Wooden v. United States

6 A.3d 833, 2010 D.C. App. LEXIS 601, 2010 WL 4237618
CourtDistrict of Columbia Court of Appeals
DecidedOctober 28, 2010
DocketNo. 07-CF-308
StatusPublished
Cited by13 cases

This text of 6 A.3d 833 (Wooden v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wooden v. United States, 6 A.3d 833, 2010 D.C. App. LEXIS 601, 2010 WL 4237618 (D.C. 2010).

Opinion

FERREN, Senior Judge:

The Second Amendment provides in part: “... the right of the people to keep and bear Arms, shall not be infringed.” 1 In this case, appellant contends that her conviction for carrying a dangerous weapon (CDW)2 — a knife — should be reversed because the court’s instruction to the jury violated the Second Amendment. How? By permitting the jury to convict if appellant “intended to use the [knife] as a dangerous weapon,”3 even if her only purpose was to have it ready for “lawful self-defense.” 4 Because appellant did not make this claim at trial, both parties agree that we review for plain error.5 Finding none, we affirm.

I.

The altercation at issue occurred between appellant, Stacia Wooden (the wife of John Cunningham), and Victoria Thomas (Cunningham’s former girlfriend, with whom he had a daughter). The animosity between them was attributable primarily to appellant’s learning that Thomas was still sexually involved with Cunningham. That led to a fight between them in late March of 2005, when Thomas, according to her own testimony, saw “a knife on the ground” and “picked the knife up,” but “stopped” after Cunningham’s mother intervened and “cut her finger” on it.

Tempers cooled over the next two months, but the animosity flared up as a rivalry developed between appellant and Thomas over caring for Cunningham’s grandmother, Emma Cunningham. According to the government’s evidence, on May 28, 2005, appellant was speaking with Emma over the telephone, insisting that she get ready for “day camp” (an elder care program), when Thomas, already at Emma’s house, intercepted the call from a hall telephone. That morning, Emma had told Thomas that her “heart hurt,” and [835]*835Thomas assured her, after appellant’s call, that Thomas would take Emma to the hospital. As Thomas was going downstairs to retrieve her car, appellant entered the foyer through the front door. The two began to argue: appellant for day camp, Thomas for the hospital. Thomas stepped toward appellant, who then threw hot coffee on Thomas’s face. A physical struggle began, and the women carried the fight outside onto the porch.

According to the neighbor from next door, Linda Durett, the two were leaning against a brick half-wall that divided grandmother Emma’s house from Durett’s. Durett saw that Thomas “was bleeding from her forehead” and that appellant had “a little knife in her hand.” Durett screamed. John Cunningham’s brother, Jamel McCormick, came out of the house and took the knife from appellant, whereupon Durett’s son, Troy, came out of his house and broke up the fight.

II.

Under the CDW statute, as the jury was instructed,6 a defendant may be convicted for knowingly and intentionally carrying a deadly or dangerous weapon, openly or concealed on or about the person, with an intent to use it as a dangerous weapon— even though the intended dangerous use is limited to an anticipated need for self defense. Wooden expressly concedes this. According to his opening brief, “at the time of trial it was clearly settled that a defendant to a CDW charge could not claim self-defense to justify possession of the weapon before the need for self-defense arose”;7 the law “clearly supported” 8 the judge’s CDW instruction to the jury. To explain that acknowledgment, counsel for Wooden cited this court’s 1982 decision in McBride, in which we said: “A person who possesses a ‘dangerous weapon’ in good faith anticipation of a need to use it in self-defense may be guilty of a general-intent weapons offense,” such as CDW.9 Accordingly, Wooden did not challenge the CDW instruction at trial because counsel perceived no statutory grounds for doing so.10

Because we review for plain error, the question presented is whether the Second Amendment “clearly” or “obviously” incorporates a right to carry a dangerous weapon, here a knife, with an intention to use it only, if necessary, for the lawful purpose of self-defense. Put another way, is it clear or obvious that the Second Amendment trumps McBride’s observation that carrying a dangerous weapon solely for purposes of anticipatory self-defense is unlawful?

In District of Columbia v. Heller11 the Supreme Court held that the District of Columbia’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” 12 The Court concluded that the [836]*836Second Amendment “guarantee^] the individual right to possess and carry weapons in case of confrontation,”13 and it stressed that self-defense is “the central component of the right itself.”14 Moreover, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”15

On the other hand, the Court recognized limitations:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-cen-tury cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [Citations omitted.] For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.[16]

Furthermore, the Court appeared to agree with an earlier decision, United States v. Miller,17 to this extent: “the sorts of weapons protected were those ‘in common use at the time,’ ”18 a limitation “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”19 Thus, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right[.]”20

III.

Although appellant’s trial preceded Heller, all parties agree that, in evaluating plain error, the Supreme Court’s decision in Johnson v. United States21 controls: [837]*837“where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.”22 Appellant acknowledges that the CDW instruction pursuant to which she was convicted reflected settled law and argues that it is clearly contrary to Heller, now applicable to her case.

Appellant argues more specifically, in light of Heller, that reversal and remand are required to permit the trial court to fashion jury instructions recognizing that (1) a knife, like a gun, is entitled to Second Amendment protection — even when intended for dangerous use — if held solely for purposes of self-defense; that (2) although “dangerous and unusual weapons”23

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Cite This Page — Counsel Stack

Bluebook (online)
6 A.3d 833, 2010 D.C. App. LEXIS 601, 2010 WL 4237618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wooden-v-united-states-dc-2010.