Smith v. U.S.

306 A.3d 67

Anthony SMITH, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-1095

District of Columbia Court of Appeals.

Argued October 30, 2023

Decided December 21, 2023

On Appeal from the Superior Court of the District of Columbia (2017-CF3-015315), (Hon. Milton C. Lee, Trial Judge)

Nancy Allen, Torrance, CA, for appellant.

Timothy R. Cahill, Assistant United States Attorney, with whom Matthew M. Graves’, United States Attorney, Jessie K. Liu, United States Attorney at the time the brief was filed, and John P. Mannarino, Bianca Ford, Ryan H. Creighton, and Elizabeth Gabriel, Assistant United States Attorneys, were on the briefs, for appellee.

Before McLeese and Shanker, Associate Judges, and Thompson, Senior Judge.

McLeese, Associate Judge:

Appellant Anthony Smith seeks review of his convictions for a number of offenses based on an incident in which he took his former girlfriend’s car without her permission, fled from the police, and crashed into several cars. We affirm in part and reverse in part.

I. Factual and Procedural Background

The United States’s evidence at trial included the following. Mr. Smith and Danielle Munn had been in a romantic relationship and had a child together. One day in August 2017, Mr. Smith punched Ms. Munn in the face and said, "You might want to ask your friend to come spare your life." Ms. Munn applied for a protection order the same day. When Ms. Munn returned home, Mr. Smith was there. Ms. Munn called the police to serve the protection order, but Mr. Smith left before the police arrived.

Mr. Smith returned about two hours later, and Ms. Munn again called the police. Mr. Smith was not cooperative, and the police arrested him and served the protection order. Mr. Smith was released from custody the next day. That same day, Ms. Munn heard her door being kicked in. She hid in a closet and called the police. After the police arrived, Ms. Munn discov- ered that her car and her ear keys were gone.

Two days later, Ms. Munn agreed to meet Mr. Smith at a restaurant after the police were unsuccessful in retrieving her car. During the meeting, Mr. Smith took Ms. Munn’s cellphone and refused to return it. They left the restaurant, and Ms. Munn saw her car. Mr. Smith got in the car, and Ms. Munn told him not to drive because he was clearly intoxicated. Mr. Smith told Ms. Munn to get in the car. After struggling over the car keys, Ms. Munn got in the car.

Mr. Smith drove off, swerving around cars. After saying "Our daughter’s not going to have her mother," Mr. Smith took out a knife and tried to stab Ms. Munn. Ms. Munn grabbed the knife, cutting her hand in the process, and the knife broke. Ms. Munn told Mr. Smith to stop the car, but Mr. Smith kept driving. When Mr. Smith slowed down because of a car in front of him, Ms. Munn jumped out of the car.

Using a bystander’s phone, Ms. Munn called the police. The police arrived and broadcast a description of Ms. Munn’s ear. Several police vehicles located the car. After the police activated their lights to conduct a stop, Mr. Smith slowed, started to pull over to the curb, and then drove off at a "high rate of speed." During the ensuing car chase, Mr. Smith drove the wrong way on one-way streets, drove at dangerously high speeds, made illegal turns, wove in and out of traffic, and ran traffic lights and signs.

Mr. Smith also collided with several cars. He first collided with a car driven by an off-duty police officer, damaging that car and injuring its driver, who went to the hospital. After that collision, pursuing officers got out of their vehicles and ordered Mr. Smith to stop and get out of the car. Instead, Mr. Smith drove his car into one of the officer’s vehicles, pinning the officer between a door and the frame of the vehicle. That collision injured the officer and damaged the officer’s car. Two other officers drew their weapons, but Mr. Smith drove off, with other officers still in pursuit.

After driving at a high speed for several blocks, Mr. Smith collided with a car driven by William Foster. Mr. Foster had been stopped at a red light, and he was not aware of Mr. Smith’s car until the collision. Mr. Foster felt "a jar," but he did not suffer any physical injuries. The bumper and fender of Mr. Foster’s car were damaged, requiring repairs costing approximately $2,500.

Mr. Smith continued driving, running through red lights and making an illegal turn. He then collided with a car that Shannon Mason was driving. Mr. Smith’s car did not slow down before the collision, and it was "flying." Ms. Mason’s car was also occupied by two of Ms. Mason’s children: S.M., who was eleven years old; and C.M., who was one year old. Ms. Mason "blacked out" momentarily after the collision. When she regained consciousness, she screamed for help because she could not move her wrist and hands. Ms. Mason’s car suffered extensive damage and was a "total loss." Because of the damage to the car, S.M. had to climb through a window to get out of the car. Ms. Mason and her children were taken to the hospital. Ms. Mason had injuries to her hands. S.M. was very distraught after the collision, and she suffered headaches, stomachaches, nightmares, and insomnia. C.M., who had been asleep at the time of the collision, did not appear to have suffered physical injuries or to have been "shaken up a lot."

