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Malloy v. United States

Court of Appeals of The District of Columbia

June 21, 2018

Darryl Malloy, Appellant,
United States, Appellee.

          Argued November 16, 2017

          Appeal from the Superior Court of the District of Columbia (CF3-10085-15) Hon. Anita M. Josey-Herring, Trial Judge

          Matthew B. Kaplan for appellant.

          Sumit Mallick, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Lindsey Merikas, Assistant United States Attorneys, were on the brief, for appellee.

          Before Easterly and McLeese, Associate Judges, and Ferren, Senior Judge.


         After a jury trial, appellant Darryl Malloy was acquitted of several gun charges but convicted of a felony threat.[1] On appeal, he argues for reversal on three grounds:

1. The trial court abused its discretion by admitting in evidence testimony about an uncharged prior threat by Malloy against complainant Anthony Johnson.
2. The trial court also abused its discretion in (a) precluding admission of certain out-of-court statements made by Malloy and Johnson during the charged incident, and (b) limiting the jury's consideration of other such statements that were admitted in evidence.
3. The trial court plainly erred in omitting the mens rea element of the felony threats offense when instructing the jury.

         We affirm as to the first two grounds but reverse Malloy's conviction for instructional error and remand the case for further proceedings.

         I. Facts and Proceedings

         According to the government's evidence, during the evening on July 22, 2015, Johnson was visiting his son, Anthony Tate, and his son's mother, Shaunette Tate, in the 2700 block of Bruce Place Southeast, also known as Woodland Terrace. At around 7:50 p.m., after sitting for awhile on the patio outside the Tate home, Johnson walked across the patio to his car close by in a parking lot, in order to make a call from his phone that was charging there. While Johnson was sitting in his car, Malloy approached him, calling him "hot" (meaning a snitch), accusing him of always calling the police, and asking whether Johnson was then on the phone with the police. When Shaunette Tate saw Malloy and Johnson arguing, she called Anthony Tate to "come outside" where the altercation was occurring.

         After hearing his mother, Anthony Tate approached Johnson and Malloy, who continued to call Johnson "hot." Malloy then asked Johnson, "What if I shoot your car?" to which Johnson replied, "[W]ell, I guess that make you feel good, " whereupon Malloy asked, "What if I shoot you?" to which Johnson responded, "I guess I be dead." Malloy then pulled out a black pistol from his waistband and pointed it at Johnson.

         Anthony Tate intervened, pushing Malloy's arm in an effort to get the firearm out of Johnson's face. Johnson then got into his car and drove away, stopping down the block next to a marked police car where Sergeant Ellen Bader was sitting. Johnson described the incident to Sergeant Bader and identified Malloy as the man who had threatened him, referring to Malloy by his nickname "Pop Pop." At trial, Sergeant Bader described Johnson as "really upset" and "agitated."

         During the testimony of Johnson and the two Tates, the government elicited evidence of a prior instance in which Malloy had threatened Johnson.[2] Shaunette Tate testified that a couple of weeks before the July 22, 2015, incident, she observed Malloy yelling across the parking lot at Johnson, calling him "hot." During that confrontation, she added, Malloy told Johnson that "he'd shoot [Johnson's] car up." Johnson also testified for the government, confirming that he and Malloy had had prior confrontations in which Malloy had "said threatening words" to him.

         Finally, during Anthony Tate's testimony, the prosecutor played for the jury a recording of a telephone call from the D.C. Jail in which Malloy was on the phone with a friend. During the call, Malloy's friend went to find Anthony Tate so that Malloy could speak with him. After Tate was handed the phone, Malloy told Tate that he was to go to his father (Johnson) and tell him not to come to court because Tate and Tate's mother still have to live around there. At the end of the call, Malloy advised Tate: "[T]ell your father I still live right there. Me and my mom still live there. You know how that shit go." Malloy then said, "That's not a threat" before hanging up.

