Jacobs v. United States
Jacobs v. United States
Opinion of the Court
Found guilty by a jury of a host of crimes including armed kidnapping and assault with intent to kill, appellant contends that the trial court erred in refusing to give an accomplice instruction to the jury as well as in giving the false or inconsistent statements instruction without amending it to include an express requirement of materiality. Rejecting both contentions, we affirm.
I.
The government’s evidence fairly permitted the jury to find that appellant aided and abetted two others in kidnapping and repeatedly shooting Bryant Lawson, leaving Lawson a quadriplegic. The events leading to the shooting began when, after a neighborhood football game, Omar Bal-langer fired a shot from a handgun that nearly struck Lawson. Lawson took the gun from Ballanger and threw it into a
II.
Appellant first contends that the trial court erroneously refused his request for the accomplice jury instruction as to Omar Ballanger, the government’s principal witness. See Criminal Jury Instructions for THE DISTRICT OF COLUMBIA, § 2.22 (4th ed. 1993). The government argues that Ballanger did not fit the description of an accomplice because there was no evidence supporting an inference that he sought to assist or encourage the others in seizing and shooting Lawson. Appellant, in turn, points to the evidence that Ballanger originally shot a gun in Lawson’s direction, then threatened to call his brother if the gun were taken from him and in fact called Reggie to report the loss of the gun, as well as evidence (in appellant’s statement to the police) that Ballanger had told the others where Lawson lived. Although the evidence was not strong of Ballanger’s active involvement in the kidnapping and assault (appellant’s trial counsel termed the accomplice argument a “stretch”), we agree that it would not have been unreasonable for the jury to view him as an accomplice.
Appellant was given free rein to question Ballanger about — and to argue to the jury — his incentives to testify favorably for the government in order to avoid prosecution for the events leading up to and including the shooting. In keeping with that evidence and argument, the trial court told the jury as part of the general instruction on witness credibility to consider any motive a witness had not to tell the truth or any interest he had in the outcome. Moreover, Ballanger’s testimony was corroborated in substantial detail by other witnesses and, to some extent, by appellant’s statement to the police.
In these circumstances this court’s decision in Tabron v. United States, 410 A.2d 209, 214-15 (D.C. 1979), adopting the analysis of United States v. Lee, 165 U.S.App.D.C. 50, 506 F.2d 111 (1974), demonstrates that the trial court’s refusal to instruct more specifically on the need to view Bal-langer’s testimony -with caution was not an abuse of discretion. Appellant disputes this conclusion by arguing that in Tabron
When the accomplice’s testimony is corroborated in material degree, there is no significant special problem of perjury .... It is enough if there is evidence that confirms material points of an accomplice’s tale, and confirms defendant’s identity and some relationship to the situation. The corroborative evidence need not resolve the conflicts between the accomplice’s testimony and an exculpatory version of the sequence of events.
Lee, 165 U.S.App.D.C. at 59-60, 506 F.2d at 120-21 (footnotes omitted). See also United States v. Laing, 281 U.S.App. D.C. 266, 272, 889 F.2d 281, 287 (1989); United States v. Murvine, 743 F.2d 511, 517 (7th Cir. 1984).
In this case, several eyewitnesses besides Ballanger confirmed that appellant drove Reggie Jacobs and Brian Love first to Ballanger’s house and then to Lawson’s house, where appellant waited outside in his car while Reggie and Love entered. These witnesses further confirmed that, as Lawson was being forced into an alley and beaten with guns, appellant bumped him hard from behind with the front corner of his car, causing Lawson to fear that “they [were] going to run over me and shoot me.”
III.
Appellant further contends that the trial court erroneously failed to modify the standard instruction on a defendant’s prior false or inconsistent statements to include a requirement that appellant have “intended to deceive the police about a material matter.” Although appellant argued to the trial court unrelatedly that the instruction should not be given at all (an objection he does not renew on appeal), he never requested the amended language he now urges us to require. We accordingly review the present contention only for plain error. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Green v. United States, 718 A.2d 1042, 1056 (D.C. 1998).
We find no error, much less plain error, in the court’s failure to add an express “materiality” requirement to the standard instruction.
The judgments of conviction are, therefore,
Affirmed.
. Although appellant did not raise the issue in his main brief, the government points out that one or more of his convictions merge. Appellant may seek relief from the cumulative sentences by a motion filed under Super. Ct. Crim. R. 35(a).
. During the trip appellant told Ballanger to lean far back in the car seat, apparently so as not to be recognized in Lawson’s neighborhood.
. The government acknowledges that Ballan-ger’s phone call to Reggie Jacobs may have "triggered” the retaliation. His total involvement went beyond that of the witness in Mitchell v. United States, 609 A.2d 1099 (D.C. 1992) (relied on by the government), who merely witnessed the shooting, left the scene with the defendant, and later took a bribe of drugs not to talk about what he had seen. Id. at 1111-12.
. One eyewitness stated: "I [saw] the car hitting him in the—towards his legs like where his butt [is] at. I kept seeing his knees move, like going forward like it was bumping him, like a hard impact .... ” The witness went on to state that appellant’s car was “taking and pushing [Lawson] towards the end of the other alley .”
. See Criminal Jury Instructions, supra, No. 2.29.
Reference
- Full Case Name
- Russell JACOBS v. UNITED STATES
- Status
- Published