia (CF3-1704-15) (Hon. Yvonne Williams, Trial Judge)

          Stefanie Schneider, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for appellant.

          Jennifer B. Loeb, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Alicia Long, and Rizwan Qureshi, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman and Fisher, Associate Judges, and Reid, Senior Judge.


          Glickman, Associate Judge.

         The jury at appellant Darren Cheeks's trial acquitted him of assault with significant bodily injury (ASBI) while armed, but - after having asked the court to clarify the application of its instruction on aiding and abetting liability - found Cheeks guilty of the lesser-included offense of unarmed ASBI. Mr. Cheeks contends on appeal that the trial court erred in submitting the lesser-included offense to the jury and in responding to the jury's request for clarification.

         The court rejects these contentions and affirms appellant's conviction. It does so in two opinions. This one, which all members of the division join, sets forth the facts relevant to both of appellant's claims but addresses and decides only his first contention. We hold that sufficient evidence justified the trial court's decision to instruct the jury on unarmed ASBI as a lesser-included offense.

         The court's decision with respect to appellant's second contention is contained in the accompanying majority opinion of Judge Fisher. That opinion, which Judge Reid joins, holds that the trial court did not abuse its discretion in responding to the jury's clarification request.[1]


         Appellant was indicted with two other men, Roland Plater and William Montague, on one count of aggravated assault while armed (AAWA)[2] and a second count of assault with a dangerous weapon (ADW).[3] Prior to trial, the AAWA count was reduced to ASBI while armed.[4] The charges arose from the stabbing and beating of Michael Harris. Montague was tried separately from his co-defendants and was acquitted. Appellant and Plater were tried together.

         At their trial, Michael Harris testified that the assault began when Plater and Montague found him near Ayers Place in Southeast Washington, D.C., as he was walking home on the evening of January 17, 2015. According to Harris, Plater got out of a truck driven by Montague, accused Harris of stealing his cell phone, and pulled out a knife and stabbed him. Harris took flight.

         Rounding the street corner, Harris ran into appellant and a second man whom Harris did not know. Harris hoped they would assist him, but instead appellant and his companion attacked him themselves, punching him multiple times in the face and head. Plater caught up with them and stabbed Harris from behind. As the three-on-one assault continued, Harris dropped to his knees and fell to the ground. Appellant and the unknown second man then began to kick and stomp him.

         Eventually, the three assailants abandoned the attack and left. As they departed, Harris recalled at trial, appellant told him "that he hoped that I die and that I better not tell nobody." Despite that admonition, Harris called the police, and paramedics transported him to the Washington Hospital Center.[5]

         Dr. Ashley Humphries, after being qualified as an expert in trauma surgery and critical care surgery, testified to her examination and treatment of Harris following his arrival at the hospital. In her opinion as a trauma surgeon, Harris's injuries required immediate medical attention and necessitated his hospitalization. He had sustained four "penetrating" stab wounds that required immediate treatment including stitches, staples, and the administration of antibiotics, fentanyl (an opioid) for pain relief, as well as various tests, including x-rays and ultrasounds of Harris's chest, abdomen, pelvis, and heart, to rule out internal injuries in those areas (which they did). Harris also had multiple other injuries from the beating he received, including abrasions, bruising, and swelling around his left eye, jaw, nose and forehead. Dr. Humphries ordered CAT scans of his brain and face in order to determine whether he had any bleeding into or around the brain or any broken bones. The brain scan found swelling around Harris's forehead but no "intrinsic" brain injury or blood surrounding the brain. The CAT scan of Harris's face found a nasal bone fracture, which Harris attributed to his beating, though his discharge papers referred to it as an "old" fracture.[6] After about four hours at the hospital, Harris was discharged. He was mobile and received no additional medications or medical care.

         Although appellant was not armed during his encounter with Harris, he was prosecuted at trial for armed ASBI on the theory that he aided and abetted Plater's stabbing of Harris. At the close of trial, the court therefore instructed the jury as follows:

Any person who in some way intentionally participates in the commission of a crime can be found guilty either as an aider and abettor or as a principal offender. . . . To find the defendant aided and abetted in committing a crime, you must find the defendant knowingly associated himself with the commission of the crime and that he participated in the crime as something he wished to bring about and that he intended by his actions to make it succeed. . . . With respect to the charge of assault with significant [bodily] injury while armed, regardless of whether the defendant is an aider or abettor or principal offender, the government must prove beyond a reasonable doubt that the defendant personally acted with intent or knowledge.[7] An aider and abettor is legally responsible for the principal's use of a weapon during an offense if the government proves beyond a reasonable doubt that the aider and abettor had actual knowledge that the principal would be armed with or would have readily available a dangerous weapon during the commission of the offense.[8]

         Recognizing that the jury might not find appellant knew Plater was armed during the assault on Harris, the government asked for an instruction allowing the jury to convict appellant of unarmed ASBI as a (second) lesser-included offense.[9]The government argued that the jury could find appellant guilty of the unarmed offense (either as a principal or as an aider and abettor) based on the non-stabbing injuries Harris suffered in the beating. Appellant objected and argued that the non-stabbing injuries were not serious enough by themselves to support a finding of "significant bodily injury." In response, the government cited the fact that Harris's head wounds were serious enough for Dr. Humphries to order CAT scans to determine whether Harris had suffered a concussion or other brain injury. The court, agreeing with the government that the jury could base a finding of significant bodily injury on this evidence, overruled appellant's objection and gave the lesser-included-offense instruction.