         During the defense case-in-chief, Malloy called two eyewitnesses to testify about the incident. Damon Hudson, a friend of Malloy, testified that he and Malloy had been playing basketball with a group of friends during the afternoon and early evening hours of July 22, 2015, near the parking lot where Johnson was sitting in his car on the phone. Hudson further testified that as he, Malloy, and the others were walking back to the apartment complex, they ran into Johnson, who had his cell phone out. Malloy asked why Johnson was taking pictures of him, and the two began to argue. During the argument, according to Hudson, he heard Johnson tell Malloy to go get his gun, at which point Malloy told Johnson he did not have a gun, lifting his shirt to show Johnson that no gun was in his waistband. Johnson then sped off in his car. During the altercation, Hudson did not see Shaunette Tate or Anthony Tate in or near the parking lot.

         Charles Malloy, appellant Malloy's brother, also testified for the defense, informing the jury that he had been with his brother before he got into an argument and saw part of the argument with Johnson. Charles Malloy added that when he approached his brother and Johnson in the parking lot, Charles Malloy saw Johnson pulling off in his car saying, "Have your gun when I get back."

         At the close of the evidence, the trial court instructed the jury on the elements of each crime, using the standard "Redbook" instructions at the time.[3]

         Approximately four hours after jury deliberations began, the jury sent the trial court a note: "[W]e have reached an impasse on Count 3." While the parties were reviewing that note, the clerk gave the trial court a second note in which the jurors inquired: "May we consider the audio phone call as a threat of Count 3?" As both the government and defense counsel agreed, the court told the jurors that "the answer to that question is no" and that they should "continue their deliberations."

         After returning to deliberations, the jury found Malloy guilty of threatening to injure or kidnap a person, but acquitted him of assault with a dangerous weapon, [4] possession of a firearm during a crime of violence, [5] and carrying a pistol without a license outside a home or place of business.[6] Thereafter, the court sentenced him to twenty-four months of incarceration. Malloy then filed this timely notice of appeal.

         II. Johnson Evidence

         Malloy challenges the trial court's decision to admit evidence that he previously threatened Johnson. Specifically, he opposes the admission of testimony regarding the altercation that occurred a few weeks before the charged conduct, when Malloy threatened to shoot Johnson's car. During trial, the government argued - and the trial court agreed - that evidence of Malloy's prior threat was relevant and admissible under our en banc decision in Johnson, [7] for two reasons: the threat was "direct and substantial proof of the crime charged, " and it was "necessary to place [the] incident in context." The trial court also concluded that this evidence was more probative than prejudicial.

         Malloy contends, to the contrary, that the prior threat was inadmissible "propensity" evidence and, in any event, was more prejudicial than probative. He fails to persuade us.

         We review for abuse of discretion.[8] We have held that "evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged."[9] This "disposition" or "propensity" limitation does not preclude admission of "other crimes" evidence "when relevant to factors such as motive, intent, or the identity of the person charged with the commission of the crime on trial."[10] In addition, as we announced in Johnson, other crimes evidence is not barred when it "(1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context."[11] On the other hand, even when an "other crimes" exception would otherwise apply, the trial court must exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice it poses."[12]

         As we have noted, Malloy insists that the prior threat was forbidden propensity evidence, not subject - as the trial court ruled - to Johnson exceptions (1) and (3). We need not resolve whether Malloy's prior threat was admissible under exception (1) as "direct and substantial proof of the charged crime."[13] We are satisfied that the threat was admissible under exception (3) as "necessary to place the charged crime in an understandable context."[14]

         This court derived exception (3) from earlier decisions sustaining admission of other crimes evidence offered "to explain the immediate circumstances surrounding the offense charged, "[15] that is, evidence derived from "events so closely related to the charged offense in time and place that [it is] necessary to complete the story of the crime . . . by placing it in context of nearby and nearly contemporaneous happenings."[16]

