                                District of Columbia
                                 Court of Appeals
No. 14-CF-1074
                                                                      NOV 10 2016
BERNARD FLEMING,
                                          Appellant,

       v.                                                             CF1-1328-14


UNITED STATES,
                                          Appellee.

             On Appeal from the Superior Court of the District of Columbia
                                     Criminal Division

       BEFORE: GLICKMAN, FISHER, and EASTERLY, Associate Judges.

                                       JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

             ORDERED and ADJUDGED that appellant’s convictions for second-
degree murder and other crimes are affirmed. The case is remanded for the trial court to
vacate two of appellant’s three convictions of possession of a firearm during a crime of
violence (“PFCV”) on merger grounds.


                                                 For the Court:




Dated: November 10, 2016.

Opinion by Associate Judge Stephen H. Glickman.

Opinion by Associate Judge Catharine Easterly, concurring in the judgment and joining
in Parts I, III, and IV of the opinion for the court.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CF-1074                      11/10/16

                         BERNARD FLEMING, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF1-1328-14)

                        (Hon. Robert E. Morin, Trial Judge)

(Argued April 5, 2016                               Decided November 10, 2016)

      Peter H. Meyers for appellant.

      Nicholas P. Coleman, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Suzanne
Grealy Curt, S. Vinet Bryant, and Kathryn L. Rakoczy, Assistant United States
Attorneys, were on the brief, for appellee.

      Before GLICKMAN, FISHER, and EASTERLY, Associate Judges.

      Opinion for the court by Associate Judge GLICKMAN.

      Opinion by Associate Judge EASTERLY, concurring in the judgment and
joining in Parts I, III, and IV of the opinion for the court, at page 21.
                                          2

       GLICKMAN, Associate Judge: In Roy v. United States,1 this court approved a

jury instruction in a murder prosecution on the “gun battle” (or “urban gun battle”)

theory of causation. The instruction permitted the jury to find that the defendant,

by engaging in a gun battle in a public space, was responsible for causing the death

of an innocent bystander killed by a stray bullet even if it was not the defendant

who fired the fatal round. For the jury to come to that conclusion, the approved

instruction required it to find, inter alia, that the bystander’s death was a

“reasonably foreseeable” consequence of the defendant’s participation in the gun

battle.2



       The trial court gave a similar gun battle causation instruction in the present

case, and the jury found appellant guilty of second-degree murder while armed.3

But whereas the victim in Roy was an innocent bystander, in this case it was one of

       1
           871 A.2d 498 (D.C. 2005).
       2
         Id. at 506-7 n.8; see also id. at 509 (explaining that “[w]hile the evidence
was unclear” as to which combatant fired the fatal shot, “such a determination is
unnecessary if both men prepared for and undertook to participate in the gun battle
where it was clearly foreseeable that others would be endangered”).
       3
         The jury also convicted appellant of two counts of assault with intent to
kill while armed, one count of carrying a pistol outside the home or place of
business, and three counts of possession of a firearm during a crime of violence
(“PFCV”). All those charges arose from the same incident as the second-degree
murder charge, but the gun battle causation instruction did not implicate them.
                                            3

appellant’s antagonists in the shootout who was killed. The prosecution requested

the instruction because evidence suggested that the fatal shot may have been fired

not by appellant or one of his confederates, but by a confederate of the decedent.

Appellant, who objected at trial, argues that a gun battle causation instruction is

improper where the decedent was a participant in the battle rather than, as in Roy

and other cases in which this court previously has encountered the instruction, 4 an

innocent bystander. We disagree, however, and conclude that the trial court did

not err in giving the gun battle instruction in this case.



      Appellant also seeks a new trial on grounds of prosecutorial misconduct, but

we conclude that the record does not support his claims of impropriety. We

therefore uphold appellant’s convictions. However, as the government concedes,

his three PFCV convictions merge, so we direct that two of those counts be vacated

on remand.5




      4
        See McCray v. United States, 133 A.3d 205, 223-26 (D.C. 2016); Blaine v.
United States, 18 A.3d 766, 768 (D.C. 2011).
      5
         See Matthews v. United States, 892 A.2d 1100, 1106 (D.C. 2006)
(“[M]ultiple PFCV convictions will merge . . . if they arise out of a defendant’s
uninterrupted possession of a single weapon during a single act of violence.”)
(citing Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999)).
                                          4

                                          I.



      Appellant was tried for the murder of Michael Jones in a gunfight that

erupted on the night of July 7, 2012. The shooting was the culmination of events

that began with a hostile confrontation earlier that evening between appellant and

Michael Jones’s brother, Maurice Jones.



      Maurice testified that at around 7:00 p.m. on July 7, he left his apartment at

Eighth and R Street Northwest to walk to a nearby store. On the way there,

Maurice encountered appellant, who was with two other men. Appellant taunted

Maurice and struck him on the chin. Being outnumbered, Maurice retreated to his

apartment.



      About half an hour later, Maurice and his girlfriend, Kendra Wingate, heard

banging on his front door and several voices outside. They ignored the banging

and did not open the door. After the banging stopped, Maurice looked out and saw

appellant waiting with two companions named Joseph Peoples and Rakeem

McMillan. In order to confront them on even terms, Maurice phoned his brother

Michael and a friend named Eric Cunningham and asked them to come to his

apartment. While he waited for them, Maurice looked outside from time to time
                                          5

and observed appellant, Peoples, and McMillan gesture for him to come out. After

a while, appellant and his companions departed.



      Not long afterward, Michael Jones and Eric Cunningham arrived at

Maurice’s apartment, together with a friend of Michael’s named James Hamlin.

The four men then left on foot to look for appellant. About a block away, Maurice

spotted Joseph Peoples rapidly descending an exterior stairway on the apartment

building at 1730 Seventh Street known as Lincoln Tower. Ignoring Maurice’s hail,

Peoples crossed Seventh Street to join Rakeem McMillan in front of a church.

Moments later, according to Maurice, Peoples turned and began shooting at him

and his three companions as they arrived at Lincoln Tower.



      Michael drew a gun and fired back at Peoples before he was killed by a

bullet in the head. Although Maurice testified that no one else in his group was

armed, the parties at trial stipulated that Hamlin also fired a gun in response to the

attack.   The stipulation was corroborated by shell casings from two different

weapons found in the vicinity of Michael’s body.          This, in conjunction with

inconclusive forensic evidence regarding Michael’s wound and the bullet

recovered from his body, raised the possibility that Michael was killed by “friendly

fire” from Hamlin.
                                          6

      Other shell casings recovered by police at the scene indicated that shots also

were fired from a second-floor balcony of Lincoln Tower overlooking Seventh

Street. Video surveillance footage obtained by the police from inside Lincoln

Tower showed appellant on that balcony during the shooting.6 The surveillance

footage also appeared to show appellant retrieving what could have been a weapon

from inside the building and bringing it to the balcony just before the shooting

started. Footage from just after the shooting showed appellant hurrying to the sixth

floor and rendezvousing with Peoples, and Peoples receiving something from

appellant that he then stashed in a stairwell. The police recovered firearms from

that location. Relying on this evidence, the government contended at trial that

appellant armed himself after seeing Maurice and company arrive at Lincoln

Tower, shot at them from the balcony, and then, after Michael was down and the

battle ended, handed his gun to Peoples, who hid it in the stairwell.



