224 A.3d 213
D.C.2020Background
- Michael Jones was killed in an exchange of gunfire; the fatal bullet fragmented so forensic attribution to a particular shooter (Fleming, Peoples, or Hamlin) was impossible.
- Surveillance showed Bernard Fleming on a Lincoln Tower balcony during the shooting, retrieving and later handing what appeared to be a gun to Joseph Peoples; shell casings indicated shots from the balcony and street level.
- The government proceeded on three theories at trial: (1) Fleming as principal if he fired the fatal shot; (2) Fleming as aider-and-abettor if Peoples fired the fatal shot; (3) a causation theory if a third party (Hamlin) fired the fatal shot but Fleming’s earlier conduct caused the death.
- The trial court instructed the jury using this court’s Roy gun-battle substantial-factor causation test rather than an explicit but-for causation standard; a division affirmed the conviction, and the full court granted en banc review.
- In light of the Supreme Court’s decision in Burrage v. United States, the en banc court held that Roy’s substantial-factor gun-battle instruction failed to convey the but-for causation requirement for homicide, vacated Fleming’s second-degree-murder-while-armed conviction, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does "kill" in the D.C. murder statute require proof of causation and specifically but-for causation? | Fleming: "kill" means "cause death," requiring but-for causation. | U.S.: trial used Roy substantial-factor test; on appeal government later conceded but-for is required under Burrage. | "Kill" means "cause death," and as a general rule but-for (actual) causation is required for homicide. |
| Was the Roy gun-battle/substantial-factor jury instruction legally adequate? | Fleming: Roy-based instruction is insufficient because it permits conviction without but-for causation. | U.S.: argued preservation and contended instruction sufficed or Roy should stand. | Instruction was inadequate under Burrage; conviction vacated and case remanded. |
| Can a defendant be the criminal (proximate) cause when an independent third party voluntarily fires the fatal shot? | Fleming: A voluntary intervening act by a third party cuts off proximate causation; defendant not liable as the cause. | U.S.: Reasonable foreseeability of the third party’s response can preserve proximate causation; intervening acts do not automatically break the chain. | Court: Intervening voluntary acts do not automatically defeat proximate cause; if but-for causation is proven and the third-party act was reasonably foreseeable (and not highly extraordinary), proximate causation may still be satisfied. |
| Role of vicarious liability (aiding/abetting, conspiracy) and concurrence of mens rea/actus reus in homicide causation | Fleming: Vicarious theories cannot circumvent the need for actual causation; concurrence limits liability. | U.S.: Aider/abettor or conspirator may be guilty even if not the but-for cause; concurrence requires guilty mental state at time of relevant conduct. | Court: Aiding/abetting and conspiracy can impose liability even when defendant’s acts were not the but-for cause; concurrence requires the mens rea to be present at the time of the defendant’s conduct. |
Key Cases Cited
- Burrage v. United States, 571 U.S. 204 (2014) (but-for causation ordinarily required for result crimes; discusses rare multiple-sufficient-causes exception)
- Roy v. United States, 871 A.2d 498 (D.C. 2005) (prior D.C. gun-battle substantial-factor causation instruction; overruled in part)
- Comber v. United States, 584 A.2d 26 (D.C. 1990) (D.C. murder statute embodies common-law murder; interpretive guidance)
- Blaize v. United States, 21 A.3d 78 (D.C. 2011) (defendant liable where his conduct foreseeably produced a chain of events culminating in a third party causing death)
- Paroline v. United States, 572 U.S. 434 (2014) (discussion of proximate cause as a limitation on causation; foreseeability and scope-of-risk framing)
- Bonhart v. United States, 691 A.2d 160 (D.C. 1997) (defendant held responsible where arson set in motion events leading to death)
- McKinnon v. United States, 550 A.2d 915 (D.C. 1988) (defendant liable where initial injury set in motion foreseeable medical consequences resulting in death)