Trice v. United States

525 A.2d 176, 1987 D.C. App. LEXIS 340

• Court: District of Columbia Court of Appeals
• Decided: April 27, 1987
• Docket: 84-518
• Status: Published

Opinions

TERRY, Associate Judge:

Appellant was convicted of willfully failing to appear in court when required, a crime commonly known as bail jumping, in violation of the District of Columbia Bail Act, D.C.Code § 23-1327(a) (1981). On appeal he contends that the evidence on the element of willfulness was insufficient to support his conviction, and that the trial court’s instructions to the jury were confusing and incomplete. We reject all his arguments and affirm the conviction.

I

The government presented no live testimony in its case in chief but simply introduced four exhibits, each a photocopy of an official court document.¹ Exhibit No. 1 was part of the case file in Criminal Case No. M-8783-83, which showed that appellant was charged with a misdemeanor on July 11,1983. He was released that day on his own recognizance, to return to court for trial on August 1. The exhibit also indicated that appellant was advised of the penalties for failure to appear in court as directed.

Exhibit No. 2 was a docket entry showing that appellant failed to appear in court on August 1 in No. M-8783-83, and that a bench warrant was issued that day for his arrest. Exhibit No. 3 was a copy of the bench warrant. The return at the bottom showed that appellant was arrested on the warrant on September 8, 1983.

Exhibit No. 4 was a copy of the District of Columbia Pretrial Services Agency’s conditional release form, which was issued on July 11, 1983, at appellant’s arraignment. It listed appellant’s address as 636 I Street, S.E., Apartment 33. The form instructed appellant to report in person to the Pretrial Services Agency once a week. Appellant’s signature appeared next to a statement in bold print that said, “I understand the penalties which may be imposed on me for willful failure to appear or for violation of any condition of release and agree to comply with the conditions of my release and to appear as required.” ² Immediately above appellant’s signature was a box stating that appellant was “NEXT DUE BACK” on August 1, 1983, in Courtroom 1 at 9:00 a.m. Finally, in another box below appellant’s signature, beginning with the word “IMPORTANT,” appeared a notice in block capitals instructing appellant “to notify immediately the D.C. Pretrial Services Agency, 500 Indiana Avenue, N.W., first floor, telephone number 727-2800, of any change of address, employment, or change in status of any release conditions.”

Appellant did not deny that he failed to appear in court on August 1, 1983, but defended on the ground that his failure was not willful. He testified that he was not in court on August 1 because he was unaware that he was supposed to be in court that day. At that time, he said, he had another pending criminal case, No. F-3821-82, in which he had made “around nine or ten” appearances without missing any scheduled court dates. Appellant explained that he routinely received notices in the mail from the Pretrial Services Agency telling him when and where to appear in court. The notices were mailed to his aunt’s home at 613V2 Park Road, N.W., rather than his own home at 636 I Street, S.E., because the mailbox in his apartment building had been “vandalized.” ³

Appellant remembered going to court on July 11, 1983, the day he was arraigned, but all he could think about that day was “going home.” He said that neither his attorney nor anyone from the Pretrial Services Agency called him or mailed him a notice regarding his next scheduled court appearance.

On cross-examination, appellant acknowledged that he had signed the Pretrial Services Agency conditional release form immediately below the box stating that he was “NEXT DUE BACK on 1 Aug. 83 in Courtroom 1 at 9 A.M.” He also conceded that he had received a copy of the form, but he could not remember what had happened to it. Appellant admitted that he did not contact the Pretrial Services Agency until August 8, when he called to inform the Agency of his problem with receiving mail and to find out when he was to return to court. He did not know with whom he talked on August 8, but whoever it was did not know the date of his next scheduled court appearance. Finally, appellant said he “understood” that the document he signed on July 11 “was an order” for him to return to court.

Michael Gunn, a representative of the Pretrial Services Agency, testified that the Agency’s records showed that between July 26,1982, and June 7,1983, the Agency sent notices about appellant’s pending felony case, No. F-3821-82, to him at 613V2 Park Road, N.W. The records also showed, however, that with respect to his pending misdemeanor case, No. M-8783-83, in which appellant was scheduled to appear in court on August 1, 1983, the Agency sent the notices to 6 (not 636) I Street, S.E. Two notices were mailed, one on July 15 and one on July 27. On cross-examination Mr. Gunn explained that the Agency relied upon each defendant to provide a correct mailing address and to notify the Agency of any changes of address. The Agency, he said, had no way to determine whether a defendant’s purported address was correct.