      Both appellant and Peoples were arrested later that night.        They were

indicted on one count of first-degree murder while armed, three counts of assault




      6
         Maurice, who fled after sustaining a gunshot wound in his chest, did not
see appellant during the gunfight.
                                            7

with intent to kill while armed, and related charges. The two were tried together.7

At the close of the prosecution’s case-in-chief, the trial court granted the

government’s motion to dismiss the first-degree murder counts and to proceed

instead on the lesser-included offense of second-degree murder while armed.

While the jury found appellant guilty of that offense (along with two counts of

assault with intent to kill while armed and the related weapons offenses), it

acquitted Peoples of the homicide.8



                                           II.



         Appellant argues that the trial court erred as a matter of law by giving a gun

battle causation instruction where the victim was not a mere bystander but rather

was an active participant in the battle. Our review of this contention is de novo,

requiring us to determine whether the instruction is a correct and adequate

statement of the law.9


         7
             Hamlin also was named in the indictment, but his case was severed before
trial.
         8
         Peoples was found guilty only of carrying a pistol outside the home or
business and of tampering with physical evidence.
         9
          See Brown v. United States, 139 A.3d 870, 875 (D.C. 2016) (“While we
review for abuse of discretion a trial court’s assessment of whether a jury
instruction is supported by the evidence, see Wheeler v. United States, 930 A.2d
                                                                   (continued…)
                                           8

      The gun battle causation instruction this court approved in Roy reflected the

fact that the murder victim in that case was a bystander; it required the jury to

determine, inter alia, whether “it was reasonably foreseeable that death or serious

bodily injury to innocent bystanders could occur as a result of the defendant’s

conduct” in engaging in a gun battle.10 In this case, where the victim was not a

bystander, the trial court omitted the reference to innocent bystanders and required

the jury to determine whether “it was reasonably foreseeable that death or serious

bodily injury [] could occur as a result of the defendant’s conduct during the gun

battle.”11 The instruction was given to clarify that appellant could be liable for




(continued…)
232, 238 (D.C. 2007), we review de novo the content of the instructions actually
given, see Wilson-Bey v. United States, 903 A.2d 818, 827 (D.C. 2006) (en
banc)[.]”); see also Roy, 871 A.2d at 507.
      10
           Roy, 871 A.2d at 507 n.8 (emphasis added).
      11
           The full gun battle causation instruction in this case was as follows:

              An element of second degree murder is that the defendant
              caused the death of Michael Jones. A person causes the
              death of another person if his conduct is a substantial
              factor in bringing about the death and if it was reasonably
              foreseeable that the death or serious bodily injury could
              result from such conduct. It is not necessary for the
              government to prove that the defendant personally fired
              the fatal round in this case. Rather, if the government
              proves beyond a reasonable doubt: Number 1, the
                                                                        (continued…)
                                            9

killing Michael Jones even if, as evidence suggested, the fatal shot might have

been fired by Hamlin rather than by appellant or his accomplice.



      We conclude that the trial court’s modified gun battle causation instruction

was legally sound. As stated in Roy, “[i]n this jurisdiction we have held findings

of homicide liability permissible where: (1) a defendant’s actions contribute

substantially to or are a substantial factor in a fatal injury . . . and (2) the death is a

reasonably foreseeable consequence of the defendant’s actions.”12 The gun battle

instruction applies these principles of proximate causation to the realities of urban

warfare, in which the antagonists are collectively responsible for creating a zone of

great danger – including a substantial likelihood that errant bullets will hit




(continued…)
           defendant was armed and prepared to engage in a gun
           battle. Number 2, he did, in fact, engage in a gun battle
           on July 7th, 2012 at approximately 10:30 p.m. Number
           3, the defendant’s conduct . . . was a substantial factor in
           the death of Michael Jones. Number 4, it was reasonably
           foreseeable that death or serious bodily injury . . . could
           occur as a result of the defendant’s conduct during the
           gun battle. And, Number 5, the defendant did not act in
           self-defense. If these circumstances are proved beyond a
           reasonable doubt, the defendant is deemed to have caused
           the death of Michael Jones.
      12
           Roy, 871 A.2d at 507-08 (internal citations omitted).
                                          10

unintended targets.13 It is true that Roy focused on the “highly increased risk to

noncombatants” in particular and reasoned that “[i]t is this increased risk to

innocent bystanders which justifies the application of proximate cause liability to

those participants who willfully choose to engage in these battles.”14 But the

combatants themselves are obviously at great risk as well, and it surely is no less

foreseeable that a stray bullet fired in the heat of a gun battle will unintentionally

hit an ally or confederate in the fight rather than someone outside it. For the

purposes of applying principles of proximate causation, it thus makes no

meaningful difference whether the reasonably foreseeable victim of a shootout was

a participant in the battle or a bystander. In either case, all those who intentionally

carried on the gun battle and thereby shared in creating the danger may be found to

have substantially contributed to the ensuing fatality.



      The evidence at trial in this case permitted the jury to find that appellant

proximately caused the death of Michael Jones, either by shooting Jones himself or


      13
          See id. at 507; see also id. at 511 (Glickman, J., concurring in part and
dissenting in part) (“Where two or more persons ‘voluntarily and jointly created a
zone of danger,’ it is fair to hold each one ‘responsible for his own acts and the
acts of the others’ that ensued.”) (quoting People v. Russell, 693 N.E.2d 193, 195
(N.Y. 1998)).
      14
           Id. at 507.
                                          11

by instigating and participating in a shootout in which one of the other combatants

shot Jones, intentionally or otherwise. Accordingly, we hold that the trial court did

not err in giving the gun battle causation instruction.



                                          III.



      Appellant also claims that he was denied a fair trial as a result of “repeated

prosecutorial improprieties” to which he made timely objection. He identifies the

improprieties as (1) asking a witness if she was scared to testify; (2) vouching for

Maurice Jones’s credibility and otherwise expressing personal opinions in closing

and rebuttal argument; and (3) submitting a new exhibit after the trial concluded.

Appellant argues that even though the trial court took corrective action in response

to the prosecutor’s questions and comments, the court’s remedies were inadequate

to dispel the cumulative prejudice to his defense.



      In reviewing allegations of prosecutorial misconduct at trial, we begin by

determining whether the challenged conduct actually was improper.15 If it was not,




      15
           See, e.g., Washington v. United States, 884 A.2d 1080, 1088 (D.C. 2005).
                                          12

that ends our inquiry, and we have no occasion to go on to evaluate the trial court’s

response and whether there was reversible error.16



      In the present case, we do not reach the second step in the analysis, because

we reject appellant’s claims of impropriety.



