Jones v. United States
716 A.2d 160
D.C.
1998
Check Treatment

*1 JONES, Appellant, Erik STATES, Appellee.

UNITED

No. 96-CF-1252. Appeals. Court

District of Columbia

Argued Oct. July

Decided *2 Johnson, appellant.

Gene R. Brooks, D. Blane United States Assistant Holder, Jr., Attorney, whom Eric H. Attorney at time the brief United States filed, Fisher, Roy and John R. W. III, Robert D. and Lisa A. MeLeese Okun Attorneys, Prager, Assistant United States brief, appellee. were on the STEADMAN, SCHWELB, and Before RUIZ, Judges. Associate STEADMAN, Judge: Associate jury aby Erik was convicted of one fact count of first armed, § 22- degree while D.C.Code murder (1996), and one count of obstruction of (1996).1 22-722(a) justice, D.C.Code "cut,” jury acquitted 1. The Jones of count related to the events in the an additional these counts explain granted justice, possession court obstruction of and counts which we The trial infra. acquittal appellant's of a motion for a on firearm crime of violence dangerous weapon. charges, assault with a three of three other as discussed One All infra. Dunbar, appeal quickly him walk towards only issue whether the evidence Steven K sup- sitting been on the presented sufficient to who also had Street to the cut. port curb near entrance those convictions. pistol. carrying noticed that Rice challenge to the reviewing When *3 times, killing then Dunbar him. shot seven evidence, sufficiency of we examine that the once he the Webb testified that heard light in to sus evidence the most favorable shots, safety for the back of he ran towards See, v. taining e.g., the verdict. Hammon fence, jumped a the cut. He then over (D.C.1997); States, 97, 107 United 695 A.2d cut, shadowy into looked back the and saw (D.C. States, v. A.2d 30 Irick United 565 neighbor- appellant, knew from the whom he 1989); States, 460 A.2d McClain “Erky-Berk.” Appellant hood as stood (D.C.1983). recognize must “the We away arm about fourteen feet with his raised. credibility jury’s right assess to draw and appellant fired Webb testified that two it inferences from the evidence reasonable hit, him, three none of but shots which States, heard,” v. has Nelson United acknowledged weapon could not a he equal and accord appellant’s upraised hand. ran to a Webb weight to evidence and direct circumstantial happened; house told him friend’s and what evidence, Hammon, supra, 107. 695 A.2d at the at trial that Webb told friend testified disprove every need not him, guy tried to shoot me because “[T]he theory of innocence. Lattimore v. United appellant saw him.” Webb later identified Irick, (D.C.1996); 684 A.2d separate arrays, photo he and Rice from and a supra, 565 A.2d at 30-31. shall reverse We appellant in court. identified only if no insufficiency conviction for there is mind evidence from which a reasonable This first was Webb’s encounter with guilty beyond day. find might appellant the defendant and He had seen Rice “[h]anging reasonable doubt. Harris of K both them earlier around Street,” Applying he and on other occasions along for eviden frequently “[w]alking these standards review claimed see them or sit- insufficiency, tiary wearing we affirm'the convictions. the ting Appellant the cut.” boots, jeans, “yellowish” same black outfit —

