BERNARD FLEMING v. UNITED STATES
2016 D.C. App. LEXIS 416
| D.C. | 2016Background
- On July 7, 2012, a gunfight occurred outside Lincoln Tower; Michael Jones was killed. Video and shell‑case evidence showed multiple shooters and shots fired from a second‑floor balcony where appellant Fleming was seen. Forensic evidence could not conclusively link any particular shooter to the fatal bullet.
- Appellant Fleming was tried (with codefendant Peoples) on first‑degree murder while armed and related weapons and assault counts; the trial court dismissed first‑degree murder and the jury convicted Fleming of second‑degree murder while armed, assaults, weapons offenses, and three PFCV counts. Peoples was acquitted of homicide.
- The prosecution sought a “gun battle” (urban gun battle) causation instruction permitting conviction if the defendant’s participation in a gunfight substantially contributed to and made death reasonably foreseeable, even if another combatant fired the fatal shot.
- Fleming objected, arguing the instruction is improper where the victim was an active participant (not an innocent bystander) and also raised multiple prosecutorial‑misconduct claims (witness intimidation question, alleged vouching/personal opinion in argument, and belated admission of a compilation video exhibit).
- The court affirmed Fleming’s convictions, rejected the prosecutorial‑misconduct claims, and remanded to vacate two of the three PFCV convictions on merger grounds.
Issues
| Issue | Plaintiff's Argument (Fleming) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether a gun‑battle causation instruction is improper when the victim was a participant in the shootout | Roy‑style instruction applies only when the victim is an innocent bystander; not to opposing combatants | The instruction can be modified to omit “innocent bystanders”; foreseeability and substantial‑factor proximate‑cause principles cover participant victims | Instruction proper; proximate‑cause theory applies equally where victim was a combatant because a shootout creates a shared zone of danger and death by stray or friendly fire is reasonably foreseeable |
| Prosecutorial question to witness: “Are you scared to be here today?” | Improper and prejudicial; suggested threats and guilt by association | Question was permissible to explain witness’s inconsistent memory/demeanor and lack of candor; trial court sustained objection | Not improper in context; trial court did not abuse discretion in its response |
| Prosecutor vouching / expressing personal opinion in closing and rebuttal | Remarks vouched for witness credibility and conveyed extra‑record knowledge | Remarks were rhetorical and based on admitted evidence; fair argument drawing inferences | Remarks were fair comment on the evidence; not improper; court gave curative instruction and no reversal warranted |
| Late admission of compilation video exhibit after closings | Unfair surprise; denied opportunity to challenge compilation narrative | Disc was merely a compilation of already‑admitted clips; no prejudice; timely objections could have been made earlier | Admission not misconduct or prejudicial; harmless; trial court acted within discretion |
| Merger of multiple PFCV convictions | Multiple PFCV counts arose from single continuous possession and should merge | Government conceded merger | Court ordered remand to vacate two of three PFCV convictions |
Key Cases Cited
- Roy v. United States, 871 A.2d 498 (D.C. 2005) (announcing and approving the urban “gun battle” proximate‑cause instruction)
- McCray v. United States, 133 A.3d 205 (D.C. 2016) (application of urban gun battle theory in subsequent cases)
- Blaine v. United States, 18 A.3d 766 (D.C. 2011) (related discussion of gunbattle/causation principles)
- Matthews v. United States, 892 A.2d 1100 (D.C. 2006) (holding on merger / PFCV and related principles)
- Comber v. United States, 584 A.2d 26 (D.C. 1990) (discussion of malice and limits on extending homicide liability)
- Waller v. United States, 389 A.2d 801 (D.C. 1978) (statutory interpretation that murder requires the person who "inflicted injury ... from which [victim] died")
- Ruffin v. United States, 642 A.2d 1288 (D.C. 1994) (use of zone‑of‑danger as a mens rea concept in certain homicide contexts)