IN RE T.M.
2017 D.C. App. LEXIS 56
| D.C. | 2017Background
- On Aug. 30, 2013, T.M., a juvenile, was with a group of >10 teenagers who approached J.W. and friends after a high‑school football game; T.M. was seen carrying a gun and, after an unidentified male said something like “Don’t do it in the light” or “T., if you’re going to shoot it, get out of the light,” a single shot struck J.W. in the legs. The group fled.
- T.M. was charged in a 22‑count indictment with multiple armed‑assault, attempted‑murder, conspiracy to commit murder/assault with a dangerous weapon, carrying a pistol, possession/unregistered firearm, unlawful ammunition possession, and discharge of a weapon. Several intent‑based counts were dismissed at acquittal motion. The trial court found T.M. delinquent on the remaining counts and sentenced her to one year probation.
- The trial court inferred a conspiracy from: (1) T.M. arriving with and following in a large group, (2) her open possession of a gun, (3) an unidentified male’s pre‑shooting advice about avoiding light, and (4) the group’s joint flight after the shooting.
- On appeal T.M. (1) challenged sufficiency of the evidence for the conspiracy conviction and (2) made a first‑time facial Second Amendment challenge to D.C. Code § 22‑4504(a) (the carrying‑a‑pistol statute), relying on Heller and Palmer.
- The D.C. Court of Appeals reviewed the sufficiency claim de novo but construed evidence in the light most favorable to the government; the constitutional challenge was reviewed for plain error because it was raised for the first time on appeal.
- Court held there was sufficient evidence for conspiracy under existing D.C. precedent and rejected the facial Second Amendment challenge on plain‑error grounds, finding the unconstitutionality of § 22‑4504(a) was not "clear and obvious" at trial or on appeal; remanded only to address merged convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy to commit murder/assault | T.M.: government failed to prove an agreement; at most there was presence, advice, or unilateral conduct, not a mutual agreement | Gov’t: inferences from group collocation, open weapon, pre‑shot advice to avoid detection, coordinated following and flight support an agreement | Affirmed: evidence (circumstantial plus reasonable inferences) was sufficient to support conspiracy verdict under D.C. precedent (Mitchell, McCoy) |
| Facial challenge to D.C. Code § 22‑4504(a) (carrying a pistol) — Second Amendment | T.M.: Heller and Palmer support that the Second Amendment protects carrying outside the home; the 2012 statutory amendment effectuated a total ban and is facially unconstitutional | Gov’t: Heller does not clearly extend the core home right to public carry; D.C. precedent left the scope beyond the home unsettled; Palmer is persuasive but not controlling and relied on Peruta (later undermined) | Rejected on plain‑error review: even assuming statute facially unconstitutional, error was not "clear and obvious" at trial or on appeal, so plain‑error relief denied |
| Standard for plain‑error review of first‑time constitutional challenge | T.M.: (implicit) trial court should have declared statute unconstitutional sua sponte in light of Heller/Palmer | Gov’t: plain‑error relief requires clear and obvious constitutional error; D.C. case law left question unsettled | Held: plain‑error not satisfied—court needs controlling authority or well‑settled principle showing clear constitutional violation; absent that, reversal on plain error is inappropriate |
| Remedy: merger of convictions | T.M.: (implicit) some convictions redundant and should merge | Gov’t: government concedes certain counts merge | Held: affirmed convictions but vacated and remanded for merger of lesser included/duplicative counts; no remand for sentence adjustment because juvenile disposition unaffected |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (Second Amendment protects an individual right to possess firearms for self‑defense in the home)
- Mitchell v. United States, 985 A.2d 1125 (D.C. 2009) (conspiracy inference from coordinated emergence, weapons, pursuit and joint flight)
- McCoy v. United States, 890 A.2d 204 (D.C. 2006) (agreement inferred from coordinated pursuit and verbal instructions during attack)
- Harrison v. United States, 60 A.3d 1155 (D.C. 2012) (circumstantial evidence insufficient for conspiracy where inferences are speculative)
- Snell v. United States, 68 A.3d 689 (D.C. 2013) (discussing limits of Heller beyond the home and effect of removing licensing language)
- Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014) (district court held D.C.’s ban on public carrying unconstitutional under Heller)
- Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. en banc 2016) (holding Second Amendment does not protect a general public right to carry concealed firearms; undermined Peruta panel decision relied on by Palmer)
- Masciandaro v. United States, 638 F.3d 458 (4th Cir. 2011) (uncertainty about Heller’s scope beyond the home)
- Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (the Second Amendment’s core is within the home; scope outside home uncertain)
- Conley v. United States, 79 A.3d 270 (D.C. 2013) (plain‑error review requires that constitutional error be clear and obvious; discussion of facial challenge standards)