I. him gray and a sweatshirt —when Webb saw wearing been “around the cut as had presented by gov- the From the also day. witnesses testi- noon” that Other ernment, could have concluded that appellant Rice were fied to the fact that and following place on eve- events took neighbor- frequently together seen approximately ning April At hood. p.m., Rogest rose from his seat 11:30 S.W., Street, Goings K saw two men who he on a curb the 200 block of Jermaine well, knew along nearby walkway thought appellant, whom he were and walked north cut, Rice, acquainted, Arthur with whom he was Webb encountered and “cut.” Rice, emerge and shoot Dunbar.2 acquaintance, heading oppo- from cut two direction, shooting, Goings Rice. After saw the then spoke briefly and he site Dudley, passed by, to see run back into cut.3 Janice After Webb turned armed, acknowledged Goings on cross-exami- kill with intent to while while.” these assault faces, respect permitted did their which trial court nation because he not see "identify” being appellant one assault with a dan- the lesser-included offense of gerous weapon jury. go to men. Goings one or both of did know whether Goings men could not see the faces the two the men shot Dunbar. they that he wore hoods. He testified because witness, Lewis, Jimmy confirmed that thought perpetrators "Erky-Berk and 3. Another were cut, way just emerged one of them they two men had walked. It Art” "BJust decedent, day every and then both men fled into just by saying if shot the I seen them looked— However, identify ei- neighborhood Lewis could not the cut. Goings had lived in the [sic].” "happened the incident so years appellant ev- ther assailant because would see "almost nine often, quick.” ery day.” "once in He would see Rice less thews, neigh- man Street, young the 200 block K walked out who lived in the lived in acquainted appellant, gunshots house after she borhood. He of her heard the Dunbar, Rice, telephone and his number appellant running together and Rice saw number in note. was the same Matthews out second cut closer to Third Street. ap- shooting implicating did not witness Dudley lived on that stretch K Street for watching a pellant Rice because he was appellant her life and known most of boxing match at a friend’s house twenty appel- televised approximately years. saw She Street, testified, S.W. “very Rice, Third often.” lant she “was neighborhood just by our new to two three II. Rice, too, years.” Although Dudley knew appellant’s challenge to his We start with frequently she him less she saw than saw *4 conviction for after the fact to first appellant. degree jury re- murder while armed.5 The 10, 1995, May executing On while a search verdict, general gov- a but turned Street, in an I warrant unrelated case at 211 argues that the ernment conviction is based S.E., police following recovered the note: appellant’s immediately actions after Dear Butehie Dunbar, including murder of his encounter up? Right you What’s about and now cut flight with Webb in the and his with Rice probably Drapper I have some fun. need out cut. of another you talk lawyer’s to to Vance before the of accessory The elements after to him you talk him on program can degree fact to first murder are: while armed say. you to I am going give what to (1) that offense of degree first murder 554-0577 surpose get number he also to (2) committed, had been that while armed somebody you contact with I for me. need knew that defendant this offense had to him what I say. tell to don’t Because! (3) committed, that, been knowing that this to phone. what talk to him like that on the committed, offense been had the defendant I Alright! say want him to Erik that and provided to person assistance who com was standing Arthur the street across (4) it, mitted and that the so defendant did when shooting the cort started and he specific prevent intent to hinder or people running screaming. saw and Tell arrest, trial, person’s punishment. that ap- Mr. William’s that I Hayman. said Jury See Criminal Dis Instructions for the preciate you where thing done for have (4th Columbia, ed.1993); trict of No. 4.01 you shorty me. Thank’s man easy and be also Butler v. and take care.4 (D.C.1984). jury 442-43 was instructed unsigned, The letter was undated al- and accordingly objection. without though expert an it testified that was appellant’s handwriting. identi- first-degree The “Vance” That Rice committed proved However, fied in the note to Mat- be Vance murder of Dunbar is uncontested. appears cut, exactly reproduced 4. The note as it was shoot from the he Dunbar back as post-trial denying appellant’s in the written order testified. An architect had that there testified acquittal. motions for would have was wall that blocked a view from cut the back to the area outside cut Appellant specific sufficiency makes several ar- killed, contrary where Dunbar but there was guments may as to this conviction we that dis- Dealing any discrepancies evidence. awas First, pose summarily. suggests he that Rice jury quintessential may matter. be The same already successfully escaped (appel- had lant) he when appellant’s impossi- said for assertion that it was alley, encountered Webb in the and that timing physical layout ble and he from any assistance therefore rendered would be inef- and, at the be both scene of the eyewitness But fectual. who had known both thereafter, shortly threatening back in the cut appellant years and Rice for several testified that testifying Webb. The witnesses were a fast- they together adjacent shortly out cut ran of an moving resolve, jury series of events that the had shooting stopped, after the a fair indication and cannot conclude that hardly it thought already Rice he had made his impossible places him to have been in escape. both sequentially. Second, appellant contends that it would have physically impossible to see been for Webb Rice above, speak to not with au- least intimidate him as a defendant noted trial, testify to mur- thorities about the matter or at fact convicted (2) thereby and proven scaring has off Webb der unless the attempt preventing pursue Rice or that the the defendant knew before acted escape. actually perpetrated. See interfere with been murder Little v. United jury could conclude We think reasonable events, sequence From at in an effort to appellant shot Webb beyond jury we think the could conclude himself a witness to absent “induc[e] appellant knew Rice reasonable doubt Outlaw, supra, 632 A.2d remain silent.” See Appellant Dunbar. had murdered Soott, (quoting at 411-12 LaFave & placed Dunbar as witness the event. 168-69). 6.9, passed Webb had range, times close three was shot seven spoken him moments before Rice and even head, jury from which the as times Dunbar; through back shot also looked appellant well could infer death was personally the cut witnessed the murder. event, instantaneous. close that, by jury reasonably firing A could infer appellant affiliation of Rice and both before direction, appellant wanted Webb’s killing, reason- away key eyewitness also frighten ably appellant infer that was aware of Rice’s *5 antagonizing suggest consequences of the and, plan by Mil at least the time Dunbar shooting susceptible was to an Rice. The also joint running of escape of the and out the interpretation “open as and violence to force cut, suc- apprised appellant Rice had by clearing an protect” rescue the felon or the cess of mission. id. 411 escape through the cut. See at route 38). supra, Goings at (quoting Blacrstone, A of ac third element of the offense appellant together and Rice ran testified that the cessory after fact is that defendant the immediately Dunbar was into cut the personally to aid or assist the felon to “act shot, Dudley emerge two later saw the and apprehension the detection or crime avoid nearby. from a cut second States, 632 or v. crimes.” Outlaw United (D.C.1993) 408, v. (quoting 411 Howell acquitted appellant A.2d jury That the State, 55, Md.App. 62 489 A.2d 58 relating inci the counts to the Webb various (1985)). types dent, As of conduct that aid negate to the the supra, see note does not respect, examples in the felon this the sufficiency assist of the evidence as to convic “open being accessory rescue or fact. include force violence to tion for an after the him,” protect (quoting BlacKSTONE, that inconsistent id. IV W. “It is now well-established re by THE LAWSOF ENGLAND 38 themselves do not mandate verdicts COMMENTARIESON 1826)), Dobyns, “inducing a v. 679 A.2d (Chitty ed. witness to versal.” United States — denied, silent,” (D.C.1996), cert. U.S. id. at 490 himself or remain absent Wayne -, L.Ed.2d 1060 117 S.Ct. 137 (quoting 2 R. LaFave & Aus (1997); (Diane) also Smith Soott, tin W. Law Substantive Criminal States, long (1986)), 6.9, A.2d 312 So “aiding the felon at 168-69 support sufficient to escape,” (quoting as the evidence was making in Ms id. at 168). jury 6.9, question, in the fact that the supra, § at conviction Soott, LaFave & appellant of certain related acquitted appellant government maintains that not invalidate the conviction. counts does provid- actions that engaged two different 170, 172 630 A.2d Ransom v. United to Rice. The first ed after-the-fact assistance (D.C.1993).6 threatening or otherwise Furthermore, action, are neces- govern- the outcomes in the cut. Webb This sarily prin- inconsistent. argues, provided assistance to ment (1) working pistol or discard- attempting to introduce a cipal ways: by able felon two link to the fragments that it could or at ed shell eyewitness an to the murder eliminate unacceptable any analyze of the inconsistent attempt be an dilution 6. We think that Do engaged discernible limits. jury’s verdict rule byns, no when “true" basis of a decision Cf. sufficiency at 490-92. evidentiary would a determination of alley principal] other end of Jones-Webb altercation and Webb suffered fled.”).8 through which granting [he] no bullet wounds. The trial court judgments acquittal on the counts of car- But we not here decide whether need pistol rying without a license and assault evidence of the form of asserted as- second expressed intent to kill while armed sistance alone suffice to possible about concern use an imitation flight joining verdict. Even if Rice in his aspects These firearm. and other the ease enough appel- would not itself be to render might jury have led the to have some doubt fact, lant an this action as to related counts but still remain by jury could be as further considered thoroughly convinced that Jones’s activities proof bearing upon purpose nature and against in the cut made him an Webb acces- any action in ambiguous the cut.9 The sory after the fact.7 provided “Dear Butchie” evi- letter further end, vividly demonstrating dence to the same by The second form of assistance rendered appellant quite pre- interested in appellant, government argues, join was to trial, venting apprehension, punish- Rice’s through Rice and escort him he ran Appellant ment. had written that he needed adjacent emerged cut and one further “program say,” what to [Vance] up Appellant might presumed K Street. appellant on the whereabouts himself weapon to have carried the same but also those of Rice. Cf. Ruffin thought cut, he had brandished (D.C.1987) (per have remained scare available to off or elimi curiam) (holding sup- sufficient might nate others he and Rice encounter ported after the fact conviction flight. jury their arguably where, aha, appellant urged principal inter cuts, escorting through find two speak police). might not to Street, K distance, ap into and off into the *6 also have taken the letter as a reflection of pellant “aiding in making the felon appellant’s guilt. consciousness of his own Outlaw, escape.” See 632 A.2d at 411 that long We have held a defendant’s effort (quoting 6.9, 2 supra, § LaFave & SCOTT, may to interfere with a witness constitute an 168). States, Prophet v. United 602 A2d Cf. implied guilt. (Darryl) of admission See (D.C.1992) 1087, (affirming 1092-93 convic States, 229, Smith v. United 591 A.2d 232 aiding abetting where, tion for robbery and (D.C.1991); (John) States, Smith v. United aha, appellant inter “followed behind [the (D.C.1973). 781, 312 A.2d 784-85 principal], looking in all directions as a look [,] might out do ... robbery accessory watched the and element of an The final up murder and immediately met with is [the the fact crime that the defendant dissent escape 7.The would make much of Webb’s ac- 8. the Rice’s is unlike situation we encoun- knowledgment States, in cross-examination that he did tered in United Williams v. 478 A.2d 1101 positively appellant’s not see a Williams, firearm hand we held that the driver that and he did not know whether someone else getaway accessory of a not car was an after the have been in the dark at him. robbery fact to armed because the offense might what an acknowledge But honest witness yet driving complete; not off with the loot possibilities hardly as theoretical weakened the part asportation treated as the of element repeated categorical force Webb’s asser- robbery. Escape Id. at is of an course not appellant tions fired at him and that he was element of the in this case. murder only one the the back there at time. While the jury hand, evidence was sufficient warrant a to conclu- Prophet it On the other is clear from Webb, appellant shot sion had in fact even person serving only a lookout be function can by appellant a similitude of such an action in the perceive an aider and We are unable to abettor. would suffice cut to conviction. any principle distinguish the that would effective quality testimony of Webb's bears no com- lookout, an assistance of a whether he be deemed shortcomings Crawley parison with the v. Unit- aider and abettor or after the fact. States, ed key dant, 320 A.2d 309 where the previously witness did know not the defen- Conversely, might in the cut used the action be observation, gave serious difficulties interpretation appellant’s to bolster the role significantly description discrepant immediate- flight. accompanying Rice in ly identify after the unable incident and was to defendant in court. pursuant to prison is life specific intent der now render Ms assistance with 22-2402(a) (1996). trial, arrest, prevent principal’s that it D.C.Code in specific infer punishment. (Joel) tent from the defendant’s actions. III. 429, States, 466 A.2d Smith v. United appellant’s turn now to convic We (D.C.1983) curiam); (per v. also Carmon justice. This convic tion for obstruction States, (D.C.1985) 498 A.2d United Butehie” tion is based on the “Dear letter. (“The appellant concealed evidence dispute Appellant does that wrote out of under Ms coat and walked sweaters letter, govern nor does contend that suffi paying without for them was store prove failed to substantive element ment requi permit cient court infer the solely Appellant contends of the offense. Indeed, shoplift].”). mtent specific [to site prove when he that the failed by questions can of intent almost definition appel wrote it. The mdictment only by be resort circumstan determined States, wrote it or about December “[o]n lant tial v. United evidence. See Shelton (D.C.1986) Strictly speaking, May 1995.” (observing that