                     A.     “Are you scared to be here today?”



      The first alleged impropriety occurred during the direct examination of

Kendra Wingate, who was with Maurice Jones in his apartment on the evening of

July 7. Appellant charges that “without explanation or factual basis, the prosecutor

asked Wingate, ‘Are you scared to be here today?’”17 Appellant argues that this

question was improper and highly prejudicial, and that although the trial court




      16
         If we find that the challenged conduct was improper and that timely
objection to it was made, we must determine whether the trial court erred in
overruling or otherwise responding to the objection and, if so, whether the error
was harmless. “In making that determination, we consider the gravity of the
impropriety, its relationship to the issue of guilt, the effect of any corrective action
by the trial judge, and the strength of the government’s case.” Id. (internal
quotation marks omitted). If there was no timely objection, on the other hand, then
our review is only for plain error. Id.
      17
           Br. for Appellant at 15.
                                         13

sustained his objection, the damage had been done – “government counsel had

succeeded in raising the concern about the witness’s fear of testifying.”18



      We have recognized that questions to witnesses about their fear of testifying

may be prejudicial because “(1) they suggest to the jury a decision based on guilt

by association; and (2) the evidence plays on the passions and fear of the jury, by

suggesting that a threat exists against the witnesses.”19 “If the trial court admits

evidence of threats solely to go to the general credibility or bias of the witness,

such admission has been held to be an abuse of discretion.”20          But we have

recognized that there are situations in which such inquiries are probative and

permissible. One such situation is where the inquiry may help “to explain the

specific behavior of a witness, such as inconsistent statements, delay in testifying,

or unusual courtroom demeanor.”21 We have held that inquiries into a witness’s

fear are not improper where they help to explain prior inconsistent testimony, the

witness’s lack of memory about prior testimony, or her general reluctance to testify
      18
           Id.
      19
          Ebron v. United States, 838 A.2d 1140, 1149 (D.C. 2003) (citation and
internal quotation marks omitted); see also Gordon v. United States, 783 A.2d 575,
586 (D.C. 2001).
      20
           Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999).
      21
           Gordon, 783 A.2d at 586 (quoting Mercer, 724 A.2d at 1184).
                                        14

– especially where there are not less prejudicial means by which to explain the

witness’s behavior.22 In this case, Wingate’s testimony and demeanor on the stand

justified the inquiry.



      Before asking Wingate whether she was scared to testify, the prosecutor

asked her a series of questions about the events of the evening of July 7. When

asked about the banging and voices she heard at the door, Wingate repeatedly

claimed that she could not remember details such as how loud the voices were or

whether they were male or female. The prosecutor followed up, referencing her

professed inability to remember such details during prior interviews with

investigators and asking whether it was “true that [Wingate] did not remember . . .

or was it that [she] did not want to be here testifying?” Wingate first responded

that she did not remember, but then changed course and stated that she “did not

want to testify” but refused to say why not. Only after repeated attempts to cajole

Wingate into explaining her contradictory testimony and her unwillingness to

testify did government counsel ask whether she was “scared.” The court sustained

a defense objection and appellant sought no additional remedy.




      22
           See Mercer, 724 A.2d at 1187-90.
                                          15

      The government’s question was asked to ascertain the reason for the

witness’s reluctance and refusal to give truthful, relevant testimony. Wingate had

provided inconsistent explanations for her inability to recall salient facts about the

evening of July 7, and even when pressed, she was unwilling to explain why she

did not wish to testify. There is no indication that there existed any less prejudicial

means of explaining Wingate’s recalcitrance. Because the government’s question

was “meant to explain specific behavior of the witness while testifying,” we

conclude that, while the court did not abuse its discretion in sustaining the

objection to it, the inquiry was not improper.23



                   B. Vouching for a Witness’s Credibility
               and Expressing Personal Opinions as to the Facts.


      Appellant further contends that in closing and rebuttal argument, the

prosecutor improperly vouched for the veracity of the government’s key witness,

Maurice Jones, and expressed personal opinions regarding the facts of the case. In

particular, appellant complains that the prosecutor asked rhetorical questions

      23
           See Mercer, 724 A.2d at 1190. We note also that appellant did not
request further relief, such as a specific curative or limiting instruction, after the
trial court sustained his objection to the prosecutor’s question. The trial court did
not plainly err by not taking additional corrective action sua sponte to preclude any
possibility of prejudice. See Allen v. United States, 649 A.2d 548, 555 (D.C.
1994).
                                        16

implying belief in Jones’s credibility – e.g., “[d]o we really think he’s naming the

wrong folks?” and “[d]o we really think he’s just making names up?” – and

asserted that “[w]hat he’s telling you is what he can absolutely remember. He

doesn’t embellish it.” Appellant also complains that, in discussing the evidence at

trial, the prosecutor conveyed her personal opinions by asserting what “we know”

and what was (or was not) “true” – as, for example, when the prosecutor stated that

“[w]e know someone was firing” from the second floor balcony.24



      Prosecutorial vouching and other expressions of personal opinion are

improper because they


            can convey the impression that evidence not presented to
            the jury, but known to the prosecutor, supports the
            charges against the defendant and can thus jeopardize the
            defendant’s right to be tried solely on the basis of the
            evidence presented to the jury; and the prosecutor’s
            opinion carries with it the imprimatur of the Government




      24
          Although the trial court viewed the prosecutor’s remarks as “rhetorical
flourishes” rather than statements of personal opinion, it granted appellant’s
request for a curative instruction. After the prosecutor’s closing and rebuttal, the
court admonished the jurors to disregard anything they perceived to be the
expression of personal opinion by counsel and to decide the case on the evidence
alone.
                                            17

               and may induce the jury to trust the Government’s
               judgment rather than its own view of the evidence.[25]


Given this rationale, the condemnation of personal opinion requires us to focus

carefully on the nature of the prosecutor’s remarks.            Like other advocates,

prosecutors may and should marshal the evidence properly admitted at trial and

fairly argue its legitimate significance.26 That goes for argument, grounded in the

evidence, that the jury should (or should not) credit a witness’s testimony. “[T]he

key inquiry is whether the attorney is commenting on the evidence, which he may

do, or expressing a personal opinion, which is taboo. A comment will be within

the acceptable range as long as it is in the general nature of argument, and not an

outright expression of opinion.”27



      Our examination of the record in this case satisfies us that government

counsel’s challenged remarks were fair comments on the evidence admitted at trial,

not improper expressions of personal opinion.            Her rhetorical questions and

      25
          United States v. Young, 470 U.S. 1, 18 (1985); see also Mathis v. United
States, 513 A.2d 1344, 1348 (D.C. 1986).
      26
          See Dixon v. United States, 565 A.2d 72, 77 (D.C. 1989) (“The proper
exercise of closing argument is to review the evidence and to explicate those
inferences which may reasonably be drawn from the evidence.”) (quoting
Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985)).
      27
           Irick v. United States, 565 A.2d 26, 35 (D.C. 1989) (italics in the original).
                                        18

remarks regarding Maurice Jones’s testimony did not constitute personal vouching

for his credibility; they were asked in the context of argument drawing reasonable

inferences as to why Maurice, whose credibility the defense had attacked, might

not have remembered certain aspects of the gun battle. The comments did not

suggest that the prosecutor had knowledge outside the evidence admitted at trial or

invite the jury to trust the government’s judgment.28 Similarly, whenever the

prosecutor told the jury what “we know” or what was “true,” she referred to the

evidence that made it so. For instance, when the prosecutor stated that “[w]e know

someone was firing” from the second floor balcony, she completed the sentence by

explaining that it was “because there were shell casings left behind on that balcony

– not one, not two, but three right on the balcony – and several more that matched

it down below which is evidence of the fact that someone was standing there

firing.” There was never “any suggestion that the prosecutor was in effect adding

[her] own unsworn testimony to the evidence in the record.”29 We conclude that

the comments challenged by appellant were not improper.