Cora Williams, appellant’s aunt, testified that she lived at 613V2 Park Road, N.W. She said that appellant had lived with her at an unspecified time in the past, and that during that time he had received mail there. However, no mail addressed to appellant had come to her house for over two years.⁴ She specifically stated that she had not received any mail for him after he moved away, and that no mail came for him in August 1983. When asked whether she had ever notified appellant of his court dates, she replied, “[W]hen he had court days, I notified him, when he got mail, but he ain’t got no mail there.”

The government recalled Mr. Gunn as a rebuttal witness. He testified that the Agency records showed only one telephone contact with appellant concerning case No. M-8783-83. That contact occurred on August 25, 1983, not August 8 as appellant had claimed. In addition, Mr. Gunn pointed out that appellant did not comply at all with one of the conditions of his release in No. M-8783-83, namely, that he report weekly, in person, to the Agency.

The court instructed the jury in part as follows:

The essential elements of the offense of bail jumping, each of which the Government must prove beyond a reasonable doubt, are:

1. That the defendant was released by a judicial officer in connection with a charge of a misdemeanor;

2. That on August 1st, 1983, the defendant was required to appear before a court or judicial officer in connection with the misdemeanor charge;

3. That the defendant willfully failed to appear as required. In this connection, you are advised that an act is done willfully if done knowingly, intentionally, and deliberately.

If you find beyond a reasonable doubt that the defendant had received notice of the date on which he was to appear before a court or judicial officer and that he failed to appear on that date, then you may infer that his failure to appear on that date was willful. You may not infer that he willfully failed to appear, however, if, after considering all of the evidence, you find that his failure to appear was not willful.

You are further instructed that even if the defendant did not receive actual notice of the date on which he was to appear before a court or judicial officer, you may, if you find beyond a reasonable doubt that reasonable efforts were made to notify the defendant and that the defendant, by his own actions, willfully frustrated the receipt of actual notice, find that the defendant willfully failed to appear.

In determining from all the circumstances in question whether the defendant’s failure to appear was willful beyond a reasonable doubt, you may also consider whether, at the time of his release from custody, the defendant was advised by a judicial officer of the penalties for failure to appear. You are instructed, however, that the Government need not establish that the defendant was advised of the penalties for failure to appear and you may return a verdict of guilty as to the defendant, even though there is no proof that the defendant was advised of the penalties for failure to appear, if you are otherwise satisfied beyond a reasonable doubt from all the evidence that the defendant’s failure to appear was willful.

Intent means that a person had the purpose to do a thing. It means that he failed to act or acted with the will or will not to do the thing. It means that he acted or failed to act consciously or voluntarily and not inadvertently or accidentally.

Some criminal offenses require only a general intent. Where this is so, and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act.

Intent is a state of mind. Intent ordinarily cannot be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind. But you may infer the defendant’s intent from the surrounding circumstances. You may consider any statement made and act done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. You may infer that a person ordinarily intends the natural and probable consequence of acts knowingly done or knowingly omitted. However, you should consider all the circumstances in evidence that you deem relevant in determining whether the Government has proved beyond a reasonable doubt that the defendant acted with the required intent.

On appeal, appellant argues that the evidence was insufficient to prove that he willfully failed to appear in court when required, and that the court’s instructions to the jury were erroneous and confusing. He also maintains that the court’s failure to give a specific intent instruction was reversible error.

II

The crime of bail jumping, under D.C. Code § 23-1327(a) (1981), has four elements. The trier of fact must find (1) that the defendant was released pending trial or sentencing, (2) that he was required to appear in court on a specified date or at a specified time, (3) that he failed to appear, and (4) that his failure was willful. Raymond v. United States, 396 A.2d 975, 976 (D.C.1979). In this case, as in most bail jumping cases, the government’s proof of the first three elements was not contested. The critical issue before the jury was the issue of willfulness.

The government was obliged to prove that appellant, “having been released ... willfully fail[ed] to appear before any court or judicial officer as required_” D.C. Code § 23-1327(a). “Any failure to appear after notice of the appearance date [is] prima facie evidence that such failure to appear [was] willful.” D.C.Code § 23-1327(b). The government introduced into evidence appellant’s signed release form of July 11, 1983, which stated immediately above his signature that he was required to appear in Courtroom No. 1 at 9:00 a.m. on August 1, just three weeks thereafter. The evidence also showed that appellant was advised of the penalties for failing to appear in court as directed, and that he failed to appear on August 1. Thus the government presented enough evidence to establish a prima fade case under the statute.