505 A.2d sufficiency argument its nor specific particular “is this is intent a state mind Rather, intent appellant accused unless such mal form. seems to admitted, by government constructively it must be shown circumstantial arguing that the evidence”) Massey (quoting impermissibly amended the indictment or (D.C.1974)). 296, 299 tMnk that 320 A.2d We by prove a fact failing therefrom varied here, if appellant’s acts of assistance See v. in the Mdictment. Pace asserted jury, coupled (D.C. believed when States, 705 United letter, associa “Dear ButeMe” close 1998). Nonetheless, analyzed, the however Rice, includmg at appellant tion between is sufficient. itself,10plainly support of the crime scene We start the observation intent. finding requisite charges that the of Mdictment “[w]hen affirming Although the conviction date, a certain fense occurred ‘on about’ degree fact to first here, notice that a it did a defendant is on armed, must while remand murder Ingram particular date is critical.” resentencmg. Appellant was sentenced to (D.C.1991) *7 years to life imprisonment term of fifteen added). con (emphasis “The evidence will however, statute, for this conviction. The in such circumstances form the Mdictment twenty a maximum sentence of establishes that the offense was commit if it establishes accessory after years’ imprisonment for an reasonably one on a close ted date pumshable by death.” “to crime fact alleged.” Id. (1996). Butler, § In See D.C.Code think was sufficient evidence that We there 447, that first 481 A.2d at held reasonably the note appellant wrote close pun is a “crime degree murder while armed alleged time in the Mdictment. the wMdow of meamng of the by death” ishable within evidence the statute, government introduced as though The accessory fact even after the case, jacket very in this which mur- court same degree for first the maximum sentence a inconsistency at the scene of the crime and be be can be impermissible ”[o]ne no 10. There is killing appellant’s alleged presence at principal participant, but one can also do other tween accessory and his conviction as justify itself an ac- a conviction as acts which Perhaps appellant been could have added.) fact. cessory (Emphasis after the fact." abettor, does charged but it as aider accessory after the Outlaw that an reference in charged as an not also be follow that he could citing Mary- principal, fact cannot also act as which for those actions after the fact case, "principal” presumably word used the land completed. once the murder occurred i.e., sense, not an aider strict in its common-law contrary. quite the See long-established rule is A has 632 A.2d at 411. statute and abettor. See (James) U.S.App. D.C. Smith jurisdiction law this so modified the common curiam). 286, 126, 127, (1962) (per 306 F.2d principals. as and abettors are treated that aiders (James) interpreted v. Unit Smith in Clark As we D.C.Code 22-105. See ed 1062 n. that, trial, appellant that the pending showed tal11 and concluded evidence was had custody party been in the both third until sufficient to convictions. She date, opinion setting December fifteen-page 1994. On for rea- wrote a forth the important sons that are not basis On here and were for that conclusion. the cold record jury, us, Superior quite by ap- made before known to we are unconvinced appellant’s judge third-party pellant’s arguments judge Court the trial revoked custody status him wrong. and ordered held without May