         Evidence of Malloy's suspicions of Johnson as a police informant and of their contentious relationship "was relevant to determining whether the defendant's words charged as threats would have conveyed a fear of serious bodily harm to an ordinary hearer" in Johnson's situation (the test applicable at the time of trial).[17]Furthermore, testimony about the prior altercation, reflecting the men's preexisting hostility to each other, was admissible to show that Malloy's suspicion of Johnson as a police informant had been building.[18] In sum, such evidence was properly admitted as context evidence, "necessary to complete the story."[19]

         While we conclude that the evidence was properly admitted under the third Johnson exception, we noted earlier that another requirement also "applies to the admission of all evidence of 'other crimes, ' Drew and non-Drew alike[.] . . . [R]elevance, or probative value, must be weighed against the danger of unfair prejudice."[20] In making that determination, "the trial court should consider a variety of factors, including the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility."[21] This evaluation is "quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision."[22]

         We defer here, satisfied that the trial court did not erroneously exercise its discretion in weighing probative value against unfair prejudice. As we have observed, the prior threats testimony placed the charged threat and assault in context, helping the jury to understand Johnson's casual, virtually indifferent response to Malloy's threat when no weapon had yet been displayed. Malloy fails to identify any substantial reason why the prior threat was unduly prejudicial other than the risk that the jury would impermissibly conclude that, because Malloy had threatened Johnson in the past, he must have threatened him this time as well. The "context" exception, however, defeats that generic objection here.[23]

         III. Hearsay Evidence

         Malloy contends that the trial court abused its discretion when ruling on the admissibility of testimony by two defense witnesses expressing what Malloy and Johnson had said to one another during their altercation. He stresses that, in excluding or limiting certain reported statements of the two antagonists as hearsay, the trial court erred, to his substantial prejudice. Again, we cannot agree.

         At issue are the testimonies of Malloy's friend, Damon Hudson, and Malloy's brother, Charles Malloy. Defense counsel offered the testimony of each "to show what was said, " not for the truth of the matter asserted. Without referencing the witnesses' names, counsel explained to the court:

         I expect my witness to say that the argument escalated.

There was name calling. [1] Mr. Johnson threatened to beat Mr. Malloy's tail end, among other things. [2] There was, at some point, Mr. Johnson talking about, you know, "How are you going to do that? With a gun?" [3] I think my witness is going to say that Mr. Malloy pulled his shirt up and said, "I don't need a gun to kick your" derriere, or maybe a little stronger wording than that, and that [4] at some point Mr. Johnson left and said, "I will be back. Get your gun."

         Defense counsel never attempted to elicit the first two statements (nor did either witness volunteer them). Thus, only the third and fourth statements are before us.[24] As to these, rather than exclude them altogether as hearsay as the government requested, the trial court admitted them in evidence with a limiting instruction, informing the jury that the statements by the observers of the Johnson-Malloy altercation "don't come in for the truth of the matter asserted. They come in to explain the state of mind of the witness [Hudson or Charles Malloy] at the time all of these events were occurring."

         This court has recognized that, when appropriate, the state-of-mind exception to the hearsay rule can apply to the mind of a listener as well as a declarant.[25] But it is difficult to understand how the states of mind of Hudson and Charles Malloy would be relevant at trial.[26] At issue, rather, were the states of mind of the declarants, Johnson and Malloy, expressing their mutual antagonism - to the end of discerning whether Malloy was engaged in a taunt or a threat. Thus, the question here is whether the trial court abused its discretion[27] by imposing its "witness's" state-of-mind limitation on the jury's consideration of the witnesses' statements.

