Marquet Bryant and Robert B. Hagood v. United States, 93 A.3d 210

Background

On Nov. 24, 2010, Edmonds and occupants at Bostic’s apartment had two hostile encounters with appellants Hagood and Bryant within ~10 minutes; guns were displayed and shots fired (one through the door grazing Edmonds’ ankle; one into the hallway ceiling).
Both men were tried together and convicted by a jury of attempted first-degree burglary while armed, assault with a dangerous weapon (ADW), two counts each of possession of a firearm during a crime of violence (PFCV), unlawful possession of a firearm, and carrying a pistol without a license (CPWL); Hagood was also convicted of malicious destruction of property; Bryant was acquitted of that count.
The evidence showed two temporally separated confrontations (first: Hagood forcing head/arm/gun into door and shot through door; second: both returned, Hagood entered, Bryant at doorway with revolver and fired into ceiling) and presented alternative factual bases for convictions.
Neither appellant requested a special unanimity instruction at trial; the court gave only a general unanimity instruction. The jury sent notes during deliberations indicating factual confusion about which act supported some counts.
Appellants raised on appeal: (1) trial court’s failure to give a special unanimity instruction sua sponte (plain error review); (2) that their two PFCV convictions should merge; and (3) several trial errors (judge’s questioning, self-defense instruction, and a challenge to CPWL and merger of CPWL with unlawful possession).
The court found the failure to give a special unanimity instruction was clear error but, under plain error analysis, did not require reversal on these facts; it held the two PFCV convictions for each appellant merge and remanded for vacation of one PFCV conviction and resentencing; all other claims were rejected.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Special unanimity instruction	Appellants: trial court should have sua sponte given a special unanimity instruction because the single-count charges encompassed two distinct incidents and jury could have convicted on different factual predicates	Government: incidents were part of a single continuous criminal episode; general unanimity instruction sufficed	Court: Failure to give special unanimity instruction was clear error, but under plain error review appellants did not show prejudice or that reversal was required; convictions affirmed on this ground
Merger of two PFCV counts	Appellants: each’s two PFCV counts arose from a single continuous possession of one weapon and thus must merge	Government: predicate offenses (attempted burglary and ADW) are distinct so PFCV counts stand separately	Court: PFCV counts merge because each pair arose from uninterrupted possession during a single continuous violent episode; remand to vacate one PFCV count per appellant and permit resentencing
Judge’s questioning of witnesses	Bryant: judge’s clarifying questions improperly interfered and prejudiced him regarding whether he entered apartment	Government: questions were neutral clarifications initiated by prosecutor; did not assume partisan role	Court: No plain error — judge’s questions merely clarified testimony on the record and did not prejudice Bryant
Self-defense instruction & CPWL challenge	Bryant: trial court should have instructed on self-defense; CPWL is unconstitutional given DC licensing regime; CPWL merges with unlawful possession	Government: Bryant provoked/created the confrontation by returning armed; CPWL and unlawful possession are distinct; CPWL statute is valid	Court: No entitlement to self-defense instruction (defendant deliberately placed himself to provoke); CPWL and unlawful possession are distinct offenses; prior precedent upholding CPWL controls

Key Cases Cited

Wynn v. United States, 48 A.3d 181 (D.C. 2012) (plain-error review of special unanimity instruction)
Scarborough v. United States, 522 A.2d 869 (D.C. 1987) (special unanimity instruction required when single count encompasses separate incidents)
Gray v. United States, 544 A.2d 1255 (D.C. 1988) (factors to determine single continuous course of conduct vs. separate incidents)
Owens v. United States, 497 A.2d 1086 (D.C. 1985) (unanimity and jury agreement as to factual predicate)
Matthews v. United States, 892 A.2d 1100 (D.C. 2006) (PFCV merger principles and exception for uninterrupted possession)
Nixon v. United States, 730 A.2d 145 (D.C. 1999) (basis for merging PFCV where single act of violence and continuous possession)
Stevenson v. United States, 760 A.2d 1034 (D.C. 2000) (fork-in-the-road/fresh impulse test for merger)
Kitt v. United States, 904 A.2d 348 (D.C. 2006) (remand procedure when merging convictions require vacation and resentencing)