bond. The note recovered on Accordingly, we affirm on belonging in a bedroom to William justice the obstruction of count and the con- Sweeney, “Draper.” whose nickname is A viction for after the fact to first “Butchie,” man known as the addressee of armed, degree murder while but remand for note, previously lived at the same resentencing on the latter conviction. townhouse. The detective testified as to So ordered. recovery of the note also testified that he had executed a warrant search at the same SCHWELB, Judge, concurring Associate premises on November and that this part part: dissenting letter had not been found. contends that Erik Jones jury appellant infer wrote engaged in two discrete actions which are the “Dear Butchie” while he letter was incar- supposed accessoryship to have constituted cerated, viz., on or sometime after December (AAF) First, after the fact to murder. Jones 22, 1994, day before bond was re- alleged attempted to have shot letter, voked. In appellant stated that he Rogest intimidate Webb while Webb was speak “program must Vance him on running through away “cut” and from the say,” what to but that he could do so Second, scene of Steven Dunbar’s murder. telephone over the that he needs But- fled from the area few minutes later help intermediary. chie’s appellant as an If shooter, actual company of the Arthur time, was incarcerated at the then his reluc- Rice. speak telephone tance to over the would be quite understandable since conversation my opinion, AAF conviction Jones’ can- might be monitored corrections authori- fairly on gov- either of the sustained ties. But if he was not incarcerated at the ernment’s theories. Webb’s own admissions time, then arranged he could have his own on the witness what stand about he saw and meeting with personally Vance and advised did not see in the cut raised a reasonable Therefore, him on say. what jury doubt, law, aspect as a matter of could reasonably appellant infer wrote ease; moreover, prosecution’s after he letter was incarcerated in De- acquitted charges Jones of all which but, course, cember it was before discover- were exclusively based Jones’ en- *8 May. ed in testimony The detective’s prosecution’s counter with sec- Webb. they had not found letter a search better, for, theory ond fares no notwith- 1994, though by in November no means dis- standing ingeniously majority’s creative positive, helped range to narrow of dates characterization of Jones’ conduct as period to specified in the indictment. murderer, [166], “escorting” pp. in- fra, actually specifically, what Jones did— away,

