Parker, McCray, and Fortson v. United StatesParker, McCray, and Fortson v. United States
Appeals from the Superior Court of the District of Columbia (CF2-12342-10, CF1-4749-11, CF1-4729-11)
(Argued January 13, 2021* Decided July 22, 2021)
Peter H. Meyers for appellant Parker.
David H. Reiter for appellant McCray.
William R. Cowden for appellant Fortson.
David P. Saybolt, Assistant United States Attorney, with whom Jesse K. Liu, United States Attorney, Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Laura Bach, and Silvia Gonzalez Roman, Assistant United States Attorneys, were on the briefs, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge, and RUIZ, Senior Judge.
We conclude that appellants’ Fleming challenge to their convictions is not properly before us at this time, because appellants have not shown exceptional circumstances excusing their failure to raise that challenge in their direct appeals. Accordingly, appellants first must bring their
I.
In Fleming, this court sitting en banc considered a challenge to the causation instruction regarding a defendant‘s potential liability for a homicide committed in an “urban gun battle.” The instruction informed the jury that:
[A] defendant should be deemed to have caused [the victim‘s] death if (1) the defendant was armed and prepared to engage in a gun battle; (2) the defendant in fact engaged in a gun battle; (3) the defendant‘s conduct was a substantial factor in the death of [the victim]; (4) it was reasonably foreseeable that death or serious bodily injury could occur as a result of the defendant‘s conduct during the gun battle; and (5) the defendant did not act in self-defense.4
This court had explicitly approved this causation instruction in Roy v. United States.5 But sitting en banc in Fleming, we overruled Roy and held this instruction inadequate because it did not convey to the jury that a defendant normally “cannot be held to have personally caused a death unless an action by the defendant is a but-for cause of the death, i.e., unless it is true that in the absence of the defendant‘s action the death would not have occurred.”6 Requiring the defendant‘s conduct merely to have been “a substantial factor” in the victim‘s death “is not remotely equivalent,” we said, to the requirement of but-for causation.7
The jury at appellants’ trial received the causation instruction subsequently held defective in Fleming. Appellants now argue that the instructional error requires that their manslaughter convictions be vacated. In opposition, the government argues that this claim of error at trial is not properly before us, because appellants did not present it on direct appeal of their convictions in McCray I and cannot demonstrate exceptional circumstances excusing that failure.8 We agree with the government.
“It is a general principle of appellate practice that ‘where an argument could have been raised on an initial appeal, it is inappropriate to consider the argument on a second appeal following remand.‘”9 Failure to make the argument in the initial appeal amounts to a waiver. This
Appellants argue that they objected to the urban gun battle instruction in their direct appeals, and that they are renewing those objections in what is now merely a continuation of those direct appeals. Both parts of this argument are inaccurate.
In their initial appeals of their convictions, appellants did not object to the instruction on the Fleming ground that it misstated the causation requirement. Rather, appellants mainly argued that it was error to give the urban gun battle instruction in combination with an instruction on aiding and abetting, and that the instructions “constituted an improper constructive amendment” of the indictment.12 McCray I rejected those entirely different contentions. And while Mr. Fortson complained in his brief on direct appeal that the urban gun battle instruction allowed the jury to convict him without finding he had fired the fatal shot, that was a complaint about the main effect and purpose of the instruction, not an argument for its invalidity. This objection too was substantively different from an argument that the instruction improperly dispensed with the requirement of but-for causation in favor of a substantial factor test. In fact, Fleming confirms that a defendant who did not fire the fatal bullet may be convicted as a but-for cause of the victim‘s death if his actions instigated the shooting, by another, that led to the victim‘s death.13
Appellants also are mistaken in arguing that McCray I‘s remand to the trial court did not end their direct appeals, and that their current appeals from the trial court‘s rulings on remand should be viewed as a continuation of their direct appeals. As this court explained in Bell v. United States,14 there are two types of remand. On “a record remand, this court retains jurisdiction over the case . . . [but] the record is returned to the trial court . . . to make additional findings, to hear further testimony, or to explain a ruling. The record is then returned to this court for decision.”15 In contrast, a case remand
McCray I expressly ordered a “case” remand, not a record remand.17 Our opinion did not direct that the record be returned to us after the proceedings on remand; it specified that, after holding a hearing, the trial court itself should “enter an order” determining the outstanding “mental disabilities issue” and whether that issue entitled appellants to a new trial.18 It follows that we are dealing now with “a new appeal, separate from the [direct] appeal that was terminated when the case was remanded.”19
That McCray I ordered a case remand also explains why this case is not in the same posture as Fleming when the en banc court decided it could hear a challenge to the urban gun battle instruction that had not been presented in the initial appeal heard by a division of the court. When the en banc court considered the claim in Fleming, there had been no intervening case remand; the case still was on direct appeal in this court.