      28
           Cf. Mitchell v. United States, 569 A.2d 177, 184 (D.C. 1990) (holding
that prosecutor’s characterization of two government witnesses as “‘truthtelling
individual[s]’ [was] very close to the personal expression that this court has
condemned,” but “was a fair response” with respect to the witness whose
credibility had been attacked by defense counsel).
      29
          Irick, 565 A.2d at 36 (footnote omitted). Likewise, when government
counsel argued what was “true” or not, she did so by reminding the jury of what
                                                                  (continued…)
                                        19

             C.    The Tardy Offer of a New Government Exhibit.



      Lastly, appellant argues that the government improperly waited until after

closing arguments were concluded to move an important new exhibit into

evidence. This exhibit was a compilation on one disc of the several surveillance

video clips that individually had been admitted into evidence during the trial. The

clips in the compilation were not altered and nothing new was added, but appellant

objected that he was unfairly surprised and should have been given the opportunity

to challenge the compilation.     The trial court, finding nothing unfair in the

admission of a single disc that merely compiled the unaltered video evidence

already admitted, overruled the objection.



      We agree with the trial court that there was no unfair surprise. While the

compilation disc should have been moved into evidence earlier – like other

exhibits, prior to the close of evidence, as is the normal procedure – it is an

exaggeration to characterize the government’s tardy motion as misconduct. There

is no indication that the prosecutor deliberately withheld the exhibit to gain a



(continued…)
evidence it had (or had not) seen, in order to rebut parts of the defense closing
arguments.
                                        20

tactical advantage. We discern nothing improper or prejudicial about the late

admission of a disc merely compiling in a convenient format the video evidence

that was already properly before the jury. Appellant had a full and fair opportunity

to challenge the admission of each video clip when it was offered during trial, to

explore and elucidate its probative worth, and to assess and interpret it in closing

argument. Even if appellant is right that the chronologically ordered compilation

of the separate videos on one disc “provide[d] a narrative supportive of the

government’s case,”30 there was nothing misleading or otherwise unfair in that. As

the trial court observed, the compilation was akin to a notebook of exhibits

arranged in sequence, a completely appropriate practice. We reject appellant’s

claim of prosecutorial misconduct.



                                        IV.



      For the foregoing reasons, we affirm appellant’s convictions for second-

degree murder while armed and other crimes, and we remand the case for the trial

court to vacate two of appellant’s three PFCV convictions on merger grounds.



                                                   So ordered.

      30
           Br. for Appellant at 16.
                                        21

      EASTERLY, Associate Judge, concurring in the judgment and joining in Parts

I, III, and IV: At the time Michael Jones was shot and killed, there were people

around him shooting guns at each other.1 Bernard J. Fleming may have been one

of the individuals shooting at Mr. Jones and his companions. No witness ever saw

and no videotape ever showed Mr. Fleming shooting a gun, and he was never

found in possession of a weapon. He was, however, seen with another man up on a

second-floor balcony where police found bullet casings and a bullet; he was also

seen before the shooting bringing an object—possibly a gun—to the balcony and

removing an object when the shooting was over; and he could have hidden two

guns later discovered by the police under a stairwell in the building, one of which

might have been used in the shooting. But even if Mr. Fleming possessed a gun

and was one of the persons shooting at Mr. Jones and his companions, no evidence

connected any shot he might have fired to the shot that killed Mr. Jones. The

bullet retrieved from Mr. Jones’ body was so fragmented that it could not provide




      1
         The record indicates that three people were seen with guns that evening:
the decedent, Michael Jones; his friend, James Hamlin; and Mr. Fleming’s co-
defendant, Joseph Peoples. Forensic analysis of all the gun casings and bullets
showed that three distinct weapons were used in the exchange of gunfire (a .40
caliber Glock-type firearm belonging to Mr. Hamlin; a “Hi Point” pistol belonging
to the decedent; and another .40 caliber Glock-type firearm fired from the
sidewalk, though it may have been fired from the balcony).
                                         22

an evidentiary link to the shooter. Moreover, evidence showed that Mr. Jones was

shot in the back of the head, making it possible that he was shot by Mr. Hamlin.



      Nonetheless, Mr. Fleming was held accountable for Mr. Jones’ death.2 He

was convicted of second-degree murder while armed based on the “urban gun

battle” theory of causation that this court announced in Roy v. United States, 871

A.2d 498 (D.C. 2005), i.e., the proposition that a defendant who exchanges gunfire

with another individual “proximate[ly] cause[s]” any death that results, whether or

not the defendant fired the fatal shot, id. at 506. I assume the division is bound by

this court’s decision in Roy to uphold Mr. Fleming’s conviction.3 But I cannot vote

to affirm without commenting on the dangerous incoherence of Roy’s “causation”

analysis. In truth, it dispenses with causation altogether, and, by thus reducing the

government’s burden of proof for murder, captures in its net individuals who can

only be proved to have committed far less serious crimes. Roy was wrongly

decided. Moreover, I cannot sign on to the division’s opinion applying Roy, which

effectively expands its illogic. I write separately to explain the flaws with Roy’s
      2
         Mr. Peoples was also charged with second-degree murder but was found
not guilty. Mr. Hamlin was only charged with and convicted of weapons offenses.
      3
         See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). Roy may have been
in conflict with other decisions of this court at the time it was decided. See infra
note 9. But given subsequent decisions applying the urban gun battle theory, see
infra note 24, I am unsure a division of this court could overturn Roy.
                                         23

causation reasoning and to call for en banc review to reject Roy’s urban gun battle

theory of guilt for murder.



                          I.    The Causation Problem in Roy



      It is a “basic postulate of our criminal law” that we impose liability when “a

free agent [is] confronted with a choice between doing right and doing wrong and

choos[es] freely to do wrong.” Carter v. United States, 252 F.2d 608, 616 (D.C.