IV. ran with Rice at his side—cannot rea- sonably accessoryship as be classified after Here, highly experienced trial judge, the fact. present throughout of course was whole, proceedings and all the per- might per- heard evidence Taken as a the evidence sonally, carefully appellant’s post- haps suspicion that considered a Jones commit- offense, trial acquit- charged written motion ted the but it falls for eonsider- Appellant Superior orally pursuant made such motions at motions Court Criminal government the close of both 29(b). the defense Rule case; ruling the trial court reserved both oral 168 Wright, proving beyond

ably guilt short of (quoting Federal Praotioe AND (1969)). government’s § first 461 reasonable doubt. Prooedure: Criminal facts, theory on the the second falters while Although appellate judges are to a limited re- Accordingly, fails on I would the law. sufficiency in assessing cold record being for an accesso- verse Jones’ conviction evidence, they signif- too prosecution’s have a ry after the fact.1 play. role to As this in icant court stated

Crawley, supra, it is I. necessary proper [mem- indeed —for —and upon of this to draw our own court] bers of review is not doubt. standard experience, judgments, value and common Jones’ AAF conviction for We set aside determining whether sense verdict if, evidentiary insufficiency only viewing keeping was in with the facts. reached most to the light the record in the favorable Id. at 312 Prao- (citing 8 Moore’s Federal prosecution, there was no we conclude that 29.06). TICE jury could upon impartial evidence which an Moreover, as doubt, the court stated in Salaman- find, fairly beyond a reasonable passage might easily ca in a have been maj. op. at Jones committed the offense. See mind, with Erik 162; States, 839, written Jones 668 A.2d Harris v. United necessarily 841 Our review is sufficiency of the evidence warrants [t]he deferential, up jury, it is and not to for particular scrutiny when the evidence tribunal, appellate credibility assess strongly defendant is indicates draw reasonable inferences. guilty of a other than that for which crime convicted, for but which he was (now Justice) Judge But as Thomas stated circumstances, charged. a tri- Under such Long, 284 for court United States v. fact, particularly jury, may convict er 405, 409, 1572, 1576, U.S.App. 905 F.2d D.C. is a defendant of a crime which there denied, 948, 365, 112 cert. 111 498 U.S. S.Ct. judg- insufficient evidence vindicate its (1990), ... fulfill “[w]e L.Ed.2d 328 do blameworthy. is ment the defendant duty these through our rote incantation of Salamanca, U.S.App. at 300 D.C. principles summary followed affirmance.” Finally, obligation our 990 F.2d review, words, “entirely in other is not Our impartial jury assure ourselves that Salamanca, toothless.” States v. 300 United beyond espe- guilt is find a reasonable doubt 384, 392-93, U.S.App. F.2d D.C. where, case, cially compelling this denied, 637-38, 114 S.Ct. cert. U.S. other counts of the jury, disposing of (1993); Roy v. see also L.Ed.2d indictment, appears squarely reject- to have (D.C. United 652 A.2d probably of the ed one two 1995). theories — contrary, judg On the motion for upon AAF which Jones’ conviction main one— important safeguard “an acquittal ment of is supposed rest. defendant,” sufficiency it “tests him, against avoids the evidence II. him may capriciously find risk that a by firing legally suffi claims guilty though there is no [even] him, Webb, attempt- Crawley by threatening guilt.” cient' of his (D.C.1974) Rice, prevent pursuing ed to *9 six-year join D.C.Code majority holding there was statute of limitations. See 1. I in that 23-113(a)(2) (1996). support Jones’ conviction sufficient evidence justice in of obstruction of connection perceive be- Even if were to variance that the "Dear Butchie” letter. Jones claims proof as to the indictment and the at trial tween prove the letter did not that wrote he agree with when the letter was written —and I specified period the indictment. majority that there was no variance— such written, date the letter howev- The on which was only appropriate reversal would be if Jones er, United See is an element offense. Cir.1981). Nunez, 10, prejudice; done so. (1st demonstrated has not States v. 668 F.2d 11 States, 787, be, claim, 789 Robinson v. United Jones' See is nor could that There no there by prosecution writing the for letter is barred seeing weap- have that Jones also tried to intimidate so how missed Webb Webb report if that Webb would not Rice’s crime on in hand indeed there was one. Jones’ the authorities. If such conduct had been Moreover, not at all sure that Webb was proved, undoubtedly it would have constitut allegedly firing that he heard came from aeeessoryship after ed the fact. Outlaw testimony concluded as fol- Jones. Webb’s (D.C.1993), United 632 A2d lows: denied, cert. 510 U.S. 114 S.Ct. (counsel Jones): BY MR. JOHNSON (1994); 127 L.Ed.2d Butler v. cert. Q say only back You he was the one denied, 470 U.S. S.Ct. person you there at the time. The (1985). record, fairly L.Ed.2d 786 But the allege you you that shot at did viewed, demonstrates, that the AAF convic only you gun person was the saw. You theory. tion cannot be sustained on this somebody know whether else was don’t Moreover, disposition in its of all those standing shooting back dark there charges entirely which were based on Jones’ you, you? do Webb, alleged encounter with right. A You’re squarely rejected government’s version added.) thus (Emphasis Webb admitted place. of what took hand, only weapon that he saw no in Jones’ witness to might very but also the shooter well Rogest Webb. No other witness corrobo- have been someone other than Jones. rated Webb’s assertion that Jones shot at police him. respect majority, sug- no I recovered used shells With due to the from the alleged shooting. gest protection scene that the to a afforded defen- prosecution produced physical guilt proved no requirement dant be theory. government’s beyond illusory of its a reasonable doubt becomes regard ease with if incident at the cut Jones can be convicted on the basis of the testimony must therefore stand or fall on Webb’s testi- of a witness who admits as much mony. Webb has admitted. am astonished that my colleagues proof beyond a detect reason- my opinion, impartial jury no could find him- able doubt where sole witness was beyond doubt, a reasonable on the basis of unsure, self so and where so much is at account, Webb’s that Jones fired at Webb. all, are, dealing stake. We here with This is so because it is obvious from Webb’s lawfully offense which Jones could testimony that the witness himself enter- imprisonment sentenced to for a maximum accuracy tained considerable doubt about the years, term of fifteen and for which he was record, allegation. present On the actually erroneously but serve sentenced Webb’s surely own reservations must trans- years maj. op. fifteen to life. See late into a reasonable doubt as a matter of law. government’s But is not all. The

