Sequarn TIBBS, Appellant, v. UNITED STATES, Appellee.
No. 13-CF-1425.
District of Columbia Court of Appeals.
Submitted Nov. 4, 2014. Decided Jan. 15, 2015.
106 A.3d 1080
Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman and Deborah Sines, Assistant United States Attorneys, and Susan M. Simpson, Special Assistant United States Attorney, were on the brief for appellee.
Before THOMPSON, Associate Judge, and NEWMAN and FERREN, Senior Judges.
THOMPSON, Associate Judge:
On May 6, 2013, along with two co-defendants, appellant Sequarn Tibbs pled guilty to assault with a dangerous weapon (“ADW“), conspiracy to commit ADW, two counts of voluntary manslaughter, and carrying a pistol without a license.1 Several months later, at the commencement of appellant‘s (twice re-scheduled) sentencing hearing, appellant‘s counsel sought a week‘s continuance in order to determine whether to file a written motion to withdraw appellant‘s plea. After the court denied the request for a continuance, appellant‘s counsel orally moved to withdraw the plea, arguing that appellant had acted in self-defense and had so claimed throughout his statements to the court during the Rule 11 plea colloquy. Counsel asserted that there was “no factual basis for [the] plea.” The court denied the motion to withdraw and thereafter sentenced appellant to twenty-five years in prison.
This timely appeal followed. Appellant now argues that the trial court abused its
I. Background
A. The Government‘s Proffer
Appellant and his two co-defendants entered their guilty pleas on May 6, 2013. During the Super. Ct. Crim. R. 11 colloquy that preceded entry of their pleas, the court instructed the defendants to “listen carefully” to the government‘s account of what its evidence would have been at trial, because the court would “have some more questions of [the defendants] about what the [g]overnment has said.” The prosecutor then proffered that, had the case gone to trial, the government would have proven the following facts beyond a reasonable doubt.
Late on October 12, 2009, co-defendants Antonio Barnes and Earl Jackson went with unindicted co-conspirators Malique Wilkins, Paul Riggins, and Daquan Tibbs to the Clay Terrace neighborhood, where Jackson‘s mother, Katina Wilkins, lived. The group, which was associated with the 37th Place, S.E., neighborhood, suspected that Ms. Wilkins‘s home had been burglarized by Clay Terrace residents. The group, armed with a .45 caliber semi-automatic pistol, a .40 caliber pistol, and a 9 millimeter pistol, intended to retrieve, “with force if necessary,” any objects that had been taken from Ms. Wilkins‘s house. Once they arrived at the house, they discovered that a .38 caliber revolver was missing, leading some members of the group to verbally confront nearby Clay Terrace residents and demand return of the revolver. The 37th Place group also demanded a payment of money, although no money had been taken.
Appellant Tibbs joined the 37th Place group at Ms. Wilkins‘s home early on October 13, 2009, the group having spent the night there while waiting for the gun‘s return. Appellant Tibbs was Daquan Tibbs’ twin brother, and the group solicited his presence at the Clay Terrace home “so that there would be more members of the 37th Place ... group on hand.”
At some point during the morning of October 13th, an older Clay Terrace resident returned the .38 caliber revolver. The 37th Place group then remained at Ms. Wilkins‘s home until almost 4 PM, leaving through the back door upon noticing that Ms. Wilkins had returned home. The prosecutor proffered that “[i]nstead of leaving the neighborhood, Malique Wilkins and [appellant] Tibbs went into a courtyard,” where a number of Clay Terrace residents were present. The rest of the 37th Place group followed them, and Malique Wilkins and Tibbs each began talking with a Clay Terrace resident. At some point, Malique Wilkins yelled, “They got their guns out,” and appellant fired his weapon.2 A gun battle between the Clay Terrace and 37th Place groups ensued, in which two people died3 and three were wounded.
After the government‘s proffer, the court said that it would not ask any of the defendants, “[I]s everything the [government said correct[?]” Rather, the court asked each defendant about his “participation as far as the shootout is concerned[.]” In their responses, appellant and his co-defendants contradicted a key part of the government‘s proffer.
Co-defendant Barnes, when asked by the court whether he knew something would happen when he walked into the courtyard that day, said, “No,” and asserted that prior to entering the courtyard where the shooting subsequently occurred, the 37th Place group had been “headed back to our [own] neighborhood,” “going home,” when “someone called Malique [Wilkins] to the courtyard.” Co-defendant Jackson, who at first told the court he would not be pleading guilty,4 similarly asserted that someone in the courtyard called out to Wilkins, causing the group to walk inside the courtyard.
When the court asked appellant about his participation and involvement, he affirmed that he arrived at Ms. Jackson‘s home late in the morning on October 13, 2009, in time to see the .38 caliber revolver returned. Appellant asserted that, at the time the 37th Place group left Ms. Wilkins‘s house, they “[were] going home.” However, as they were “going to the bus stop, one of the Clay Terrace boys called Malique to the courtyard.” Appellant followed him “to make sure he was all right[.]” While the two were talking with some of the Clay Terrace residents, someone said, “[T]hey got their guns out,” causing appellant to pull out his as well. Next, appellant explained, “[O]ne of them start pointing a gun at me. I start firing.” Appellant‘s counsel added,
There was a part ... when Mr. Tibbs had his gun out and the gentleman from Clay Terrace had their [sic] gun out, [a Clay Terrace resident] was telling both of them to calm down, nothing was going to happen. At that point, the Clay Terrace guy raised his gun towards Mr. Tibbs. [The Clay Terrace resident] backed away, giving the guy a clear shot. At that point, Mr. Tibbs fired the first shots.