Cir. 1957).4 We thus rely on principles of causation and complicity to define

criminal culpability: we punish people criminally for the harms they themselves

have caused5 or the crimes they have conspired with or helped others to commit.6



      4
         Our conception in criminal law of the individual as a rational actor, in
control of his own decisions, is apparent in our law of defenses. See, e.g., Barrett
v. United States, 377 A.2d 62, 63–64 (D.C. 1977) (holding that “temporary
insanity created by voluntary use of intoxicants will not relieve a defendant of
criminal responsibility”).
      5
         Cf. Prezzi v. United States, 62 A.2d 196, 198 (D.C. 1948) (holding that a
defendant charged with negligent homicide “is not responsible for what the other
[participants in the accident] did or for the negligence of the other [participants],”
and that a jury may not find a defendant guilty if “the accident was caused by the
negligence of [other participants]”).
      6
        See, e.g., Wilson-Bey v. United States, 903 A.2d 818, 841 (D.C. 2006) (en
banc) (describing “doctrines that permit conviction” on the basis of complicity, i.e.,
Pinkerton conspiracy liability and aiding and abetting liability).
                                        24

See Sanford H. Kadish,7 Complicity, Cause and Blame: A Study in the

Interpretation of Doctrine, 73 Cal. L. Rev. 323, 327 (1985) (discussing the

“separate bodies of doctrine” that dictate when an individual may be held

responsible for a crime: causation, “where results of a person’s action happen in

the physical world,” and complicity, “where results take the form of another

person’s voluntary action” and the defendant is somehow affiliated with that

person); id. at 332–33 (explaining that these doctrines are premised on our

foundational conception that humans are individual, volitional actors who choose

whether or not to comply with the law). This court in Roy, however, disregarded

our criminal law’s foundational principles of individual culpability and authorized

a determination of guilt for murder in the absence of either actual causation or

complicity.



      In Roy, an innocent bystander was killed by a stray bullet fired either by Mr.

Roy or his codefendant Mr. Settles. Roy, 871 A.2d at 501–02. The government

prosecuted both men for murder, on the theory, approved by the trial court, that “it

did not matter which [man] started the gun battle or which bullet actually killed”


      7
        Sanford Kadish has been described as “America’s foremost scholar of the
criminal law.” Michael S. Moore, Retirement of Sanford Kadish, 79 Cal. L. Rev.
1401 (1991).
                                         25

the bystander; it was enough that their actions had “turn[ed] city streets into an

urban battle ground.” Id. at 506. The trial court instructed the jury that the only

acts the government had to prove were that Mr. Roy and Mr. Settles (1) had each

“armed and prepared” himself “to engage in a gun battle” and (2) “did, in fact,

engage in a gun battle.” Id. at 507 n.8. The trial court then instructed the jury that

it could find each man guilty of murder if “defendant’s conduct . . . was a

substantial factor” in the bystander’s death, and it was “reasonably foreseeable”

that a bystander could be killed or suffer serious bodily injury. Id. at 506–07 n.8.

The trial court declined to instruct the jury, as requested by Mr. Roy and Mr.

Settles, that the government had to prove that the two men had an “agreement to

engage in mutual combat involving firearms.” Id. at 506.



      On appeal, Mr. Roy and Mr. Settles both argued that the court’s jury

instructions regarding causation improperly allowed each man to be found guilty of

murder in the absence of evidence that either man directly caused the bystander’s

death or that they were confederates. This court correctly disclaimed complicity as

a basis for Mr. Roy’s and Mr. Settles’ culpability for murder,8 but it then


      8
          The court in Roy employed terminology that misleadingly suggests
organized affiliations and allegiances that might support theories of complicity,
e.g., “combatants,” “battles,” “pocket wars,” and “shoot out[s]” at “High Noon,”
871 A.2d at 507–08, but in fact the court rejected a requirement that the
                                                                     (continued…)
                                         26

incorrectly held that complicity was unnecessary so long as the two men “prepared

for and undertook to participate in [a] gun battle where it was clearly foreseeable

that others would be endangered” and had “contribute[d] substantially to or [were]

a substantial factor in [the] fatal injury.”    Id. at 507–09.     In reaching this

determination, this court asserted that it was simply applying principles of

“proximate cause.” Id. at 507.



      The court in Roy misunderstood causation doctrine. Causation “consist[s] of

two constituent parts: actual cause and legal [proximate] cause.” Burrage v.

United States, 134 S. Ct. 881, 887 (2014). Actual causality “requires proof that the

harm would not have occurred in the absence of—that is, but for—the defendant’s



(continued…)
participants “reach a meeting of the minds to do battle,” id. at 508. To establish
complicity, the government would have had to have shown that these adversaries
either conspired with each other, necessitating an agreement to engage in criminal
activity, Wilson-Bey, 903 A.2d at 840–41, or that one man aided and abetted the
other “in the commission of the specific crime . . . charged,” id. at 831 (emphasis
in original) (quoting Roy (Nakia) v. United States, 652 A.2d 1098, 1104 (D.C.
1995)). But the government could not show that Mr. Roy and Mr. Settles, as
adversaries, had any sort of agreement; nor could it show that either man wanted
the other to succeed in the charged crime—murder—where he himself was the
target. See, e.g., Rivers v. Commonwealth, 464 S.E.2d 549, 551–52 (Va. Ct. App.
1995) (holding that “no existing common law theory,” including accomplice
liability, supported a conviction for a bystander’s death in a gun battle because the
appellant and the shooter “were not co-felons who acted in concert; instead they
acted in opposition to each other and did not share the same criminal goal”).
                                          27

conduct.” Id. at 887–88; see also McKinnon v. United States, 550 A.2d 915, 917

(D.C. 1988) (“In every criminal case, the government has the burden of showing

that the defendant’s conduct . . . was a cause in fact of the harm for which he . . . is

charged . . . .”). “Thus if A shoots at B intending to kill but misses, but at that

moment B drops dead of some cause wholly unconnected with the shooting, A is

not liable for the murder of B, in spite of the simultaneous existence of the two

required ingredients, A’s intentional conduct and the fatal result.” Wayne R.

LaFave, Substantive Criminal Law § 6.4 (2d ed.). As Professor LaFave explains,

“[w]hat is missing is the necessary causal connection between the conduct and the

result of conduct; and causal connection requires something more than mere

coincidence as to time and place.” Id. (footnote omitted).



      Only if actual or but-for cause is established do we ask whether the

defendant’s actions are the legal or proximate cause of the harm. The core inquiry

is whether there is some reason—e.g., an intervening event or attenuation—that

precludes holding defendant criminally culpable for the ultimate injury. See Butts

v. United States, 822 A.2d 407, 418 (D.C. 2003) (limiting liability on the basis of

proximate cause when an “intervening cause . . . was so unforeseeable that the

actor’s negligent conduct, though still a substantial causative factor, should not

result in the actor’s liability”); Paroline v. United States, 134 S. Ct. 1710, 1720
                                           28

(2014) (“[P]roximate cause is more restrictive than a requirement of factual cause

alone.”). In other words, we consider proximate cause after actual, but-for cause

has been established, and it acts to limit causation, not to extend it.