First, gave Webb admitted that he never saw a claim that Jones shot at Webb rise to weapon explained separate charges: in Jones’ hand. He five assault with intent to (AWIKWA); busy running.” he was “too This acknowl- kill while armed assault with a (ADW, edgment especially light dangerous weapon remarkable as a lesser includ- AWIKWA); testimony possession Webb’s that he fourteen of a was about ed offense of Jones, recognized feet from firearm commission of a crime (PFCV); “Erky-Berk” clothing, carrying pistol Jones as from Jones’ violence without a including yellow (CPWOL); boots. testified license and one count of obstruc- lighting, okay, justice. judge granted it “[t]he because the tion of The trial light light shining acquittal from the as to street Jones’ motion for streetlight pro- jury acquitted cut a little bit.” Unless the and CPWOL. The AWIKWA ADW, PFCV, ground first vided more illumination to the than to Jones of and the obstruc- *10 distinctly justice charge. Jones’ arm at tion of Jones was thus shoulder level—a charges dubious scenario —it which were difficult to understand cleared of all of is. however, that AAF exclusively alleged on his encounter Jones’ conviction should based expla- plausible solely with Webb. There is one of incon- be reversed on account such disposition testimony of of counts: the sistency. my opinion, nation these Webb’s prove, jury’s sat- prosecution replete failed to itself is with reasonable doubt. isfaction, Webb, that that Jones fired at jury’s disposition charges all of The of attempted pistol, had a or that Jones Jones arising provides out of in the cut events assessment, to coerce intimidate Webb at all. my for dramatic corroboration strongly suggests that Jones’ AAF con- majority argues The that even if Jones did not viction was based on those events.4 To pistol, even if not not have he did shoot ignore reality strength this on the of the rule Webb, be af- then the should tolerating exalt a inconsistent verdicts is to anyway, firmed “even similitude of because questionable applicability of doctrine here by appellant such an action in the cut would commodity precious judicial most of over that op. Maj. to suffice conviction.” all: common sense. n. 7. by at 165 I am baffled this assertion. attempted to Webb never claimed that Jones any way by intimidate him in than other III. allegation There was of him. no theory government’s second is that threats, threatening ges-

