Fox v. United States
11 A.3d 1282
| D.C. | 2011Background
- Appellants Terrence Fox, Maurice Smith, and Donnell Stewart were involved in an armed liquor-store robbery and ensuing high-speed chase in DC;
- The group planned the robbery, stole a minivan, and wore masks and gloves; three robbers carried firearms inside the store while Stewart did not display a weapon at the store;
- During the ride to the store, Washington testified he temporarily gave a firearm to Stewart, who then relinquished it before entering the store;
- Police pursued the minivan; several officers observed the suspects and recovered three loaded handguns, masks, gloves, and a screwdriver from the vehicle or scene;
- Certificates of No Record (CNRs) were admitted to prove CPWL, UF, and UA charges, and the defendants challenge this under confrontation and Sixth Amendment principles;
- The DC Court of Appeals ultimately reversed several convictions and remanded for vacatur of related sentences, affirming other judgments
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Stewart’s PFCV and aiding and abetting | Stewart aided and abetted armed robbery; Stewart knowingly participated | No affirmative act by Stewart aided possession of firearms during the crime; cannot support PFCV | Conviction for PFCV reversed; aiding-and-abetting upheld on armed robbery, not for PFCV |
| Aiding-and-abetting instruction and mens rea | Instruction did not misstate mens rea; proper under Appleton/Wilson-Bey framework | Instruction allowed broader liability without same mens rea as principal | No plain error; instruction not erroneous |
| Merger of reckless driving and fleeing from arrest | Fleeing requires additional elements beyond reckless driving; not one offense | Possible merger as greater/lesser included offense | No merger; offenses involve distinct elements (including property damage for fleeing) |
| Admission of CNRs and Sixth Amendment/confrontation | CNRs are testimonial and their admission violated confrontation rights | Certificate admission challenged, but error limited and does not mandate reversal | CNRs vacated for CPWL, UF, UA counts; other convictions unaffected |
| Prosecutor's rebuttal statements about 'other police paperwork' | Rebuttal improperly suggested additional unseen evidence | Statements biased the jury against Fox | No substantial prejudice; convictions stand |
Key Cases Cited
- Lancaster v. United States, 975 A.2d 168 ((D.C. 2009)) (requires some act aiding possession of firearms for PFCV via aiding and abetting)
- Dang v. United States, 741 A.2d 1039 ((D.C. 1999)) (notes on how blocking or aiding can support PFCV in armed robbery contexts)
- Guishard, 669 A.2d 1306 ((D.C. 1995)) (aider and abettor must reasonably foresee the principal will be armed)
- Hordge v. United States, 545 A.2d 1249 ((D.C.1988)) (aider and abettor awareness that crime will be committed while armed)
- Wilson-Bey v. United States, 903 A.2d 818 ((D.C. 2006)) (limits on aiding-and-abetting instruction when it relaxes mens rea requirements)
- Appleton v. United States, 983 A.2d 970 ((D.C. 2009)) (assessment of aiding-and-abetting mens rea language)
- Cannon v. United States, 838 A.2d 293 ((D.C. 2003)) (double punishment limits for theft and receipt of stolen goods)
- Daye v. United States, 733 A.2d 321 ((D.C. 1999)) (prosecutorial misconduct concerns in closing arguments)
- Donnelly v. DeChristoforo, 416 U.S. 637 ((1964)) (standard for evaluating prosecutors' closing remarks)
- McGrier v. United States, 597 A.2d 36 ((D.C. 1991)) (prejudice standard for prosecutorial misconduct in closing)
- Tyree v. United States, 942 A.2d 629 ((D.C. 2008)) (A&B liability requires participation in the crime with knowledge)
- D.C. v. United States, 11 A.3d 1282 ((D.C. 2011)) (the present opinion's citation)