Appellant did not dispute his failure to appear, and he admitted in his testimony that he understood the release form to be an order directing him to return to court on August 1. Focusing his defense on the element of willfulness, he presented evidence designed to show that his failure to appear was not willful. This evidence did not negate the government’s prima fade case, however, but simply created a factual issue for the jury to resolve.

Appellant testified that he had come to rely on mailed notices from the Pretrial Services Agency in another pending case, and through Mr. Gunn he sought to prove that in case No. M-8783-83 the Agency had mailed its notices to the wrong address. Appellant’s own testimony showed, however, that he did not inform the Pretrial Services Agency of his problem with receiving mail even at the correct address until at least one week after his scheduled August 1 court appearance. The government’s rebuttal evidence established not only that appellant in fact failed to contact the Agency until more than three weeks after August 1, but that he never complied at all with one of the other conditions of his pretrial release, which was to report in person to the Agency every week.

Appellant’s testimony that he relied on his aunt to forward mail to him was contradicted by his aunt’s testimony that she had not received any of appellant’s mail for at least two years before trial. In any event, appellant’s suggestion that his absence from court on August 1 was due to his failure to receive a secondary notification from the Pretrial Services Agency, as he had on several occasions in his other pending case, was not a legally acceptable excuse for his failure to appear. See Raymond v. United States, supra, 396 A.2d at 978 (bail jumping conviction upheld when defendant had been given written notice of the requirement to appear on a date certain, “although he was not thereafter reminded of it by the Agency”).

Although appellant testified that he lost his copy of the release form and was thus unaware of when he was due back in court, he did not dispute that he signed the form immediately below the “NEXT DUE BACK” box, which conspicuously stated the date of his required appearance. Even if he did lose the form, it does not follow that he lacked notice of the appearance date; on the contrary, his undisputed receipt of the form at his arraignment was sufficient to establish that he had adequate notice, which in turn was prima fade evidence that his failure to appear on August 1 was willful. D.C.Code § 23-1327(b) (1981). Moreover, as we said in Raymond, appellant “is not a newcomer to the criminal justice system and cannot now hide behind a shield of naivety and confusion.” 396 A.2d at 978. It was appellant’s responsibility to appear in court when instructed to do so. If he could not remember the date that was on the form, it was up to him to contact the Agency immediately. His failure to do so cannot excuse his violation of the statute.

In sum, we hold that the government established a prima fade case. Viewing the evidence in the light most favorable to the government, as we must,⁵ we are fully satisfied that it was sufficient under Raymond to permit the case to go to the jury.

Ill

Appellant also argues that the trial court’s instructions confused the jury as to what the government had to prove on the issue of willfulness. He contends that willfulness has never been adequately defined by this court, and that the case law does not make clear whether the bail jumping statute requires a showing of bad purpose or evil intent, as with crimes of moral turpitude. Appellant further maintains that a specific intent instruction was required because the purpose of the statute is “to punish intentional disregard or complete indifference to a notice to appear,” but not a negligent failure to appear.

Appellant’s arguments fly in the face of our decision in Patton v. United States, 326 A.2d 818 (D.C.1974). We held in Patton that a conviction under D.C.Code § 23-1327 for willful failure to appear requires a showing only of “what is commonly referred to as a general intent of the defendant to commit the act of omission,” and that “lack of an evil state of mind does not exculpate a bail jumping defendant.” Id. at 820. We also noted that section 23-1327(b), which provides that “[a]ny failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful,” is “irreconcilable with the contention that specific intent or an ‘evil mind’ is required; rather, the requisite intent is inferable from the omission itself.” Id.; see also Bethea v. United States, 365 A.2d 64, 87 (D.C.1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977) (“Only by inference can the existence of intent — or the differentiation between its forms, such as general or specific — be determined”); State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381, 383 (1972) (“Intent may be, and usually is, inferred from conduct”).

We held in Patton that a specific intent to violate the law is not an element of the offense of bail jumping. This is so because bail jumping is not a common law crime of moral turpitude (malum in se), but a statutory crime (malum prohibitum ) which we characterized in Patton as “regulatory in nature_” 326 A.2d at 820. To establish willfulness in a bail jumping case, all that the government must prove is that the defendant’s failure to appear in court when requested was knowing, intentional, and deliberate, rather than inadvertent or accidental. This is consistent with long-established case law in the District of Columbia on the meaning of willfulness:

It is only in very few criminal cases that “willful” means “done with a bad purpose.” Generally, it means “no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.”

