# In re D.N. > District of Columbia Court of Appeals · May 2, 2013 · 65 A.3d 88 URL: https://www.frixlaw.com/law-library/cases/4967041 ## Case - **Full name:** In re D.N. - **Court:** District of Columbia Court of Appeals - **Decided:** May 2, 2013 - **Citations:** 65 A.3d 88; 2013 D.C. App. LEXIS 248; 2013 WL 1831707 - **Precedential status:** Published - **Opinion:** Dissent by Oberly - **Judges:** Fisher, Oberly, Wagner - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4967041 ## Opinion text OBERLY, Associate Judge, dissenting: Because I do not believe the government satisfied its burden of proving accomplice liability to felony murder, I cannot join the majority’s opinion affirming D.N.’s felony murder conviction. As the majority acknowledges (ante at 93), when the government seeks to prosecute an accomplice to felony murder, it must prove not only an intent to commit the underlying felony and that the killing occurred in the course of perpetrating that felony, as it must prove when it seeks to prosecute principals; it must make an additional showing: that the killing was done “in furtherance of the common design or plan” to commit the underlying felony. Christian v. United States, 394 A.2d 1, 48 (D.C.1978) (internal quotation marks omitted); see also Butler v. United States, 614 A.2d 875, 886 (D.C.1992) (“The requirement that the killing take place ‘in furtherance of the underlying felony (as opposed to ‘during’ or ‘in the course of the underlying felony) applies only to aiders and abettors of the actual killer.”). We have recognized the “in furtherance requirement” as a “limitation on the felony murder liability of an accomplice,” holding that “there is no criminal responsibility on the part of an accomplice if the homicide is a fresh and independent product of the killer’s mind, outside of, or foreign to the common design.” Christian, 394 A.2d at 48 ; see also Butler, 614 A.2d at 886 (“When one of the parties to a felony commits a killing ‘outside the scope of the *98 felonious crime which the parties undertook to commit,’ the aiders and abettors of the felony cannot be convicted of felony murder”) (quoting United States v. Heinlein, 490 F.2d 725, 737 (D.C.Cir.1973)). In Heinlein, 490 F.2d at 733, 737 , the D.C. Circuit reversed the felony murder convictions of two aiders and abettors of a rape (the Walker brothers), holding that the jury should have been instructed that the Walker brothers would not be liable for the murder of the rape victim if the jury found that “Heinlein’s stabbing of [the rape victim, while the Walker brothers held her down] was an unexpected response to his being slapped in the face and was independent of any common purpose to rape.” To convict an accomplice of felony murder, then, the trier of fact must identify a common purpose shared by the accomplice and the principal to commit the underlying felony and then must conclude beyond a reasonable doubt that the killing occurred in furtherance of that common purpose, and not as a “fresh and independent product of the killer’s mind.” Christian, 394 A.2d at 48 . I can find little in the record to support the conclusion beyond a reasonable doubt that the gratuitous armed assault by Palmer and Fat Sean furthered any purpose that D.N. and Palmer shared to rob Robinson. The evidence at trial showed that Robinson died of “major blunt impact injuries” caused by “a piece of concrete.” When they decided to commit the robbery, however, neither D.N. nor Palmer had any weapons on them, and the trial court found that the evidence was insufficient to establish that D.N. ever used any weapons. The primary evidence implicating D.N. came from Hickman, who described the “whoopin' ” as “real basic,” from what D.N. had told him. 1 The evidence supports an inference that the common plan shared by D.N. and Palmer was an unarmed robbery and “whoopin' the ultimate bludgeoning of Robinson with concrete fragments — after the pair had taken all there was to take from Robinson, after Palmer put Robinson in the dumpster, and after a third party unrelated to the robbery joined in while D.N. stood back— strikes me as a departure from this common plan. I cannot agree with the majority’s conclusion that “[t]he arrival of Fat Sean and the use of bricks and concrete fragments ... do not break the relatively seamless chain of events leading to Robinson’s death.” Ante at 94. On the contrary, the arrival of a third person not involved in the robbery who joined Palmer in a vicious beating far exceeded the scope of the common plan to commit an unarmed robbery. It also is significant that when they agreed to commit the robbery, neither D.N. nor Palmer had any weapons. Where the plan to commit a felony does not include the carrying of weapons, it is harder to conclude that the principal’s later use of weapons falls within the scope of the shared purpose. Cf. Perry v. United States, 36 A.3d 799, 814 (D.C.2011) (“[T]o be legally responsible for the principal’s use of a weapon during an offense ... the aider and abettor [must have] had actual knowledge that some type of weapon would be used or ... it [must have been] reasonably foreseeable to the aider and abettor that *99 some type of weapon was required to commit the offense.”) (first and third alterations added) (internal quotation marks omitted). The majority is correct that it does not matter that the robbery was “complete in all but the most technical sense” for purposes of the requirement that the killing have been committed in the course of the felony — if the robbery were complete before the killing, not even Palmer could be charged with felony murder — however, it is evidence that when Palmer and Fat Sean started beating Robinson savagely with concrete fragments it was not to further the robbery but to advance some independent, perverse interest of their own. Although “the homicide itself need not be within the common design,” Heinlein, 490 F.2d at 736 , the act resulting in the homicide must be in furtherance