In sum, the present appeals are not a continuation of appellants’ initial direct appeals in this court. McCray I terminated appellants’ direct appeals. The Superior Court proceedings on remand resolved a collateral attack by appellants on their convictions. Appellants were, of course, allowed to appeal the judge‘s adverse rulings against them in those collateral proceedings (the rulings on their Brady and witness-confrontation claims, the only claims before the judge). But that did not entitle appellants to include in their appeal a separate claim (of instructional error at trial), which they never presented on remand and on which the remand judge never ruled. This court repeatedly has held that, in an appeal from the denial of a collateral motion to set aside a criminal conviction, we will not consider claims the movant did not present in the proceedings below.20
Thus, we must conclude that appellants waived their current claims of instructional error at their trial. The question is whether there are exceptional circumstances present here raising a concern that injustice might result if this court does not exercise its discretion to excuse the waiver. Courts have recognized that an intervening change in the law may constitute such an exceptional circumstance, depending on the nature and significance of the change.21 This is a pertinent factor, because this court rendered its en banc opinion in Fleming in January 2020, well after it decided McCray I in 2016, and after the proceedings on remand from that case. While appellants could have urged this court to overrule Roy in their direct appeals (just as Mr. Fleming ultimately did), we would not say that appellants should have anticipated the holding of Fleming and done so.22 Nevertheless, we conclude that waiving
First, appellants have not argued that Fleming created an exceptional circumstance excusing their failure to challenge the urban gun battle instruction on causation grounds in their direct appeals. Indeed, despite the fact that the government challenged appellants to show exceptional circumstances sufficient to overcome the waiver and allow them to pursue their Fleming argument in these post-remand appeals, appellants have not attempted to do so. Instead, in response to the government‘s invocation of waiver, appellants have advanced only the arguments we rejected above—that they did object to the urban gun battle instruction in their direct appeals, and that the present appeals are continuations of their direct appeals. As a general matter, this court will not substitute its own reasoning on a point that a party has failed to address.23
Second, it is difficult to see why not exercising our discretion would work an injustice in this case, as appellants have not even tried to show any likelihood that a jury instruction comforming with Fleming would have resulted in their acquittals of manslaughter or otherwise altered the outcome of their trial in their favor. Instead, appellants have insisted the burden is on the government to show that the instructional error was harmless beyond a reasonable doubt. This contention does not withstand scrutiny, and not only because it mistakenly presupposes these appeals to be continuations of the direct appeals rather than collateral challenges. As we discuss below, a defendant must make a showing of prejudice to raise a new claim in a collateral challenge to a conviction after a direct appeal has concluded. But the government would not have borne the burden of showing harmlessness in this case even if appellants were making a Fleming claim of instructional error in their direct appeals—had they done so, the claim would be subject to the strictures of plain error review on account of appellants’ failure to raise it at trial. Under plain error review, the government does not have the burden to disprove prejudice. Rather, it is on appellants to show prejudice affecting their substantial rights, i.e., in cases like this, a reasonable probability of a more favorable outcome if the jury had been instructed properly.24 As appellants have not made,
The D.C. Circuit‘s recent decision in United States v. Flores is instructive here.25 Mr. Flores was a member of a hit squad that attacked two ICE special agents in Mexico City, killing one and seriously wounding the other.26 After Mr. Flores entered a guilty plea to reduced charges that included accessory to murder and attempted murder in violation of
Acknowledging the “general” rule that “an appellant who fails to raise an available issue in an initial appeal may not raise that claim in a second appeal after remand because such claims are forfeited,”33 the D.C. Circuit (with one judge dissenting) nonetheless granted Mr. Flores the vacatur he sought. The majority opinion perceived Garcia Sota to be “an intervening change in the law,” making it “now plain that courts in this circuit lack the power to convict and punish [Mr.] Flores under Section 1114 for extraterritorial conduct.”34 This constituted an exceptional circumstance justifying the court‘s discretionary consideration of an issue that Mr. Flores could have raised in his initial appeal, the court reasoned, because “injustice might otherwise result if [Mr.] Flores continues to be punished for conduct that does not constitute a crime pursuant to the law under which he was convicted.”35
But that is not this case. Fleming did not confirm that the Superior Court “lack[ed] the power to punish and convict” appellants for manslaughter, or that the evidence at their trial was insufficient as a matter of law to support their convictions. Fleming simply held that one of the instructions given at appellants’ trial was erroneous. Without having some sense of whether and how the instructional error might have prejudiced appellants—who were acquitted of murder but found guilty of manslaughter as a lesser-included offense after a lengthy proceeding involving over 60 witnesses and 500 exhibits36—we
Third, appellants are not without a potential remedy if this court declines to address their Fleming claim in the present appeals from the decision of the Superior Court on remand. Appellants may pursue their Fleming claim in Superior Court via the established route of collateral attacks on their convictions pursuant to
For the foregoing reasons, we conclude that appellants’ Fleming challenges to their manslaughter convictions are not properly before us in these appeals, and we decline to address those challenges.