A police officer who had been pursuing Mr. Smith got out of her patrol car, drew her weapon, and told Mr. Smith to get out of the car. Mr. Smith did not comply, and when the officer entered Mr. Smith’s car, Mr. Smith pulled a knife out of his sock. After a struggle, officers removed Mr. Smith. When officers searched Mr. Smith, they found Ms. Munn’s wallet in Mr. Smith’s sock.

Mr. Smith testified at trial to the following. He did not punch Ms. Munn in August 2017. He did take Ms. Munn’s car without her permission. He found Ms. Munn’s wallet in the car, and he intended to return it to her when they met at the restaurant. He took Ms. Munn’s cellphone at the restaurant, but he did so to keep the cellphone from being a distraction during the conversation, and he intended to return the cellphone. Mr. Smith had had a couple of beers before the meeting at the restaurant, but he was nevertheless "responsible."

After the meeting in the restaurant, Ms. Munn and Mr. Smith got into Ms. Munn’s car, with Mr. Smith driving. Mr. Smith did say to Ms. Munn that their "daughter’s not going to have her mother anymore," but he meant only that Ms. Munn was going to lose custody because Mr. Smith was concerned about Ms. Munn’s parenting.

Mr. Smith had two knives, which he kept to protect himself. He pulled one of the knives while he was driving with Ms. Munn, because he was frustrated. After Ms. Munn grabbed the knife and jumped out of the car, Mr. Smith drove around the block to see if Ms. Munn was okay. When he saw she was talking on a phone, he drove off.

Mr. Smith heard sirens and realized the police were behind him. He started to pull over, but he decided that it was not "a safe opportunity." Mr. Smith drove the wrong way down one-way streets and ran several red lights, but he did so because he was afraid, particularly after officers ran toward him with their guns drawn. Mr. Smith did not remember two of the collisions, but he never intended to collide with anyone and instead fled to save his own life.

II. Response to Jury Note

[1] Mr. Smith challenges the trial court’s response to a note the jury sent out during deliberations asking about the charge of assault with a dangerous weapon ("ADW") involving Mr. Foster. Both parties take the position that this court should review the trial court’s response deferentially, for abuse of discretion. See, e.g., Bouknight v. United States, 641 A.2d 857, 860 (D.C. 1994) ("[T]he decision on what further instructions, if any, to give in response to a jury question lies within the sound discretion of the trial court.") (internal quotation marks omitted). We recently clarified en banc, however, that "we review de novo whether challenged jury instructions adequately state the law." Fleming v. United States, 224 A.3d 213, 219 (D.C. 2020) (en banc). Assuming without deciding that our review is de novo, we see no error in the trial court’s response to the jury note at issue.

A. Procedural Background

The initial jury instructions stated that, in order to find Mr. Smith guilty of ADW on Mr. Foster, the jury was required to find that Mr. Smith acted "voluntarily and on purpose, not by mistake or accident." The instructions further explained that the jury could "find that the Government has proven the necessary state of mind for the offense … if the Government proves, beyond a reasonable doubt, that Anthony Smith engaged in reckless conduct." The instructions on that charge did not refer to the concept of mitigation. In contrast, the jury instructions on the charges of destruction of property did refer to the con- cept of mitigation, which the instructions defined as existing when "a person acts in the heat of passion caused by adequate provocation." The instructions further stated that the heat of passion can include "terror and fear."

On the second day of deliberations, the jury sent out a note asking whether, with respect to the charge of ADW on Mr. Foster, it would be sufficient to establish "[v]oluntariness[,] or the state of mind of recklessness[,] if we find that the defendant was acting based on a reasonable fear or terror." Without objection, the trial court responded to that note by stating,

[T]o satisfy the element of the offense of assault with a dangerous weapon, the Government must prove beyond a reasonable doubt that the defendant acted voluntarily and on purpose, not by mistake or accident. You may find that the government has proven the necessary state of mind for this offense … if the Government proves beyond a reasonable doubt that Anthony Smith engaged in reckless conduct[ ]. So in determining whether the defendant acted recklessly, you should consider

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