Request an escalation instruction when the government argues that the defendant forfeited his right to self-defense by provoking a conflict

Brandon Andrews v. United States (decided October 22, 2015).

Players:  Associate judges Glickman and Fisher, Senior judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Andrews.  Trial judge:  Robert E. Morin.  

Facts:  Brandon Andrews was convicted of second-degree murder, ADW, and related weapons offenses for the shooting death of his ex-girlfriend’s brother, Leonard Bigelow.  He contended that he shot Mr. Bigelow in self-defense when he went to the Bigelow home to talk to his ex-girlfriend, and Mr. Bigelow charged towards him with a knife while he stood on the street.  The government introduced evidence that, three days before the shooting, the decedent had pulled a knife on Mr. Andrews and threatened to kill him if he did not leave his sister alone, and that on the night of the shooting, the decedent warned Mr. Andrews over the phone that he would be waiting for him if Mr. Andrews tried to visit her.  At the government’s request, the trial court instructed the jury, in accordance with Redbook Instruction 9.504(A), that “[o]ne who deliberately puts himself in a position where he reasonably believes that his presence will provoke trouble cannot claim self-defense.”  Mr. Andrews argued that there was no factual basis for this instruction. 

Issue:  Was there a factual basis for the jury to find beyond a reasonable doubt that, by going to the Bigelow home, Mr. Andrews deliberately provoked the fatal conflict and thus forfeited his right to self-defense?        

Holding:  Yes.  “[T]he jury readily could have found that appellant deliberately chose to risk a deadly confrontation with [the decedent] by placing himself in a position where his presence would be likely to provoke exactly that,” based on the decedent’s threat three days earlier and the decedent’s warning on the night of the shooting that he would be waiting for Mr. Andrews.        

    

Of Note: 

• The Court rejected the argument that Mr. Andrews had regained his right to self-defense by disengaging with the decedent after the decedent pulled a knife and threatened him three days before the shooting.  It noted that Mr. Andrews “continued to pester” his ex-girlfriend, that that the decedent’s warning that he would be waiting for Mr. Andrews could be construed as “a renewed threat . . . of physical violence.”

• In Footnote 22, the Court left open the possibility that Mr. Andrews might have been entitled to an “escalation instruction” that would have told the jury that even if Mr. Andrews provoked a confrontation, he regained the right to self-defense if the decedent’s “reaction was disproportionate to the provocation; that it was unforeseeable, in other words, that [the decedent] would employ (as appellant allegedly perceived) more than non-deadly force against him.”  Because Mr. Andrews did not request such an instruction, the Court did not reach the question.

How to Use:

Request an escalation instruction if you have a case where the government argues forfeiture by provocation.  An escalation instruction will help to limit the extremely broad language of the provocation instruction and allow you to argue that your client had the right to defend himself against deadly force even if he provoked a non-deadly conflict.  MW

Read full opinion here.

 

Defendant Is Entitled To Show That He Is Afraid Of His Big Sister

David Travers v. United States (Decided October 8, 2015).

Players: Judges Glickman, Beckwith, and Senior Judge King. Opinion by Judge King. Dissent by Judge Glickman. PDS for Mr. Travers. Trial Judge: Stuart Nash

Facts: Mr. Travers lived with the complaining witness, who happened to be his older (elderly) sister. One October day in 2012, Mr. Travers and his sister got into an argument over a female companion Mr. Travers had in his room. That night, Mr. Travers’ sister called the police complaining that Mr. Travers hit her during the course of the argument. Mr. Travers voluntarily left the apartment. Mr. Travers returned home early the next morning and went to his sister’s room to check on her. She was in bed with her boyfriend. Mr. Travers’ sister started fussing again about his female friend, and so Mr. Travers attempted to exit the room, telling his sister to go back to sleep, they would talk about it later. As he was leaving the room, Mr. Travers heard his sister yell, “Get him,” and her boyfriend got up from the bed and started at him. Mr. Travers grabbed a nearby golf club and started swinging. The room was dark. He hit his sister.

At trial, Mr. Travers testified that he and his sister had a good relationship (except when she was drinking). Mr. Travers also testified about the hostile relationship he had with his sister’s boyfriend (who had previously threatened him). The defense sought to question Mr. Travers and his sister about prior occasions in which the sister had “assertively induced” friends to attack family members under the theory that it was reasonable for Mr. Travers to believe he was in danger when his sister told her boyfriend to “get him.” The court precluded the line of questioning, holding it amounted to impermissible propensity evidence.

Issue: Did the trial court abuse its discretion by excluding this line of inquiry?

Holding: Yes. The Court held that a “defendant’s knowledge of a victim’s prior bad acts or reputation for violence is relevant to the reasonableness of the appellant’s state of mind when assessing a claim of self-defense.” Here, knowledge that Mr. Travers’ sister had previously induced friends to attack family members would have been relevant to Mr. Travers’ “perception that he was in danger.” Thus, the Court reversed, holding there was a “real possibility” that the jury “could have rendered a different verdict” if this line of questioning had been admitted.

Notes: The dissent did not really quarrel with the notion that had Mr. Travers’ sister previously instructed friends to attack family members, such evidence would be relevant to a self-defense claim. Instead, the dissent took issue with the “skimpiness” of the defense’s proffer, arguing that the trial court conducted a thorough inquiry and that it was within its discretion to find that the proffer lacked legitimate probative value.  DH

Read full opinion here.

Use this case when you want an evidentiary hearing on your Jencks request

Josue Lopez Ambrocio v. United States (decided October 1, 2015).

 

The players: Associate judges Thompson and Beckwith, Senior Judge King.  Opinion by Senior Judge King.  Jamison Koehler for Mr. Ambrocio.  Trial judge: Richard H. Ringell.  Reviewing judge: John Ramsey Johnson.

Facts:  Trial testimony in this DUI/leaving after colliding case established that the government’s key civilian witness had been interviewed by an unidentified police officer twice on the night of the incident.  The first interview was in person and the second interview was over the phone, and lasted for fifteen minutes.  Defense counsel alerted the court that if notes were taken in the second interview, the District was required to produce them as Jencks material.  The court deferred ruling on the issue.  When the defense renewed the request in a motion for a judgment of acquittal, the prosecutor responded that she had turned over all of the notes in her possession and did not believe that any notes of the second interview existed.  The court ruled that the existence of any notes from the second interview was speculative. 

Issue:  Whether the trial court erred by failing to hold an evidentiary hearing to determine whether any Jencks material existed, when the defense alerted the Court to “the possibility” that a police officer took notes during the interview with the government witness.

Holding:  Yes.  To implicate Rule 26.2, the District’s version of the federal Jencks Act, 18 U.S.C. § 3500(b), the moving party need only establish a “reason to believe that a statutory statement may exist.”  Slip op. at 8 (quoting Johnson v. United States, 800 A.2d 700 (D.C. 2002)).  If the nonmoving party is unable to produce the statement, the trial court is required to hold an evidentiary hearing to determine whether the statement exists.

Of note:

• The prosecutor’s statement that she did not believe any further police notes existed was insufficient to negate the defense’s right to an evidentiary hearing: “The nonmoving party’s lack of knowledge of the statement does not alone establish that the statement does not exist.”  Slip op at 8 (citing Johnson, 800 A.2d at 701). 

• The defense was not required to prove that a written statement existed.  It was enough to establish that a police officer may have taken notes during the second interview with the witness, which was conducted by telephone.  NG

Read full opinion here.