II.
Appellants contend that the trial court erred on remand in denying their post-trial Brady claim without an evidentiary hearing. The claim relates to an audio recording of a 911 call made by a government witness named Shunedia Rajah. Ms. Rajah testified at trial that she saw and heard appellant Parker shooting. In her 911 call, however, when asked by the emergency dispatcher if she “s[aw] the person who was shooting[,]” Ms. Rajah responded that she did not. Although the government turned the recording of Ms. Rajah‘s 911 call over to the defense prior to trial, as an attachment to an email to defense counsel, appellants did not make use of it to cross-examine her. They subsequently claimed that the government violated Brady by failing to disclose the 911 call in time for them to appreciate its significance and make use of it at trial.
The parties addressed this claim in the proceedings below through written pleadings and oral argument. Ruling from the bench, the court stated it “d[id] n[o]t believe [an evidentiary] hearing [was] necessary . . . in view of the representations [it
An evidentiary hearing on a Brady claim is not required when the defendant fails to proffer evidence that the government suppressed material, exculpatory information in its possession.39 We will uphold the trial court‘s decision to deny a Brady motion without an evidentiary hearing where “under no circumstances could the petitioner establish facts warranting relief.”40 Claims that consist of “(1) vague and conclusory allegations, (2) palpably incredible claims, and (3) assertions that would not merit relief even if true” do not warrant a hearing.41
Here, the trial court did not err in deciding that appellants failed to proffer evidence sufficient to require an evidentiary hearing on their Brady claims. In their pleadings, appellants charged that the government had violated its Brady obligations by waiting until the eve of trial to send the 911 recording to defense counsel in a mix of “several additional emails.”42 In oral argument before the trial court, however, appellants’ counsel reframed their objection. Counsel asserted that the disclosure was not untimely, but that it had occurred as part of a “document dump of hundreds of different materials,” rendering the email containing the 911 call a “needle in the haystack” that was too difficult for the defense attorneys to find in time to use. Specifically, defense counsel stated:
[M]y argument is not, Your Honor, that they didn‘t have enough time to deal with it, which is what some of the other cases have dealt with; that is, the government gives partial or limited disclosure too late for the defense to effectively use it, that is not the claim I‘m making here. My claim is it‘s a document dump, Your Honor. It‘s a needle in the haystack that none of these four lawyers were able to discover that it even had been given to them.”
Nothing in the record, however, supports the claim that the 911 call was a “needle” in a documentary “haystack” not provided until shortly before trial. Appellants proffered only that “several” messages arrived on the eve of trial. This hardly amounts to a document dump. The email with the 911 call was entitled “Audio File attached,” it contained only one attachment (the 911 recording), and it specifically stated “[a]ttached is an audio file of a 911 call made by witness Shunedia Rajah.” This indicates that the 911 call, contrary to appellants’ unsupported assertion, was not buried in such a manner that appellants’ counsel could not have found it in the twenty-nine days preceding Ms. Rajah‘s testimony. On these facts, the government did not suppress the 911 call or impair appellants’ ability to make use of it at trial.
Having failed to proffer facts warranting relief, appellants also failed to indicate to the trial court, either in pleadings or during oral argument, what purpose an evidentiary hearing would serve. At the oral
Thus, we hold that the trial court did not err in finding that appellants failed to proffer evidence sufficient to warrant a hearing on their Brady claim.43
III.
A.
