DCCA holds that a homicide defendant who was being shot at by the decedent’s associates was not entitled to a self-defense instruction for shooting the decedent because there was no evidence that the decedent himself was armed.

Photo by Earl via Flickr (CCL).

Katrell A. Henry v. United States, No. 12-CF-1152 (decided July 10, 2014)

The Players: Glickman, Thompson, Reid.  Opinion by Judge Thompson.  PDS for Mr. Henry.  Trial judge: Lynn Liebovitz.

The Facts:  The government’s main witness, Joseph Nelson, testified that he saw Mr. Henry and Laroy Bryant, the decedent, arguing in a parking lot. Nelson could hear that Bryant was using profanity and insulting Henry but could not hear Henry’s response; Nelson did not see anything in either’s hands.  Nelson saw Henry retreat toward the apartment building and Bryant walk toward a group of people hanging out by a dumpster; shortly thereafter, however, Henry returned with a gun and he and Bryant resumed arguing.  Nelson testified that he saw Henry “stumble back as if he had been pushed,” then raise his gun and begin shooting at Bryant’s leg, at which point several of the people by the dumpster began firing at Henry.  Nelson equivocated as to who fired the first shot, telling the prosecutor on direct and redirect that Henry shot first but stating on cross-examination that he did not know who had started the shooting. 

Henry testified in his own defense.  He stated that, weeks earlier, Bryant had threatened him with physical harm because Henry had informed Bryant’s new love interest (who was the mother of one of Henry’s children) that Bryant was a drug dealer and was rumored to have HIV.  Being “deathly afraid” of Bryant and his “boys,” Henry had tried to avoid him, began looking for a new place to live, and also began carrying a gun.  On the night of the shooting, he inadvertently encountered Bryant, who began “cussing” at and threatening him.  Although Henry initially ignored the insults, when Bryant called to him, Henry walked over and said he had had “enough of” the “bullshit.”  Bryant then pushed him with two hands; as Henry was falling backwards, he saw two of Bryant’s “boys” by the dumpster pull out guns and begin firing at him.  Henry testified that he was shot before he even had his gun out of his pocket.  He then fired three or four shots toward the shooters near the dumpster, who fired a couple shots back and then ran away.  According to Henry, he never fired in Bryant’s direction; rather, it was actually Bryant’s “boys” who shot and killed Bryant. 

Defense counsel requested a self-defense instruction on the theory that Henry could have reasonably believed that shooting Bryant would cause Bryant’s associates by the dumpster to cease shooting at him.  The trial court rejected that argument and instructed the jury that the self-defense instructions applied only to Henry’s shooting toward the people by the dumpster, not to his shooting of Bryant.  On appeal, the defense presented a slightly different self-defense theory: that a self-defense instruction was required with respect to Bryant because there was evidence from which the jury could infer that Henry actually and reasonably believed that Bryant was about to shoot him.

Issue:  Did the trial court err in refusing to give the requested self-defense instruction because the jury could have reasonably believed, on the evidence before it, that Bryant was “about to join in the affray” and “was about to start shooting as well”?

Holding:  No.  Although there was evidence from which the jury could infer that Henry actually and honestly believed that his life was in danger, there was no evidence from which it could infer that he reasonably believed that Bryant “was about to start shooting him” because there was no evidence that Bryant was armed.  Although Henry had seen Bryant with a gun a few years before, and Bryant was also a known drug dealer, the court concluded that those facts did not support a conclusion that Bryant was armed at that moment.  

Of note: 

·       Although Henry’s self-defense theory on appeal differed slightly from the theory he presented to the trial judge, it was properly preserved; because Henry presented the instructional claim to the trial court, he could make any argument in support of that claim on appeal.

·       Practice tip:  Remember, the law says that a defendant is entitled to a defense theory instruction so long as the requested instruction “is supported by any evidence, however weak.”  Higgenbottom v. United States, 923 A.2d 891, 899 (D.C. 2007). The court’s decision that Henry was not entitled to a self-defense instruction is very fact-specific, so defense lawyers should attempt to cabin Henry to its facts. CM

Read the full opinion here.