verbal or even by accessory after fact Jones became an pistol, If if tures. Jones had no he did fleeing quote entirety in its with Rice. possibilities2 not that acknowl- Webb fire — this in its government’s argument point on edged record is barren of —then appeal: brief on against coercive Jones Webb. conduct Appellant Rice to also assisted in order Surely up holding weapon one’s hand with no prevent apprehension his when he ran with it, alone, ae- standing does not constitute him as Rice fled the murder scene. In- cessoryship after the fact murder!3 deed, noted, appellant’s as the trial court out, correctly, majority points quite, analogous fleeing actions were that verdicts inconsistent are tolerated guard of a to those lookout who stands cases, may criminal that a conviction principal eaught. is not ensure evidentiary insufficiency set aside sole for Likewise, by accompanying fled Rice as he ly logically with the because it is inconsistent area, appellant pro- provided additional See, e.g., jury’s verdict on another count. against anyone might tection have Dobyns, v. United States apprehend Rice as he tried tried — denied, -, cert. U.S. escape. effectuate (1997); S.Ct. 137 L.Ed.2d 1060 cf. government authority no has cited Whitaker suggesting, proposition I am one becomes an accesso- My colleagues downgrade possibilities able ”[t]he 2. was not to introduce these op. merely Maj. pistol fragments,” working at 165 n. 7. The however, "theoretical.” or discarded shell adjective, rationally use of dismissive cannot account the relevant this does eminently practical reality alter the acquittals. pistol would The use of an imitation hand, weapon ADW, no it con- saw in Jones' nor does and no have sufficed convict Jones jure away acknowledgment that someone Webb’s weapon required at all render might Nevertheless, other than Jones have fired the shots justice. conduct obstruction of allegedly came in his direction. jury acquitted both of ADW and of Jones justice charge arising from Webb’s obstruction noting acquitted It is worth that the also testimony. justice Jones of obstruction of in connection hypo- that there some Even if assume transpired the events that the cut. If way majority's defense of thetical in which the Webb, pistol, even without a threatened jury's with the dis- the verdict be reconciled justice. too have constituted obstruction charges position all based on Webb's as- conviction, no basis account—and I discern for such majority if asserts Jones’ cut, sumption engag- that we should avoid necessarily believe based events at the is "not —I speculative regarding ing the theo- exercises jury’s disposition inconsistent” with conceivable, retically and should instead confine charges. grounded in other This assertion is not probabilities. reality. points Although, majority as the ourselves reasonable out. *11 ry solely by running case, hand, after the fact present from the In the on the other principal. together. scene with the Rice and from So far as I am Jones fled the scene aware, nothing joint flight was about their authority.5 there is no such There suggest a division of functions such as that statute, Under the AAF government principal between robber lookout. If prove beyond must a reasonable doubt that anything, likely Rice was more than Jones Jones took some action to assist Rice with for, “looking pro- was to have been out” or specific arrest, prevent intent to Rice’s tecting, companion, already for Rice had trial, Butler, punishment. See handgun, used a while the evidence that A.2d 442-43. The record is devoid such Jones was armed dubious at best. true, proof. wrote, judge It is as the trial Apparently recognizing govern- by Rice, running away Jones made analogy inapposite, my ment’s “lookout” is escape himself available to assist Rice to colleagues up have come with a new charac- apprehension in the event that such assis- conduct, namely, terization of Jones’ necessary. showing physical tance was A cuts, through “escort[edJ two into however, availability, cry is a far from indeed Street, K and off into the distance....” proof actually that Jones acted as an accesso- added.) (Emphasis “Escorting” Rice cer- ry. Accessoryship after the fact is tainly accessoryship sounds more like mere state of government mind—the must does, “running fact than with” Rice but show performed that Jones an accessorial evidentiary by void cannot be filled resort prosecution act. presented to creative characterization which has no Rice, away along Jones ran foundation whatever the record. The tes- nothing more.6 timony together that Jones and Rice ran off provided by Dudley, Janice who stated proof There was no that Jones’ conduct that Jones and Rice “ran out of the cut and corresponded this ease to that of a lookout in they bumped guy almost into the who was robbery. hypothetical In the posited case cut, running up into the so I looked there and government, each member of the rob- them, I they saw turned around and ran back bery separate team has a assignment. The through the cut....” principal’s job is to money. take the lookout’s function keep eyes is to open words, together. other the two men left police lest the or other unwanted “intruders” nothing That is all. Just as there is scene, upon come and he must warn the record to the notion that Jones was principal any danger. protection lookout, acting as a so there is no evidence principal apprehension, in other doing any escorting. he was On the words, is the job. essence of the lookout’s noted, contrary, as have Rice not had specific job His intent to do that there- pistol, but had used it to shoot a man to readily Indeed, fore be “escort,” inferred. if the look- espe- death. His for an need intent, out did not have required cially nobody he one whom had seen with a would not be a lookout. weapon,7 illusory. theory majority 5. The Prophet cites warning until after an occasion for a had arisen defendant, provided warning. which the and after Jones had Even alia, principal], inter "followed behind accurately assessing [the look- if the is Jones’ mind, then, ing might hypothetical in all directions aas lookout do.” Id. state of in the words of fifties, Prophet at First, application song 1092-93. has no here. from a musical of the "The Most Fella,” Prophet Happy "you the defendant in go jail was tried as an can't for what abettor, aider and you’re thinking." not as an Second, present fact. the record in the case is 7.According majority, "Appellant might be any barren of information that Jones "looked in presumed weapon to have carried the same do,” might all directions aas lookout he or that cut, thought he had in the brandished anything did at all other than run from the scene to have remained available to scare off elimi- with Rice. might nate he others and Rice encounter is, course, possible It flight.” that if Jones seen a their The use of the words policeman danger, "might presumed "thought or some other source of to have" and assuming betrays speculative would have warned Rice. But that this had brandished” nature true, majority’s weapon. Jones could not become an reliance on the unseen *12 hy- guarding subsequently is thus had arisen. A defendant’s escorting