At trial, the government presented testimony from a witness named Curtis Faison. Mr. Faison originally was a co-defendant with appellants, before he entered a guilty plea and agreed to testify for the government.44 In reviewing Mr. Faison‘s juvenile medical records (to which the defense had been given access), appellants’ defense counsel learned he once had been diagnosed with bipolar disorder.45 On that basis, appellants requested that the trial court allow a defense expert to evaluate Mr. Faison “to determine the impact of mental illness on Mr. Faison‘s credibility.”46 The trial court refused, concluding that an outdated medical report did not provide sufficient reason to delay the then ongoing trial proceedings.47 When appellants challenged this ruling on appeal, this court in McCray I reversed and remanded “solely to provide these appellants with an opportunity to show at a hearing and through expert opinion whether at the time of his trial testimony, Mr. Faison‘s mental disabilities seriously impacted his credibility.”48 If the trial court found that to be so, we held, it would then need to “determine whether it can say with fair assurance that Mr. Faison‘s testimony did not sway the outcome of the verdicts against [appellants].”49
On remand, appellants and the government relied on the written reports and testimony of expert witnesses who had examined Mr. Faison, reviewed his medical records, and come to conclusions about his mental health status at the time of trial. Although this court remanded on the understanding Mr. Faison might have been suffering from a bipolar disorder that impaired his testimony, neither expert witness found that to be the case.
The government‘s expert, Dr. Patterson, testified that Mr. Faison was not suffering from symptoms of bipolar disorder, clinical anxiety, or depression when he testified at trial. Dr. Patterson diagnosed Mr. Faison with Antisocial Personality Disorder (“ASPD“). He testified that ASPD is not equivalent to a mental illness or disability, and he did not believe it affected Mr. Faison‘s credibility at trial, i.e., his ability or willingness to testify truthfully.
Appellants’ expert, Dr. Gupta, agreed with Dr. Patterson that Mr. Faison‘s bipolar disorder was inactive at the time of trial; she opined, however, that Mr. Faison suffered from depression and anxiety that affected his trial testimony. Although she agreed with Mr. Faison‘s ASPD diagnosis,
In its oral ruling, the trial court “credited and gave great weight to the reports and testimony of Dr. Patterson,” but did not credit Dr. Gupta‘s opinion, finding it to be “conclusory” and not supported by “persuasive analysis.” The court concluded that Mr. Faison‘s credibility was not seriously impaired by mental disability or mental illness. It therefore found it unnecessary to decide whether his testimony swayed the jury‘s verdict.
B.
Where, as here, a trial judge “presided over [a] factfinding hearing and was able to observe and assess the demeanor of the witnesses,” we take care to avoid “usurp[ing] the prerogative of the judge, as the trier of fact, to determine credibility and weigh the evidence.”50 We must uphold the trial court‘s determination to credit Dr. Patterson, and the court‘s consequent finding that Mr. Faison‘s mental disabilities did not seriously affect his testimony at trial, unless those determinations are clearly erroneous or devoid of support in the evidence.51
C.
This court has emphasized that “[o]ne‘s psychiatric history is an area of great personal privacy which can only be invaded in cross-examination when required in the interest of justice.”52 Although expert evidence concerning a witness‘s mental health history may be relevant to credibility under some circumstances, its “use . . . for impeachment is greatly disfavored and is allowed only where it is shown that the evidence casts substantial doubt on the witness’ capacity to comprehend and relate the truth of pertinent events.”53 Admitting such evidence when it has not been shown to have a serious impact on credibility is “manifestly unfair and unnecessarily demeaning of the witness,” and risks “introduc[ing] . . . a collateral issue which would confuse the jury....”54 We have approved the exclusion of expert testimony concerning a witness‘s mental health that “would have been of only ‘marginal relevance’ to the witness‘s credibility.”55
We are not persuaded that the trial court clearly erred in finding that appellants did not make that showing. Appellants have not provided any reason to conclude that the trial court erred in crediting Dr. Patterson‘s testimony over that of Dr. Gupta. We defer to that credibility determination.58 And Dr. Patterson‘s hearing testimony plainly supported the trial court‘s conclusion that Mr. Faison‘s ASPD did not have a serious impact on his ability or willingness to testify truthfully.
We express no opinion on whether an ASPD diagnosis can ever have a sufficiently serious impact on a witness‘s credibility such that expert evidence on that witness‘s mental condition would be admissible at trial. Dr. Patterson conceded that possibility. We hold only that the evidence in this case supports the trial court‘s finding that ASPD did not have such an impact on Mr. Faison.
IV.
For the foregoing reasons, we affirm the judgment of the Superior Court.
Notes
Id. at 507-08 (citations and footnote omitted).In this jurisdiction we have held findings of homicide liability permissible where: (1) a defendant‘s actions contribute substantially to or are a substantial factor in a fatal injury; and (2) the death is a reasonable foreseeable consequence of the defendant‘s actions. We have defined substantial cause as that conduct which a reasonable person would regard as having produced the fatal effect. Thus, we hold defendants criminally accountable for, “all harms that are reasonably foreseeable consequences of his or her actions.”