Appellant agreed with his counsel‘s description of the incident.5
C. The Motion to Withdraw the Guilty Plea
At the commencement of the sentencing hearing on December 12, 2013,6 appellant‘s counsel opened by requesting a continuance so that he could have more time to determine whether appellant should file a motion to withdraw his guilty plea. Co-defendant Jackson had just filed his own motion to withdraw his plea, and the prosecutor accused defense counsel of engaging in a “stalling tactic” so that appellant could wait to file until he knew the outcome of Jackson‘s motion hearing. Although defense counsel denied this accusation, the court rejected his request for a continuance. Counsel then orally moved,
II. Analysis
A defendant seeking to withdraw his or her guilty plea under
As described above, in arguing that appellant should be permitted to withdraw his guilty plea, counsel asserted that there was a defect in the Rule 11 proceeding, i.e., that there was no factual basis for appellant‘s plea since, in his statements to the court, appellant described an act of self-defense. Even if the court was unpersuaded that there had been a defect in the plea proceeding, the court nonetheless was required to “consider the fair and just factors in order to determine whether that alternative standard demand[ed] that the withdrawal motion be granted.” Gooding, 529 A.2d at 306. The trial court explicitly addressed two of the factors. First, it repeatedly questioned appellant about whether he was satisfied with his counsel, until the court itself was satisfied that appellant was not asserting that he had
We cannot say that the court‘s omission of that consideration in this case was harmless. The government argues that appellant “had no legitimate claim to the defense of self-defense, since he ... voluntarily placed himself in a position which he could reasonably expect would result in violence.” Howard v. United States, 656 A.2d 1106, 1111 (D.C. 1995) (quoting Nowlin v. United States, 382 A.2d 9, 14 n. 7 (D.C. 1978)); see also Mitchell v. United States, 399 A.2d 866, 869 (D.C. 1979) (finding no cognizable claim of self-defense where a defendant “placed himself in a position reasonably calculated to provoke trouble“). However, our case law invoking this rule has applied it to situations in which defendants had a violent or threatening encounter with specific individuals and then shortly thereafter sought out those same individuals again. See, e.g., Sams v. United States, 721 A.2d 945, 949-50, 953 (D.C. 1998) (holding defendant could not assert self-defense when he claimed to have returned to engage “amicably” with a man who had just threatened him with a knife); Howard, 656 A.2d at 1109, 1111 (holding that where, after a confrontation, the defendants left, “armed themselves with a considerable amount of firepower,” and drove to the adversary‘s house, “even if [someone there] made the first move for a gun once [the defendants] had arrived, armed, ... the degree of initiative [defendants] had taken in creating the confrontation precluded a claim of self-defense“); Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (holding that a defendant cannot successfully claim self-defense when “he left an apparently safe haven to arm himself and return to the scene[]” (internal quotation marks omitted)); Mitchell, 399 A.2d at 869 (holding defendant could not assert self-defense after first verbally fighting with the victim and then following the victim outside onto a public street). Here, even taking into account that appellant was charged with conspiracy to commit ADW and thus could be held vicariously liable for the conduct of the other members of the 37th Place group, we think it at least arguable that the co-defendants’ conduct on October 12-13 was quite different from the conduct described in the foregoing cases. On October 12, the 37th Place group asked some Clay Terrace residents to return the revolver, and there was no indication in the government‘s proffer that this interaction was violent or threatening. In addition, the record, insofar as it was developed at the plea proceeding and sentencing hearing, does not disclose which Clay Terrace
In short, in his statements during the Rule 11 proceeding, appellant gave an account that, at least without further inquiry, was not consistent with the offense of voluntary manslaughter to which he pled guilty.9 We have cautioned “the trial court[ ] that when faced with a presentencing request for withdrawal of a guilty plea, full inquiry should be made beyond the confines of the Rule 11 hearing.” Gooding, 529 A.2d at 306 (internal quotation marks omitted). The court here did not make a full inquiry to ferret out additional details during the plea proceeding to determine whether appellant could avail himself of a self-defense claim. Nor did the court do so after appellant‘s counsel had moved to withdraw appellant‘s plea and had explained the inconsistencies between appellant‘s plea and his account of what led up to the shooting. In addition, the court denied the motion with a cursory “insufficient” ruling that did not reveal what consideration, if any, the court gave to the self-defense claim.
Presented with this record, we are unable to affirm the denial of appellant‘s motion to withdraw his plea.10 We therefore remand for the trial court to consider whether appellant has a valid claim of self-defense, to reconsider whether appellant should be permitted to withdraw his plea, and, if the court again declines to permit withdrawal of the plea, to explain the basis for its ruling. Cf. Johnson v. United States, 597 A.2d 917, 919-20 (D.C. 1991) (remanding case for further consideration by the trial court where defendant had sought to withdraw plea on the morning of sentencing, 16 months after entering the plea, and where the court gave short shrift to a claim of self-defense).
So ordered.