Williams v. United States

MACK, Associate Judge,

dissenting:

I

For the reasons best known to my colleagues (s ee Washington Gas Light Co. v. Public Service Commission, 450 A.2d 1187, 1242 (D.C.1982)), I agree, wholeheartedly, with the majority’s legal analyses treating issues with respect to the admissibility of prior consistent statements and alleged prosecutorial misconduct (as well as the conclusion that the conviction of Leon Johnson should be affirmed). I depart with the majority when it concludes that the trial court, in the circumstances of this case, did not err in giving, over the objection of appellants, an instruction compelling liability for a crime that was the “natural and probable consequence” of a counseled crime.

In the interest of brevity, I will not repeat the facts. I note at the outset, however (a fact that the majority has failed to mention) that appellants were acquitted of first-degree premeditated murder. The felony murder conviction, therefore, is supported, if at all, by the conviction for armed burglary with intent to assault. I also note — and I think this fact significant— that I read the record as confirming that the suggestion to burglarize in order to assault the actual victim, Earl Saunders, was that of appellant Leon Johnson, one of the young men who charged into the apartment house and did the shooting. The decision was made on the street; appellant William Johnson 1 was in an automobile at the time. Appellant Ronald Williams was standing on the street where he presumably heard Leon Johnson’s suggestion; 2 he remained on the street during the burglary without making any comment that would justify a conclusion that he participated in the decision.

II

Against this factual backdrop, the instruction given by the trial judge, in addition to the standard instruction on aiding and abetting, was as follows:

There is no requirement that the aider and abettor have the identical intent of the principal at the time and place. He need not necessarily intend the particular crime committed by the principal. He is liable for any criminal act which in the ordinary course of things, was the natural and probable consequence of the crime that he advised, connived at, or *300 counseled, or instigated, though such consequence may not have been intended by him.

It is this instruction that appellants Ronald Williams and William Johnson, neither of whom entered the apartment house where the murder was committed, and both of whom were acquitted of first-degree murder, challenge as confusing and misleading. 3 I agree.

This instruction said to the jury: defendants Ronald Williams and William Johnson are liable for the armed burglary (and therefore the felony-murder while armed) even if the burglary was not intended by them, so long as it was proved that the burglary was the natural and probable consequence of a predicate crime which they did aid and abet. In other words, the jury was told that in order to convict appellants of armed burglary (and therefore felony-murder while armed) they need not find that appellants intended an entry with intent to commit an assault, as long as that criminal offense was the natural and probable consequence of some crime appellants aided and abetted.

A problem arises with the accomplice instruction in this case, because there is no “crime” that serves as the predicate for an unintended but related burglary. The government, in a “down-to-earth” approach, counters appellants’ argument by suggesting that “the only reasonable interpretation [of all the evidence] is that appellants and their cohorts had undertaken to burglarize the Saunders’ apartment in order to kill them.” However, the challenged instruction told the jury in effect that appellants need not have undertaken to burglarize. Ironically, it is the very reasonableness of the government’s approach that poses a danger to the right of an accused to have his fate decided by jurors pursuant to accurate legal instructions befitting the crimes charged and the evidence adduced. One may certainly argue that the jury here could have possibly concluded (at least as to appellant William Johnson) that the armed burglary (and therefore the felony-murder while armed) was the natural and probable consequence of the coun-selling of the crime of premeditated murder; yet the jury here acquitted appellants of premeditated murder. Because the jury found appellants not guilty as to the crime of premeditated murder, it could have reached the verdict of appellants’ guilt on the armed burglary count (and therefore the felony-murder while armed count) only by improper application of the “natural and probable consequence” language found in the court’s instruction. Moreover, the issue here is not one that can be summarily disposed of by concentrating upon the reality that jurors sometimes do return inconsistent verdicts. See, e.g., Khaalis v. United States, 408 A.2d 313, 342 (D.C.1979), cert. denied, 444 U.S. 1092 , 100 S.Ct. 1059 , 62 L.Ed.2d 781 (1980). The concern here is rather a basic one going to the charging and proof of the elements of two serious felonies. Conviction of the felony murder stands or falls upon the conviction of armed burglary; the quid pro quo for the conviction of the armed burglary in the absence of entry with intent is that the burglary be the natural and probable consequences of a predicate crime. In this case the jury was told it could convict in the absence of intent to burglarize; yet no predicate crime was identified that could form the basis for the natural and probable consequence instruction.

Therefore, no matter how much I may be tempted to paint with the broad brush of the majority, I cannot dismiss the issue by simply suggesting that “William Johnson and Ronald Williams were part of a group of persons arrayed outside Lewis’ residence prepared to kill him.” Because of the trial court’s instruction, we have no way of knowing whether appellants have been convicted of armed burglary (and thus felony murder while armed) because these *301 were the natural and probable consequences of their outside presence or mental disposition. 4 I cannot ignore this possibility when the consequences flowing to appellants represent so high a price. 5 The fifth and sixth amendments guarantee that an aider and abettor, like a principal, have notice and grand jury consideration of the conduct that exposes one to the risk of such dire consequences. See Whalen v. United States, 379 A.2d 1152, 1156-57 (D.C.1977), petition for reh’g denied, 388 A.2d 894 (D.C.1978), rev’d on other grounds, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980). See also Stirone v. United States, 361 U.S. 212, 217 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960).

I would reverse the convictions of appellant William Johnson and Ronald Williams and remand for a new trial.

. The government’s theory was that William Johnson was the mastermind behind the plan "to get" Lewis and Earl Saunders (described by the government as "two well-known neighborhood robbers") because of an unprovoked shooting of William Johnson’s younger brother by Lewis Saunders (while Earl Saunders stood nearby with a sawed-off shotgun). While I have not dealt with the sufficiency of evidence issue, it bears repeating that we are not dealing with a conspiracy charge.

. The government witness who concluded that the four men on the street made the decision to enter the apartment building, subsequently explained that she only heard one of them say “Let’s go see Rock [Earl].” One of the four men testified that it was Leon Johnson who said “Let's get Rock instead.” As to Ronald Williams, the evidence shows little more than guilty knowledge. See United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir.1977).

. This instruction has been described as a platitude, serving no useful purpose. “Its use is an invitation to reversal" since it may in some contexts mislead the jury. Cohen v. United States, 378 F.2d 751, 755 (9th Cir.), cert. denied, 389 U.S. 897 , 88 S.Ct. 217 , 19 L.Ed.2d 215 (1967). The instant case presents such a context.

. I note that the prosecutor argued to the jury that it should convict appellant Williams of first-degree felony murder because the killing was "the natural and probable consequence of everything [he] did_" Thus under the circumstances of this case, we cannot say with any degree of certainty that what the jury could possibly have determined to be the predicate crime instigated by appellants (and which led by natural and probable consequences to the burglary) was even criminal conduct as determined by the legislature. See Chiarella v. United States, 445 U.S. 222 , 237 n. 21, 100 S.Ct. 1108 , 1119 n. 21, 63 L.Ed.2d 348 (1980) (a court "may not uphold a criminal conviction if it is impossible to ascertain whether the defendant has been punished for noncriminal conduct").

. The trial court, obviously troubled by the imposition of sentence but stating that he had no other available option, sentenced Ronald Williams (then twenty-three years old with no criminal record) to a term of 20 years to life on the felony murder count and 5 to 15 years on the burglary count, to run concurrently. The other defendants, under 22 years of age with no criminal records, received sentences under the Youth Corrections Act ( 18 U.S.C. § 5010 (c) (1982)) of imprisonment for nine and seven years.