Jones was or Rice entirely only speculative, quite pothesized engage but also to in accessorial readiness improbable. support a con- in the future will not activities actually oc- viction before such conduct has years Many ago, Blackstone Sir William . curred. provided following illustrations acces- soryship after the fact: Outlaw, for In this reversed court

[F]urnishing principal] with a horse to [the a evidentiary insufficiency conviction of pursuers, money alia, or escape his victuals to for, youn- directing his defendant inter him, or other to brother, a house shelter just ger a man to shot him, open conceal or force and violence to death, proceed to to their aunt’s house. Out- protect rescue or him. to con- So likewise law, in at 412-13. The defendant A.2d vey to instruments to a felon enable him to reproved also his Outlaw brother gaol, gaoler or let break to bribe shot, having the decedent with the first killed escape, accessory him an make a man he in the and remained area felony. police thus investigation, allegedly intimidat- ing potential presence. witnesses with 4 W. BLACKSTONE, COMMENTARIES ON THE 1826), All of held to be as (Chitty. this was insufficient England 37-38 ed. Laws my view, in Outlaw, proof matter in A of law. quoted supra, 632 A.2d at 411. incriminating significantly recent Outlaw was more more and more detailed enumeration State, “joint flight” in AAF than the evi- appears Md.App. in v. terms of McClain (1970): dence in this case. [A]ny given to one to be assistance known apprehension, a felon order to hinder his IY. punishment, trial or is sufficient to make According majority, “Dear But- to the fact; accessory man an as that he provides chie” further evidence letter house,.or concealed him in the shut accessoryship guilt Jones’ of the offense of against pursuers, until should door after the fact. This contention does escape; opportunity

have an or took scrutiny. withstand from him money escape; him to allow or charged supplied money, grand jury him a horse in the indictment or other necessities, in Butchie” was written order to enable him to es- the “Dear letter cape; 1994 and principal prison, was in some time between December 10,1995. jailer May thus this less escape; composed to let him Jones was bribed eight conveyed him than sagacious to enable communication least instruments months, prison escape. possibly year, more after him to break This and than running known the scene of Dunbar’s such like assistance to one to be Steven 9,1994. felon, April a man murder on A letter Jones constitute apparently prison to beat after the fact. wrote order provides himself against the case (quoting Id. 268 A.2d 576-77 Perkins mind, many insight scant as to his state of (2d ed.)). Law at 668 Criminal earlier, leaving months the area when was but, These illustrations are not exclusive with Arthur Rice. striking collectively, they viewed furnish “Dear My colleagues also assert that the skimpiness contrast If consciousness proof, were exam- Butchie” letter reflects Jones’ this record. there jury guilt, of his own and that ple, someone had made effort disagree. legitimately conclude. I cannot apprehend Rice Rice and Jones were flee- so See, e.g., ing, and that had intervened and Mills (citations omitted). (D.C.1991) apprehension, attempted thwarted the then would, course, guilt But of what? It takes have a case. consciousness different stretch, stands, con- however, my opinion, to a considerable As it record shows not) (or trying in the letter might might clude that Jones that Jones have become accessoryship guilt if conceal the fact the occasion after contrary, subject On the matter of fact. clearly Jones’ concern was stated the let- DIAZ, Appellant, Cristino Gomez ter; say Jones wanted a witness to standing “Erik and Arthur [were] across the STATES, Appellee. UNITED *13 street when the [court] start- added.) (Emphasis ed." Jones was thus No. 96-CF-888. obviously trying being charged to avoid Appeals. District of Columbia Court itself, involvement in the murder and he nothing up any wrote about covering Argued March accessorial acts thereafter. July Decided have no doubt that the legitimately prosecuted have Jones for acees-

soryship after the fact on account of his

attempt, letter, in the “Dear Butchie”

“program” testify falsely a witness to regard-

ing Rice’s murderous An AAF activities.

conviction legitimately be on a based “giving

defendant’s false information to the

police in order to suspicion away divert Wayne

the felon.” 2 R. LaFave &Austin W.

Scott, Jr., Substantive Criminal Law 6.9 (1986). Indeed,

at 169 it is not clear to me

how Jones could have mounted credible

defense to aecessoryship charge arising

from the letter. government, however, charged Jones

only justice, with obstruction of and not with fact,

aecessoryship after the for what he

wrote to “Butchie.” In the count in the offense,

indictment alleges which AAF

grand jury charged that Jones was an acces-

sory after the fact to murder on or about 9, 199U,

April long before the “Dear Butchie”

letter was written.

Perhaps guilty Jones was uncharged of an aecessoryship after the fact between

crime— May December 1994 and 1995. As the court Salamanca,

explained in U.S.App .D.C. 392-93, 637-38, however, F.2d it is just sufficiency such a case that the charged

evidence of the offense warrants

“particular scrutiny.” Because, view, my

Jones’ AAF conviction cannot withstand such

scrutiny, I must dissent from its affirmance.