         On appeal, Malloy contends that the testimonies of Damon Hudson and Charles Malloy were not hearsay at all. These statements, Malloy stresses, had not been offered in evidence to prove their truth but, rather, "to show the context and nature of the [defense] argument and, specifically, of the statements made by Malloy" - "evidence that was directly relevant to the determination of whether [Malloy][28] made a true threat."[29]

         Malloy's argument, however, is undercut by the fact that the statements he sought to admit were in fact admitted. More specifically, the trial court did not exclude the testimonies of Hudson and Charles Malloy, and we can discern no residual prejudice from the reference in the trial court's instruction limiting the jury's consideration of their testimonies to each witness's "state of mind." The instruction was provided only once, early on, [30] and similar additional statements of the two witnesses were admitted after the instruction without further elaboration of it.[31] In sum, we perceive no substantial prejudice - no abuse of discretion. Any instructional error was harmless;[32] it "was sufficiently insignificant to give us fair assurance that the judgment was not substantially swayed by it."[33]

         IV. Plain Error Review

         In Malloy's final challenge, he maintains that his felony threats conviction must be reversed because, in light of this court's en banc decision in Carrell, [34] the jury instructions unconstitutionally permitted the jurors to find him guilty without finding an essential element of the offense: that he "acted with the purpose to threaten or with knowledge that his words would be perceived as a threat."[35]

         At the close of the evidence, the trial court instructed the jury (in the part relevant here) as follows:

As to the charge of threatening to kidnap or injure a person, the elements of threat, each of which the government must prove beyond a reasonable doubt, are [1] that the defendant spoke words heard by Anthony Johnson; [2] the words the defendant spoke would cause a person reasonably to believe that Anthony Johnson would be seriously harmed; and [3] that the defendant intended to make the communications which constituted the threat. The government is not required to prove that the defendant intended to carry out the threat. It is not necessary that . . . the intended victim actually heard the words or learned about them.

         Rather than include Carrell 's language applicable to a defendant's intent, this instruction permitted conviction merely if the words spoken would cause a person "reasonably to believe" that the complainant would be seriously harmed, without regard to whether the defendant intended such a threat or knew that the words would be perceived as a threat. Malloy neither brought this omission to the court's attention nor objected to the instruction.

         Malloy's failure to object at trial[36] means that his claim of error "is subject to the strictures of 'plain error' review."[37] "For reversal, there must be [1] 'error' that is [2] 'plain' (meaning 'clear' or 'obvious'), that [3] 'affects substantial rights, ' and that, if not corrected, [4] would result in a 'miscarriage of justice' (meaning conviction of an innocent defendant) or otherwise would 'seriously affect [ ] the fairness, integrity or public reputation of judicial proceedings.'"[38] Ultimately, in conducting this review, "[w]e have said reversal for plain error should be confined to particularly egregious situations, " as "plain error is meant to strike a careful balance between judicial efficiency and the redress of injustice."[39] We turn to each of the criteria required for review.

         A. Was there error?

         To satisfy plain error review, there first must be a finding of trial court error, a "[d]eviation from a legal rule."[40] At the time of Malloy's trial, the felony threats statute required findings "that the defendant uttered the words to another person; that the words were of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer; [and] that the defendant intended to utter the words which constitute the threat."[41] Shortly after Malloy's trial, this court sitting en banc in the Carrell litigation, [42] reviewed a preserved challenge to the trial court's failure to consider an appellant's state of mind before convicting him of attempted threats. Drawing upon a Supreme Court decision, [43] we held that a defendant's mens rea, or state of mind, is a necessary element of the crime.[44] We concluded, more specifically, that in order to obtain a threats conviction, either misdemeanor or felony, the government must prove the defendant's intent to utter the communication as a threat, and it "may carry its burden of proof by establishing that the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat."[45] In light of our en banc decision in Carrell, the government quite properly concedes that the trial court erred in failing to instruct the jury on the requisite mens rea of felony threats.

         B. Was the error plain?

         Having discerned error, we turn to whether that error was "plain." First, "plain is synonymous with clear or, equivalently, obvious, "[46] not "subject to reasonable dispute"[47] - as now "established and settled"[48] by Carrell for the statutory threat at issue here. Second, plainness is assessed as of "the time of appellate review" regardless of "the state of the law at the time of trial."[49]Accordingly, because the law applied at trial did not require a mens rea finding for conviction, and thus was "clearly at odds"[50] with the law established by Carrell, the instructional error was assuredly plain, a conclusion the government does not dispute.

         C. Did the error affect appellant's ...

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