      The causation analysis in Roy is flawed both as to actual cause, which it

failed to consider, and as to proximate cause, which it defined incorrectly.



      The court in Roy ignored the actual or but-for cause requirement in our

second-degree murder statute, which obligates the government to prove that the

defendant “with malice aforethought . . . kill[ed] another”9 person. D.C. Code

§ 22-2103 (2013 Repl.) (emphasis added). Obviously someone had fired the shot

that killed the bystander, but the government’s investigation failed to establish



      9
          The clear meaning of this language was recognized by this court long
before Roy. Examining identical language in the first degree murder statute, D.C.
Code § 22-2101, this court explained that it requires the government to prove that
the defendant “inflicted injury on the decedent from which he died.” Waller v.
United States, 389 A.2d 801, 807 (D.C. 1978); id. at 807–08 (noting that “[t]he
type of conduct subject to its sanctions is clearly identified in words of common
understanding, with little room for misinterpretation or conjecture”); see also
Christian v. United States, 394 A.2d 1, 48 (D.C. 1978) (“By its terms . . . the first-
degree murder statute imposes . . . liability solely on the person who does the
killing. Other participants in the felony are exposed to . . . liability only by virtue
of the aiding and abetting statute.”); Ruffin v. United States, 76 A.3d 845, 854
(D.C. 2013) (acknowledging the “presumption that identical words used in
different parts of the same act are intended to have the same meaning”).
                                          29

whether that person was Mr. Roy or Mr. Settles.10 To the extent that the court

connected the bystander’s death to Mr. Roy’s or Mr. Settles’s acts of “prepar[ing]

for and undert[a]k[ing] to participate in [a] gun battle” (i.e., his acts of possessing

and firing a weapon), this evidence did not establish actual causation: simple

possession of a gun does not cause any injury, let alone a fatal one, and even firing

that gun cannot be said to cause a gunshot death if the fired bullet missed any

possible target.11



      Disregarding this fundamental failure of proof, Roy jumped to proximate

cause analysis, noting that this court has “long recognized proximate causation as a

valid theory of second-degree murder liability.” Roy, 871 A.2d at 508 n.11.12 It is


      10
        Mr. Settles fired first and fired three shots; Mr. Roy then fired back. Roy,
871 A.2d at 502–03.
      11
           To slightly modify Professor LaFave’s hypothetical, if A shoots at B
intending to kill but misses, B shoots back and misses, and C is killed by one of
their bullets, unless the government can show that A fired the fatal shot, A cannot
be found criminally responsible for C’s murder, “in spite of the simultaneous
existence of the two required ingredients[:] A’s intentional conduct and the fatal
result.” See LaFave, supra, at § 6.4.
      12
          Roy cited, inter alia, to Comber v. United States, 584 A.2d 26, 38–39
(D.C. 1990) (en banc), for this proposition. But this passage in Comber contains
no discussion of this principle, much less support for the court’s “proximate cause”
analysis; instead, the passage cited by the court in Roy is a discussion of the
meaning of the “malice aforethought” mens rea requirement for second-degree
murder. To the extent Comber discusses principles of proximate causation at all, it
                                                                       (continued…)
                                          30

correct that the District has long held that if a defendant actually causes an injury

that ultimately leads to death, the defendant may be convicted for murder. Accord,

Hopkins v. United States, 4 App. D.C. 430, 439 (D.C. Cir. 1894) (reaffirming the

centuries-old rule “that if one give wounds to another, who neglects the cure of

them, or is disorderly and doth not keep that rule which a person wounded should

do, yet if he die it is murder or manslaughter, according as the case is; because if

the wound had not been, the man had not died, and, therefore, neglect or disorder

in the person who received the wounds shall not excuse the person who gave

them”). But “proximate” cause does not relieve the government of proving that the

defendant in fact acted in a way that caused an initial injury.13




(continued…)
does so in the context of limiting liability for misdemeanor manslaughter, “mindful
of the danger” of using misdemeanor manslaughter to “cast too wide a net” of
homicide liability. Id. at 50.
      13
          Thus, in each of the proximate cause cases cited by the court in Roy, the
defendant had actually caused some injury to the decedent, and the issue was
whether an intervening event broke the causal chain such that the defendant could
not be convicted of manslaughter or murder. See Butts, 822 A.2d at 417–18
(holding that possible negligence by the victim of a vehicular homicide when
crossing the street was not an intervening event that negated drunk driver’s
criminal liability); McKinnon, 550 A.2d at 917–18 (holding that, where the
defendant slashed the decedent’s throat, requiring immediate surgery, an infection
was a reasonably foreseeable consequence and not an intervening cause of death);
Baylor v. United States, 407 A.2d 664, 669–70 (D.C. 1979) (upholding trial court’s
refusal to instruct the jury on intervening negligence where defendant’s action—
stabbing his wife with great force—substantially contributed to her death, even
                                                                     (continued…)
                                          31

      As noted above, proximate cause is a limiting concept. See Paroline, 134 S.

Ct. at 1720. Had this limiting concept been properly applied in Roy, it would have

precluded the jury from finding Mr. Roy criminally culpable for murder due to a

shot fired by Mr. Settles, or vice versa—not enabled it. The criminal law does not

accept an understanding of causation in which one person, A, “causes” another, B,

to voluntarily shoot and kill a third party. Instead, absent some connective theory

of complicity between A and B (which Roy disclaimed, see supra note 8 and

accompanying text), B is the only one responsible for his voluntary actions and

their fatal consequences.14 See H.L.A. Hart & A.M. Honoré, Causation in the Law

326 (2d ed. 1985) (“The free, deliberate, and informed intervention of a second

person, who intends to exploit the situation created by the first, but is not acting in

concert with him, is normally held to relieve the first actor of criminal

responsibility.”); Kadish, supra, at 391 (Under the common law, volitional,

criminal actions “are seen not as caused happenings, but as the product of the



(continued…)
where subsequent surgery necessitated by defendant’s actions may also have
injured her).
      14
          There are limited exceptions where courts trace causation through B to A
and only hold only A criminally culpable: if A uses B as an innocent
instrumentality, Kadish, supra, at 370, or if B’s conduct is legally justified, id. at
395. But neither of these scenarios is contemplated by the urban gun battle
narrative.
                                         32

actor’s self-determined choices, so that it is the actor who is the cause of what he

does, not [the individual] who set the stage for his action.”). Put another way, even

assuming arming oneself with a gun and firing it could satisfy the direct causation

requirement, the volitional, felonious act of someone else then shooting and killing

the decedent is an “intervening cause” that breaks this chain of criminal

causation.15



      Implicit in Roy’s theory of proximate causation for urban gun battles,

however, is an assumption that another person’s act of firing a fatal shot can be a

“foreseeable” event that does not break the causal chain between the defendant’s

actions—possessing and firing a gun—and a resulting death. 871 A.2d at 507–09.

