Donell Washington v. United States, No. 12-CF-2022 (decided March 5, 2015).
Players: Associate Judges Fisher and Blackburne-Rigsby,
Senior Judge Nebeker. Opinion by Senior
Judge Nebeker. PDS for Mr.
Washington. Trial judge: Russell F. Canan.
Facts: Donell Washington was convicted of first
degree murder while armed, three counts of AWIKWA, and related weapons offenses
arising from the death of Stanley Dawson, who was shot on a playground while
three of his friends were present. Two
of the three friends were also struck by bullets. Two witnesses identified Mr. Washington as
the shooter, although they provided inconsistent testimony about whether the
shooter’s face was covered. After the
shots, nearby resident Andrea Williams saw someone run across the street, not
from the direction of the playground, and try to climb the fence by her house
by putting “his hands on [it.]” She did
not see his face, did not see a weapon, and could not tell whether or not his
face was covered.
MPD evidence technicians swabbed Ms. Williams’s fence for DNA, but the swabs disappeared before they were tested. At trial, Mr. Washington requested a missing evidence instruction, which would have permitted the jury to infer that the swabs were unfavorable to the government. The trial court denied the request.
At the government’s request, the judge gave a “concurrent
intent” instruction. The jury sent a
note asking what the instruction meant when it said the jury “may infer that
the [appellant] intended to kill/injure/harm any other person in the zone of
harm/danger.” The judge answered that if
the jury found that Mr. Washington shot at Mr. Dawson and created a “zone of
danger around [him] with intent to kill, injure, or harm him,” that it could
conclude that he also “intended to kill others in the zone of danger.”
Issue 1: Did the trial court abuse its discretion in
refusing to give a missing evidence instruction about the lost DNA swabs?
Holding 1: No.
The judge did not abuse his “considerable” discretion in refusing to
give a missing evidence instruction, because the swabs were merely “potential
evidence” and there was no way to know whether they would be inculpatory or
exculpatory. Even assuming error in
denying the instruction, it was harmless, where the defense was able to address
the issue in closing, cross-examine the evidence technicians, and call Mr. Williams
as a witness.
Issue 2: Did the trial court abuse its discretion
by providing a concurrent intent instruction that was an inadequate statement
of law, and by failing to give the jury an appropriate clarification in
response to its question?
Holding 2: No.
Where the evidence showed that the appellant fired up to ten shots “at
four people standing in close proximity to one another,” striking three of
them, the concurrent intent instruction was “an adequate statement of the law
and supported by evidence in the record,” and the response to the jury’s
question was sufficient to remedy any confusion.
Of Note:
- On the missing evidence issue, the Court emphasizes that a trial court’s “considerable” discretion in determining whether to give a missing evidence instruction reflects a “recognition that a missing evidence instruction carries with it several inherent dangers.” Slip Op. at 11.
- In concluding that the judge’s response to the jury question about the concurrent intent instruction was sufficient, the Court noted that the response “[o]n its face . . . appeared to be ‘fairly balanced’ and did not ‘single out one aspect of the case,’” and that “the jury did not express continuing confusion after the clarification was issued.” Slip Op. at 18. MW
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