         Initially, the court was not asked to give, and did not give, a mens rea instruction specific to aiding and abetting an unarmed ASBI like the mens rea instruction it gave for aiding and abetting the armed offense. During its deliberations, however, the jury (which had been given a written copy of the court's instructions) sent a note requesting the court to "[c]larify instructions on the specifics of the aiding & abetting[, ] specifically for the assault w[ith] significant injury." The court read this note to the parties from the bench. Because the aiding and abetting instruction had stated the government's specific burden to prove the defendant's intent or knowledge only "with respect to" the charge of ASBI while armed, the court surmised that the jury was inquiring whether the instruction on aiding and abetting applied to the other charged offenses. The court therefore proposed simply to tell the jury that the instruction on aiding and abetting it had given "applies to every offense with which the defendants are charged." Appellant asked the court to tell the jury explicitly with respect to the unarmed ASBI charge that "regardless of whether the defendant is [charged as] an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with intent or knowledge." The court refused this request, saying it was "in the instruction already" and did not need to be repeated.

         Although the parties were entitled to see the jury note themselves, [10] they did not ask to do so and the court did not show it to them. Had they looked at the note (which is part of the record before us on appeal), the parties would have discovered that it contained a crossed-out question directly above the one the court read out loud to them. The crossed-out question, of which the court made no mention, read: "Does the aiding & abetting apply to assault w/significant injury? (charge II, on count 1)?" Not having seen or been informed of this question, appellant did not argue its implications at the time.

         On the following day, after having received the court's one-sentence written response that the aiding-and-abetting instruction applied to all the charged offenses, the jury returned its verdict on the charges against appellant. The jury acquitted him of armed ASBI but found him guilty of the unarmed lesser-included offense.[11] The jury was unable to reach a unanimous verdict on the charges against Plater, and a mistrial was declared in his case.


         Appellant's first claim is that the trial court erred in granting the government's request for an instruction on unarmed ASBI as a lesser-included offense of ASBI while armed. The premise of the instruction was that a rational jury might acquit appellant of Harris's stabbing for want of sufficient proof that appellant knew Plater was armed, but still could find appellant guilty of unarmed ASBI based on the other injuries Harris received from the beating in which appellant participated.[12] Appellant challenges that premise. He argues there was insufficient evidence that the beating by itself caused Harris "significant bodily injury" within the meaning of D.C. Code § 22-404 (a)(2).[13] But given this court's precedential construction of the statutory language and our recognition that "[a]ny evidence, however weak, is sufficient to support a lesser-included instruction so long as a jury could rationally convict on the lesser-included offense after crediting the evidence, "[14] we must reject appellant's sufficiency argument.

         The statute defines "significant bodily injury" as "an injury that requires hospitalization or immediate medical attention."[15] Our cases have understood "hospitalization" to "require[] more than being admitted for outpatient care, "[16] and "medical attention" generally to refer to expert medical treatment to prevent "long-term physical damage" or abate "severe" pain rather than to "mere diagnosis" or the alleviation of "lesser, short-term hurts."[17] "In sum, " we concluded in Quintanilla, "our understanding of injuries that 'require[] hospitalization or immediate medical attention'-meaning 'significant bodily injuries'-excludes those which, although seemingly significant enough to invite medical assistance, do not actually 'require' it, meaning the victim would not suffer additional harm by failing to receive professional diagnosis and treatment." [18] But the court in Quintanilla qualified this conclusion in one respect important to the present case. It envisioned that an injury might come within the statutory definition of a "significant bodily injury" if its potential gravity demands medical examination and testing to ascertain or rule out the need for prompt medical treatment; "for example, " apropos of the present case, "a concussion[] where immediate medical 'attention' in the form of monitoring or even testing is required, but where no 'treatment' is ultimately necessary to preserve or improve the victim's health."[19]

         We addressed such an injury in Blair v. United States.[20] The victim in that case was taken to a hospital emergency room after an attack in which her assailant "repeatedly slammed her face into the ground"[21] and she suffered neck and jaw pain, soft tissue swelling and bruising to her face and around her eye, and multiple scratches and abrasions.[22] The emergency room physician ordered CAT scans and an X-Ray of her head and neck to determine whether she had sustained "significant" internal head injury.[23] Fortunately for her, the diagnostic screening apparently ruled that out, and she was discharged from the hospital. There was no evidence she received medical treatment to avert long-term physical injury or other additional harm, or to mitigate severe pain. Nonetheless, this court concluded that "[w]hile not every blow to the head in the course of an assault necessarily constitutes significant bodily injury, . . . where . . . the defendant repeatedly struck the victim's head, requiring testing or monitoring ...

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