Though foreseeability is certainly part of proximate cause analysis, see McKinnon,

550 A.2d at 917–18, the voluntary choices of other individuals (again, absent some

      15
           But it is not even clear that the government must prove this temporal
sequence under an urban gun battle theory, i.e., that the defendant “engaged” in a
gun battle first and then a person died. Rather, Roy suggests that, as long as the
government proves that two events occurred—the defendant fired his weapon, and
a person was shot and killed—liability for murder is established regardless of the
timing. In Roy, the government could not prove who fired the fatal shot, but the
evidence was undisputed that Mr. Settles was the first to fire his gun and that he
fired three shots before Mr. Roy ever fired back. 871 A.2d at 502–03. It was thus
possible that Mr. Settles immediately shot and killed the bystander before Mr. Roy
ever “engaged” in the gun battle. By implication, Mr. Roy’s engagement was
sufficient to make his actions a “substantial factor” in the bystander’s death, even
if it was subsequent to that event. Id. at 507 n.8.
                                         33

connective theory of complicity) are not the type of “foreseeable” consequences

that fall within the boundaries of criminal proximate cause. Foreseeability relates

to consequences in the physical, natural world, e.g., lighting a match next to a

flammable substance;16 but, because humans are individual, volitional actors, in

criminal law, we do not conceive of their responses to the actions of others as

“foreseeable” and thus serving as the basis for criminal culpability.17 “[W]hatever




      16
           See, e.g., Williams v. United States, 20 F.2d 269, 270 (D.C. Cir. 1927)
(rejecting the argument that decedent’s death was not caused by or foreseeable to
the defendant where she struck the decedent with a lighted lamp, “resulting in the
igniting of [his] clothes . . . and thereby causing his death”); see also Kadish,
supra, at 332 (“If I light a match in an area containing explosive vapors that ignite,
starting a fire that burns down a building, I may be blamed for the burning of the
building because I can be said to have caused it. I started a chain of events that led
to the burning of the building through cause and effect relationships governed by
laws of nature.” (emphasis added)).
      17
        As Professor Kadish explains, if someone else lit the match, the criminal
law would affix blame to the defendant only if there was complicity:

             I may have persuaded another responsible person to light
             the match or helped him by giving him a match for the
             purpose. The other person then caused the burning of the
             building. But whether I am to be blamed for the other
             person’s action would not be assessed by asking whether
             I caused his action in the same sense that his lighting the
             match caused the fire. Rather, my responsibility would
             be determined by asking whether my persuasion or help
             made me accountable for the other person’s actions and
             what they caused.

                                                                       (continued…)
                                         34

the relation of one person’s acts to those of another, it cannot be described in terms

of that sense of cause and effect appropriate to the occurrence of natural events

without doing violence to our conception of a human action as freely chosen.”18

Kadish, supra, at 335.



      This conception of causation and the bar on holding an individual criminally

liable for the volitional actions of others with whom the individual is not complicit

is long-standing. Indeed, the Supreme Court of Massachusetts addressed this

precise question in Commonwealth v. Campbell, 89 Mass. (7 Allen) 541, 543

(1863). In Campbell, the government asked the court to instruct the jury that if it

the defendant participated in “a riotous assembly,” he could be found guilty of

manslaughter “although the evidence may fail to show whether the shot which

killed the deceased was fired by the rioters with whom the [defendant] was acting

in concert, or by the soldiers who . . . resist[ed] the attack made . . . by the


(continued…)
Kadish, supra, at 332–33 (emphasis added). In short, “[t]he doctrine of causation
deals with fixing blame for natural events. The doctrine of complicity deals with
fixing blame for the criminal action of another person.” Id. at 333.
      18
           See also H.L.A. Hart & A.M. Honoré, Causation in the Law 41 (1st ed.
1959) (“A deliberate human act is therefore most often a barrier . . . in tracing back
causes in such inquiries: it is something through which we do not trace the cause
of a later event and something to which we do trace the cause through intervening
causes of other kinds.”).
                                          35

rioters . . . .” Id. at 543. Considering “whether the doctrine in question ha[d] any

just foundation in the recognized principles of law by which criminal responsibility

for the acts of others is regulated and governed,” the Supreme Court of

Massachusetts determined it did not. Id. In statements almost tailor-made to rebut

Roy’s urban gun battle theory, the court explained:


            No person can be held guilty of homicide unless the act is
            either actually or constructively his, and it cannot be his
            act in either sense unless committed by his own hand or
            by some one [sic] acting in concert with him or in
            furtherance of a common object or purpose.


Id. at 544. The court then continued:


            Certainly that cannot be said to be an act of a party in any
            just sense, or on any sound legal principle, which is not
            only not done by him, . . . but is committed by a person
            who is his direct and immediate adversary, and who is, at
            the moment when the alleged criminal act is done,
            actually engaged in opposing and resisting him and his
            confederates and abettors in the accomplishment of the
            unlawful object for which they are united.


Campbell, 89 Mass. at 544–45.           Based on these longstanding principles of

causation, Roy was wrongly decided.
                                         36

                       II.   The Causation Problem in Fleming



      As noted above, Roy’s urban gun battle theory is predicated on an

assumption that one person can “cause” another to shoot and kill a third party. The

majority opinion does not press this faulty conception of causation. Instead, it

shifts focus to hold that an individual who exchanges gunfire with another

“proximately causes” any death that results because both individuals are

“collectively responsible for creating a zone of great danger—including a

substantial likelihood that errant bullets will hit unintended targets.” Ante, at 9.

Repackaging the culpable criminal conduct supporting a murder conviction as the

act of creating a “zone of danger,” however, does not solve the causation problems

inherent in Roy’s urban gun battle theory.



      Until now, in the criminal law context, a “zone of danger” has been a mens

rea—not a causation—concept19: if a defendant, with specific intent, shoots and



      19
          The concept of a “zone of danger” is separately employed in tort cases to
determine whether a plaintiff has a viable claim of negligent infliction of emotional
distress. See, e.g., Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d
821, 826–28 (D.C. 2004) (“To establish a prima facie case of negligent infliction
of emotional distress, [plaintiff] must show that she was in the zone of physical
danger created by [the negligent actor’s] conduct”). But that tort law term of art
has no application in a murder prosecution.
                                          37

kills or injures his target as well as an unintended bystander, his malicious intent to

kill anyone within the zone of danger he created by firing “a hail of bullets” is

inferred. Ruffin v. United States, 642 A.2d 1288, 1298 (D.C. 1994) (adopting a

criminal law mens rea theory of concurrent intent denied by Ford v. State, 625

A.2d 984 (Md. 1993), and later adopted by Henry v. State, 19 A.3d 944 (Md.

2011)); see also, e.g., Washington v. United States, 111 A.3d 16 (D.C. 2015);

Mobley v. United States, 101 A.3d 406 (D.C. 2014); Castillo-Campos v. United

States, 987 A.2d 476 (D.C. 2010); Brown v. United States, 934 A.2d 930 (D.C.

