“Is that a gun in your pocket, or are you just happy to see me?”

Michael A. Hartley v. United States, No. 13-CF-653 (decided May 14, 2015).

Players: Chief Judge Washington, Associate Judges Blackburne-Rigsby and Easterly.  Opinion by Chief Judge Washington.  William R. Cowden for Mr. Hartley.  Trial Judge: J. Michael Ryan.

Facts:  On a December afternoon at the Rhode Island Metro station, Mr. Hartley attempted to rob James Galloway-Reed of his cell phone.  After verbal threats failed to convince Mr. Galloway-Reed to surrender his phone, Mr. Hartley placed his hand in his pocket and stated, “this isn’t a joke, I have a gun.”  Unfortunately for Mr. Hartley, Mr. Galloway-Reed did not believe him and began to walk away.  Mr. Hartley followed him to an underpass across the street and began to “physically assault” him.  A bystander called the police, who arrived and apprehended Mr. Hartley at the scene.  No gun was recovered from Mr. Hartley’s person or the surrounding area. 

Mr. Galloway-Reed suffered “minor cuts to his face, a black eye, and swelling.”

Issue 1:  “[W]hether placing one’s hand in one’s pocket and pointing it at someone while verbally threatening to shoot them if they do not comply with one’s demand is sufficient evidence to satisfy the District’s while armed enhancement statute.”

Holding:  No, given these facts.  The Court distinguishes an earlier case, Smith v. United States, 777 A.2d 801 (D.C. 2001), in which the Court found sufficient evidence that the defendant was armed where he had robbed a restaurant with his hand in his pocket, asserting that he had a gun, and was not apprehended on the scene.  Smith is distinguished based on the facts that (a) Mr. Galloway-Reed testified that he did not believe Mr. Hartley had a gun, and (b) Mr. Hartley was immediately apprehended and no gun was found on his person or nearby.  Thus, there was no basis for the jury to infer that Mr. Hartley had a firearm.  

In a footnote, the court also distinguished this case from those in which a witness perceives a physical manifestation of a weapon, imitation or otherwise, that could reasonably be mistaken for a firearm at the time that the crime was committed.

Issue 2/ Holding:  The government conceded that the evidence was insufficient to support Mr. Hartley’s conviction for felony assault because Mr. Galloway-Reed did not suffer significant bodily injury.  CP

Read full opinion here.