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Bryant & Hagood v. United States, Nos. 12-CF-148 & 12-CF-389 (decided June 19, 2014)
The Players: Washington,
Fisher, Ruiz. Opinion by Senior Judge
Ruiz. Christine Pembroke, Esq., for
Marquet Bryant. PDS for Robert Hagood. Trial judge: Florence Pan.
The Facts: This case
centered around a series of interactions between the defendants and the
occupants of a particular apartment.
Bryant and Hagood were standing with others outside an apartment
building when Jerome Edmonds exited his girlfriend’s apartment and walked past
en route to purchase cigarettes. After
Hagood twice insulted Edmonds, Edmonds confronted him verbally, at which point
Bryant pulled out a revolver and handed it to Hagood. As Edmonds backed up into the apartment, Hagood
tried to push through the door, but the occupants were able to push him out and
shut it. They then heard a couple of
kicks to the door followed by a gunshot; a bullet went through the door and
grazed Edmonds’s ankle. The occupants
called 911, but the call was mislabeled a destruction of property complaint and
not given priority. While the occupants
were calling 911 a second time, Hagood walked through the unlocked front door
and said “What’s up” to Edmonds, at which point Edmonds rushed forward and
pinned him against the wall. Bryant,
meanwhile, stood in the doorway with the revolver. After two other occupants pushed him back
into the hallway, Bryant raised the gun and fired once into the ceiling. Both defendants were charged with and
convicted of attempted first degree burglary while armed, assault with a
dangerous weapon (ADW), and two counts each of possession of a firearm during a
crime of violence (PFCV) related to the attempted burglary and ADW charges;
Hagood was also convicted of malicious destruction of property, but Bryant was
acquitted of that charge.
The bulk of the court’s opinion
centers on the two claims raised by both appellants: (1) a challenge to the trial
court’s failure sua sponte to give a
special unanimity instruction, and (2) a claim that their PFCV convictions
merge. (Bryant also raised several other
claims that the court disposed of quickly at the end of the opinion; we do not
address them here.)
Issue 1: Did the trial court commit clear error in
failing sua sponte to give a special
unanimity instruction (i.e., an instruction that, to find the defendant guilty,
all jurors must be unanimous as to which of the two incidents at the apartment
door he was guilty of)?
Holding 1: Yes. A
special unanimity instruction is required when “the jury could have perceived
that the defendant engaged in more than one criminal act, and thus some jurors
could have returned a conviction premised solely on one factual predicate and
others solely on a different factual predicate” (slip op. 15). In this case, the jury could have reasonably
perceived two separate incidents—indeed, the government characterized the
defendants’ actions as “two burglaries” and “two shootings” in closing
argument—and thus, even without a request from the lawyers, the trial court
should have sua sponte given a
special unanimity instruction to ensure that the jury would not base its
convictions on different factual predicates.
(The court found the error clear but declined to reverse under plain
error review.)
Issue 2: Did the appellants’ PFCV convictions arise
out of the “uninterrupted possession of a single weapon during a single act of
violence,” such that they merge for Fifth Amendment purposes, or were they two
distinct acts that may be punished separately?
Holding 2: Appellants’ PFCV convictions merge. Hagood’s attempted burglary—his initial
attempt to enter the apartment—was immediately followed by his ADW (shooting
through the door). These events
“unfolded in rapid succession,” and Hagood “would not have had the time to
pause to reassess his situation before firing the gun in reaction to having the
door closed on him” (slip op. 32). Likewise,
Bryant’s attempted burglary—his attempt to enter the apartment after Hagood’s
second entrance—was what prompted his ADW (shooting into the ceiling), and “[t]here was no appreciable point at which
Bryant could have reconsidered his actions and yet chosen to inflict a new,
distinct harm—it was all part of providing armed support for Hagood” (slip op.
33).
Of note:
·
The DCCA’s case law on when special unanimity
instructions are required often uses the same test used to determine whether
offenses are distinct for merger purposes—the “fork-in-the-road” or “fresh
impulse” test. This case makes clear,
however, that the analyses are not identical.
The unanimity inquiry, which safeguards the Sixth Amendment jury trial
right and the reasonable doubt standard, “focuses on the jury’s perception of the evidence presented at trial,” whereas the
merger inquiry, which safeguards the Fifth Amendment protection against double
jeopardy, focuses on “the defendant’s
choice of actions at the time of the alleged crime” (slip op. 13). While the “fork-in-the-road” test is a useful
factor in determining whether the jury could have perceived that the defendant
engaged in more than one criminal act (and thus that a special unanimity instruction
is required), “unanimity and merger inquiries must be approached from different
perspectives in light of the different constitutional principles they are meant
to safeguard” (slip op. 14).
·
The government often argues that PFCV merger
applies only where the predicate offenses were “wholly or nearly
simultaneous.” The court in Bryant rejects that argument, explaining
that “the exact time-frame is less important than whether the defendant had an
opportunity during that time to reflect on whether to abandon his criminal
enterprise, but nevertheless chose to invade a new and distinct interest while
armed with the same weapon” (slip op. 31).
Thus, in this case, although the appellants’ respective ADWs were not
simultaneous with their attempted burglaries but followed at least a “momentary
interruption,” the PFCVs attached to them merged because neither appellant
would have had any appreciable moment to pause and reassess his situation. CM
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