Criminal Law Blog

The DCCA’s Latest Conspiracy Theory: Liability Imposed Based on Unsolicited, Unheeded Advice about How to Commit the Crime

In re T.M. (decided March 16, 2017)

Players: Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Chief Judge Washington.  Partial dissent by Judge Beckwith.  PDS for T.M.  Trial Judge: Florence Pan.

Facts: T.M. was charged and tried on a 22-count indictment in relation to the August 2013 shooting of seventeen-year-old J.W.  The evidence showed that T.M. and a group of more than ten approached J.W. and four others, who were smoking marijuana in an alley behind a high school after a football game.  Three from J.W.’s group identified T.M. as a fellow student who had been in a physical altercation with J.W. the year before.  When J.W.’s group started walking out of the alley toward a nearby Safeway, T.M.’s group followed.  One person from J.W.’s group testified that T.M. was pointing a gun in their direction but slightly downward, toward the ground.  This witness and one other testified that they heard an unidentified male state, “don’t do it in the light” or “if you’re going to shoot it, get out of the light.”  As J.W.’s group crossed an intersection, they heard a single gunshot and saw J.W. fall.  A bullet penetrated both of her legs.  An ambulance transported J.W. to a hospital where she was treated for a broken right leg.  Following a bench trial, the trial court adjudicated T.M. delinquent for several offenses, including carrying a pistol in violation of now-repealed D.C. Code § 22-4504(a) (2013) and conspiracy to commit murder or assault with a dangerous weapon.

Issue 1: Did the evidence presented prove beyond a reasonable doubt that T.M. conspired to commit murder or assault with a dangerous weapon?

Holding 1:
Yes.  The evidence showed that T.M. arrived in an alley with a large group, waited for J.W. and her friends, and promptly followed them.  The evidence also showed that T.M. was openly carrying a weapon when she was seen among the group of teenagers and at least one – the unidentified male – followed and advised her on how to carry out the shooting.  His statement (“don't do it in the light”) could reasonably indicate that he had knowledge of T.M.’s “plan to shoot” and intended to help T.M. avoid detection.

Judge Beckwith writes in dissent that, contrary to the trial court’s reasoning, it is impossible to conclude beyond reasonable doubt, based on the fact that an unidentified male told T.M. to not “do it in the light,” that T.M. engaged in “some prior discussion” during which they formed an agreement to commit the shooting.  “The evidence established at most that another person who was expecting T.M. to shoot a gun gave her advice about how to avoid detection.”

Issue 2: Did the trial court plainly err in adjudicating T.M. delinquent for carrying a pistol under D.C. Code § 22-4504(a), given that statute’s purported facial unconstitutionality under District of Columbia v. Heller, 554 U.S. 570 (2008)?

Holding 2: No.  As of the appeal in this matter, this Court had not interpreted Heller to extend Second Amendment protection to carrying a pistol outside the home or place of business.  While Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014) did interpret Heller that way, that decision is at best persuasive and its weight has been significantly undermined by the subsequent en banc reversal of Peruta v. County of San Diego, on which it chiefly relied.  742 F.3d 1144 (9th Cir. 2014), rev'd en banc, 824 F.3d 919 (9th Cir. 2016).  Unlike the statute at issue in Conley v. United States, 79 A.3d 270 (D.C. 2013), former § 22-4504(a) does not offend any basic principle of due process or comparably well-settled Second Amendment principle.

Read full opinion here.