2007); Walls v. United States, 773 A.2d 424 (D.C. 2001). A defendant’s inferred

concurrent intent to shoot and kill or injure everyone in a particular “zone of

danger,” however, does not address the causation gap that exists where there is no

proof that the defendant hit anyone or acted in complicity with someone who did.20


      20
            That said, the urban gun battle theory also impedes meaningful
examination of a defendant’s intent. To be guilty of murder a defendant must act
with malice. Comber, 584 A.2d at 38–40 (describing the four types of murder
encompassed by malice, including wanton and willful disregard of an unreasonable
human risk). But under the urban gun battle theory, the fact finder is never asked
to examine whether the defendant acted with malice before the fatal shot is fired.
Again, the defendant need not fire the fatal shot, and the malice requirement
applies only generally to the defendant’s “engagement” in the urban gun battle,
without regard to when the defendant fired a gun. See supra note 15. This is in
sharp contrast to the theory of concurrent intent, which examines a defendant’s
intent at the time when he fired a gun and killed multiple individuals (or when his
co-conspirators or accomplices did so). Moreover, casting the blanket of an “urban
gun battle” over a shooting incident virtually guarantees that the fact finder will
conclude the defendant’s actions were dangerously reckless, obscuring
                                                                      (continued…)
                                         38

      But the more fundamental problem with reframing Roy’s causation theory to

require that the government prove nothing more than that the defendant,

contemporaneously with others, created a “zone of danger” is that this reframing

actually changes the substantive nature of the crime. Under D.C. Code § 22-2103,

a person is guilty of second-degree murder when he “kills another,” id. (emphasis

added); see also supra note 9, with the requisite state of mind, not when he creates

a zone of danger in which another person somehow gets killed. The actions of an

individual who creates a “zone of danger” do not themselves kill or lead to the

death of anyone: death comes from the action of the shooter who fires the fatal

shot. This court cannot “appl[y] principles of proximate causation,” ante, at 10, to

bridge this causation gap, for reasons already discussed.          And we are not

empowered to effectively rewrite the murder statute and to dispense altogether

with the direct causal connection between a defendant’s actions and a death. See

Santos v. District of Columbia, 940 A.2d 113, 116 (D.C. 2007) (“In general, the

‘definition of the elements of a criminal offense is entrusted to the legislature.’”);

cf. United States v. Heinlein, 490 F.2d 725, 736 (D.C. Cir. 1973) (refusing to




(continued…)
examination of the individual motivations of each actor as events unfold in real
time.
                                           39

extend the felony-murder statute “beyond its common law origins” and holding

that “[f]urther action by Congress would be necessary to that end”).21



                              *            *             *



      Courts may feel “pressure” to somehow find criminal liability in cases

“where the culpable consequence of [the] defendant’s action is some unintended

but voluntary action of another,” but Professor Kadish warns that “[t]here is no

way to extend liability in these cases . . . in a way that does not require a significant

departure from doctrinal premises.” Kadish, supra, at 399–400, 402–03. This

court’s urban gun battle theory is a case in point.           With no real causation




      21
           The Council could create a new “zone of danger” murder crime. Accord,
Rivers, 464 S.E.2d at 554 (rejecting an urban gun battle type theory of guilt as
inconsistent with the common law and concluding that “the legislature, not this
Court, is the appropriate forum in which to amend [the law] to provide for criminal
liability [for opponents in a gun battle]”). But it is unclear why the Council would
feel pressed to do so. We already have serious felonies that prohibit actions that
cause danger in the community, e.g., assault with intent to kill, D.C. Code § 22-401
(2013 Repl.) (punishable by up to fifteen years imprisonment), and assault with
intent to kill while armed, D.C. Code § 22-4502 (2013 Repl.) (punishable by up to
thirty years imprisonment).
                                          40

requirement (and no complicity requirement), this theory is unmoored from

established common law principles of criminal culpability.22



      In effect, the court in Roy made a policy choice to create a new crime that

allows an individual to be convicted of murder without proof that he caused (or

was complicit in) a murder. If the objective was to ensure that certain homicides

beget at least one murder conviction, it is antithetical to another “cardinal principle

of Anglo-American jurisprudence that, in Blackstone’s immortal words, better ten

guilty persons should go free than one innocent person be convicted.” United

States v. Greer, 538 F.2d 437 (D.C. Cir. 1976) (citing 4 William Blackstone,

Commentaries on the Laws of England 352 (1769)). Indeed, the creation of this

new crime leads to a perverse result: in contrast to cases where the government

shoulders its burden to prove the identity of the killer, in urban gun battle cases, the

government can successfully prosecute more people for murder based on far less




      22
           We should not be reassured that a few other courts have similarly
misapplied causation principles to recognize an “urban gun battle” theory of guilt
for murder. See Roy, 871 A.2d at 507 n.10. We may look to other jurisdictions to
see how they have analyzed and applied common law doctrines, but we have an
obligation to scrutinize other courts’ analyses and refuse to follow suit where their
analyses are flawed.
                                         41

proof.23 But the biggest problem with this court’s decision in Roy is that we

exceeded our judicial role. It is not our job to create new crimes. We do violence

to the law when we purport to apply the common law doctrine but in fact act as a

legislature. Before more damage is done,24 we need a course correction. Roy

should be overturned by this court en banc, not revised and effectively extended by

the panel in this case.



      23
          Cf. Wilson-Bey, 903 A.2d at 838 (holding that aiders and abettors may
only be held accountable for crimes committed by a principal when the aider and
abettor has the same mens rea as the principal, because “it is particularly
inappropriate to permit the conviction of an aider and abettor upon a lesser
[evidentiary] showing . . . than is required vis-à-vis a principal when the
defendants are being prosecuted for a homicide”).
      24
           Roy’s problematic “proximate cause” theory of causation has been
applied in a handful of cases, though never challenged on these grounds. See, e.g.,
Bryant v. United States, No. 14-CF-268 (D.C. Nov. 3, 2016); McCray v. United
States, 133 A.3d 205 (D.C. 2016); Blaize v. United States, 21 A.3d 78 (D.C. 2011);
Blaine v. United States, 18 A.3d 766 (D.C. 2011). Notably, the division’s decision
in this case is at least in tension with this court’s recent decision in Bryant: this
division now holds that the urban gun battle theory of liability can apply to the
shooting death of non-bystanders, because “it makes no meaningful difference
whether the reasonably foreseeable victim of a shootout was a participant in the
battle or a bystander.” Ante, at 10. But in Bryant the court determined that the
urban gun battle theory could be used in first-degree murder cases because it is the
“increased risk to innocent bystanders which justifies the application of proximate
cause liability to those participants who willfully choose to engage in these
battles.” Bryant v. United States, No. 14-CF-268, slip op. at 18 (D.C. Nov. 3,
2016). Such conflicting statements about the boundaries of the urban gun battle
theory of liability are inevitable when the court is applying a judicially-legislated,
ad hoc theory of culpability that has no foundation in common law doctrine.