Townsend v. United States, 68 App.D.C. 223, 229, 95 F.2d 352, 358, cert. denied, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121 (1938), quoting from American Surety Co. v. Sullivan, 7 F.2d 605, 606 (2d Cir.1925); see United States v. Illinois Central R.R., 303 U.S. 239, 242, 58 S.Ct. 533, 534, 82 L.Ed. 773 (1938), quoted in Patton, supra, 326 A.2d at 820. The trial court in this case instructed the jury that the government had to prove beyond a reasonable doubt that appellant “willfully failed to appear as required,” and that “an act is done willfully if done knowingly, intentionally, and deliberately.”⁶ Later in its charge the court told the jury that to have had the requisite intent, appellant must have “acted or failed to act consciously or voluntarily and not inadvertently or accidentally.” These instructions sufficed to inform the jury on the element of willfulness.

We also reject appellant's contention that the instructions were so confusing as to shift the burden of proof to him. After first stating that “an act is done willfully if done knowingly, intentionally, and deliberately,” the trial court specifically told the jurors that they “may infer” that appellant’s failure to appear was willful, but only if they found “that [he] had received notice of the date on which he was to appear before a court or judicial officer and that he failed to appear on that date....” In its very next breath the court cautioned the jury, “You may not infer that he willfully failed to appear, however, if, after considering all of the evidence, you find that his failure to appear was not willful.” The court’s instructions on willfulness must be reviewed “not ... in artificial isolation, but ... in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citation omitted). Applying this standard, we are satisfied that the instructions, considered as a whole, made clear that the burden of proving beyond a reasonable doubt each element of the offense, including willfulness, remained at all times with the government.

The instructions here are not comparable to those which have led the Supreme Court in some cases to reverse convictions on the ground that they shifted to the defendant the burden of proving his or her state of mind. For example, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the jury was specifically instructed that if the prosecution established that a homicide was intentional and unlawful, malice aforethought was to be “conclusively” implied; the defendant then had to prove by a preponderance of the evidence that he acted in the heat of passion with adequate provocation in order to reduce the charge from murder to manslaughter. Thus there was no real dispute that the burden of proof shifted to the defendant. Similarly, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), involved a conclusive presumption of intent, which effectively eliminated the element of intent from the offense of “knowingly converting” government property. In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Court held that a reasonable juror could interpret the instruction “the law presumes that a person intends the ordinary consequences of his voluntary acts” as a mandatory finding of fact. Id. at 515, 99 S.Ct. at 2454. The Court implied, however, that a permissive inference to that effect — as opposed to a presumption — would pass constitutional muster. The instant case involves a permissive inference, not a presumption. See also County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); Tucker v. Francis, 723 F.2d 1504, 1517 (11th Cir. 1984).⁷

Our dissenting colleague suggests that the statutory inference of willfulness vanished from the case when appellant put on his defense. We cannot agree. Accepting the dissent’s definition of prima facie evidence as “evidence good and sufficient on its face until rebutted or contradicted,” post at 186, we think it is for the trier of fact to decide whether the proof offered by the defense rebuts or contradicts the government’s prima facie evidence. The mere presentation of a defense does not dispel the statutory inference or cause it to drop out of the case, as the dissent maintains, post at 189, for the jury is always free to accept or reject the defense evidence. If the jury accepts it, the defendant is acquitted; if the jury rejects it, the statutory inference remains in the case and provides a sufficient basis for a verdict of guilty. But it does not compel a verdict of guilty; “prima facie evidence is only evidence, and as such may be held by the jury insufficient to make out guilt.” Bailey v. Alabama, 219 U.S. 219, 248, 31 S.Ct. 145, 154, 55 L.Ed. 191 (1911) (Holmes, J., dissenting) (citation omitted). The instructions in this case, we think, made that clear to the jury.

Affirmed.

1 . The parties stipulated to the authenticity of each of the documents.

2 . The parties stipulated to the authenticity of appellant’s signature.

3 .Appellant’s mother, with whom he lived at 636 I Street, S.E., corroborated his testimony that the mailbox had been broken into and damaged. Because of this, she testified, she had rented a post office box.

4 . Since the trial took place in January 1984, this would mean that no mail for appellant had come to the Park Road address since at least January 1982.

5 . E.g., McClain v. United States, 460 A.2d 562, 567 (D.C.1983); Byrd v. United States, 388 A.2d 1225, 1229 (D.C.1978); Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

6 . Criminal Jury Instructions for the District of Columbia, No. 3.06 (3d ed. 1978).

7 . The decision in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), turned on congressional intent and the Court’s interpretation of “knowingly” in 7 U.S.C. § 2024(b) (1982). The case did not present a constitutional issue.