of the common purpose. Here, there is no evidence that the savage armed beating by two adult men, one of whom was not involved in the robbery, furthered the shared purpose to complete the robbery— there was nothing left to take from Robinson and he certainly posed no threat to asportation. Robinson had been rendered defenseless, dragged by Palmer into a dumpster. That Robinson was able to crawl back out does not make him a victim “stubbornly refusing to submit.” Ante at 94. Moreover, there is no evidence, as there was in Lee v. United States, 699 A.2d 373, 386 (D.C.1997), for example, of D.N.’s continued involvement after Palmer placed Robinson in the dumpster; in fact, D.N. was about to walk away when the new attack began. In Johnson v. United States, 671 A.2d 428, 436 (D.C.1995), we upheld the felony murder conviction of an accomplice, finding no error in the instructions to the jury because they “allowed conviction only if the jury found that flight was part of [appellant’s] ‘common effort’ with Johnson, ‘acting together,’ to complete the robbery.” (Emphasis added.) On this record, I do not think the government has proven beyond a reasonable doubt that the killing by Palmer and Fat Sean was part of a common effort between D.N. and Palmer to complete the robbery and not an independent product of the two killers’ minds. 2 *100 In light of “the modern American trend” to limit the “harsh or unjust consequences of the [felony murder] doctrine,” Marshall v. United States, 623 A.2d 551, 559 (D.C.1992) (Ferren, J., dissenting in part and concurring in the result only), it is particularly important to take seriously the distinction we have established between principals and accomplices in this context. 3 It seems particularly unjustified to impose felony murder liability on a juvenile who the evidence suggests did not sign up for an armed robbery that led to a bludgeoning carried out by two adults. Of course, D.N. did agree to commit crimes, and he was convicted for those crimes: robbery, receiving stolen property, felony destruction of property, and conspiracy. But convicting D.N. of felony murder as an accomplice would blur the important distinction between accomplice liability and principal liability in the felony murder context. I therefore respectfully dissent. . The majoi'ity suggests that "real basic” refers not to the "whoopin' ” itself but to Hickman’s description of it. Ante at 91 n. 6. I find my reading of the transcript more natural, given that the answer comes in direct response to the question, “what words did he use to describe the beating?” Regardless, and even assuming that either reading is plausible, my point remains the same: there was little evidence that D.N. took part in the brutal beating. *100 homicide which is in furtherance of the underlying felony or is the natural and probable consequences of acts done in furtherance of the predicate felony.”). . The majority explains that accomplices also are liable for felony murder if the killing is the natural and probable consequence of acts done in the perpetration of the felony. Ante at 94. As the majority acknowledges, our cases do not fully explain the concept of natural and probable consequences in the context of felony murder liability. Surely, it cannot merely "encompass[] the requirement of a 'causal connection between the homicide and the underlying felony,’" as the majority states, ante at 94 (quoting Johnson, 671 A.2d at 433 ), for a causal relationship between the killing and the underlying felony is a requirement for any felony murder prosecution. See Lee, 699 A.2d at 385 (quoting Waller v. United States, 389 A.2d 801, 807 (D.C.1978)). In any event, I do not think the natural and probable consequences language changes the overall requirement that the killing must be done in furtherance of the common purpose to commit the underlying felony. In Christian , the case that established the standard in this jurisdiction for liability of accomplices to felony murder, we held: "The accomplice who aids and abets the commission of a felony is legally responsible as a principal for all acts of another person which are in furtherance of the common purpose, if the act done either is within the scope of that purpose, or is the natural or probable consequence of the act intended.” 394 A.2d at 48 (internal quotation marks omitted). Thus, there is no accomplice liability for an act of the principal that is the natural and probable consequence of the underlying felony if that act is not also in furtherance of the common purpose to commit the underlying felony. See Marshall v. United States, 623 A.2d 551, 562 (D.C.1992) (Ferren, J., dissenting, in part and concurring in the result only); Criminal Jury Instructions for the District of Columbia No. 4.204 cmt. (5th ed. 2011) (noting that the instructions "set forth the rule of accomplice liability for a . Some of our cases after Christian have failed to adequately apply this distinction. In Prophet v. United States, 602 A.2d 1087, 1095 (D.C.1992), for example, this court held that the law treats accomplices the same as principals for purposes of imposing felony murder liability. Under Christian , however, this is not correct. The authoring judge of Prophet later recognized as much. See Marshall, 623 A.2d at 563 (Ferren, J.). In West v. United States, 499 A.2d 860 , (D.C.1985), although the court cited Christian for the proposition that an accomplice is liable for the acts of the principal that are in furtherance of the common purpose, it did not apply this standard and went on to affirm the conviction of an accomplice because the government had shown that the killing was done while perpetrating a felony and, once that is shown, " 'no distinction is made between principals and aiders and abettors for purposes of felony murder liability.’ ” Id. at 866 (alterations omitted) (quoting Waller, 389 A.2d at 807 ). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4967041. Public record. Not legal advice.