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Complicity and gun crimes

Back in March, the Supreme Court decided Rosemond v. USRosemond and a co-defendant had gone to make a drug deal, but the prospective buyer, instead of paying, punched the co-defendant in the face and took off running, whereupon the co-defendant pulled a gun and fired off some shots.  Rosemond was convicted under 18 USC 924(c), which prohibits using or carrying a gun during a drug trafficking crime, but the Court reversed his conviction because the trial court didn't instruct the jury that it had to find Rosemond had advance knowledge that his co-defendant had a gun.

When I discussed the case, I pointed out that the Court's opinion wasn't based on its interpretation of the Federal statute, but on common-law principles of intent and aiding and abetting, and suggested it might have some application to Ohio law.  The 8th District came to the same conclusion last week in State v. Shabazz.

Shabazz was charged, along with Dajhon Walker and Otis Johnson, with aggravated murder in the killing of Antwon Shannon during an altercation in a nightclub.  Johnson pled out to felonious assault, and was given community control sanctions.  Walker was the shooter, and as I mentioned yesterday, last week another panel vacated his conviction for aggravated murder, finding no evidence of prior calculation and design.  That decision benefited Shabazz, or course, but that still left him with a conviction of felony murder, based on the underlying offense of felonious assault:  shooting Shannon with a firearm. 

In deciding that issue, the court looks extensively at Rosemond.  The judge there had instructed the jury that it could convict Rosemond if it found that he knew the co-defendant had used a firearm in the drug trafficking crime, and that Rosemond had "knowingly and actively participated" in the drug trafficking crime.  Not enough, said SCOTUS:  it held that the jury should have been instructed that it had to find that Rosemond had knowledge that his co-defendant had a gun in sufficient time to withdraw from the crime.  In short, "defendant's knowledge of a firearm must be advance knowledge."  In a 2-1 decision, the court in Shabazz finds the evidence didn't support the theory that Shabazz had knowledge that Walker had a gun.

That call was made much easier by the fact that the entire incident was captured by the club's video surveillance system:  it showed the trio being patted down when entering the club, lending credence to a claim that Shabazz wouldn't have known about the gun, and Walker retreating behind a pillar on the floor and shooting Shannon while Shabazz is walking away from the altercation.

The opinion says that "a review of Ohio case law shows that foreknowledge of the gun has generally been applied in cases in which a defendant is found to be complicit in felony-murder with a firearm."  True that, but all of the cases involve cases in which the conviction was upheld; the majority is left with the task of distinguishing them, which it does for the most part successfully.

As I said when discussing Rosemond, the case (and Shabazz) aren't a universal get-out-of-jail-free card for anyone accused of complicity with a gun crime; in fact, it may be of limited value, because many crimes, especially aggravated robbery, contemplate the use of a gun.  Still, Shabazz is a must-read for anyone defending someone charged with a gun crime on a complicity theory.


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