David A. Shepherd v. United States (decided August 4, 2016)
Players: Associate Judges Fisher and Thompson, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Shepherd. Trial Judge: Russell F. Canan.
Facts: Mr. Shepherd was convicted for shooting to death a new acquaintance, Henry Charles Miller, after a heated exchange of words. Mr. Shepherd claimed self-defense, testifying that Mr. Miller pulled a gun on him after the argument, that he then grabbed the gun, and that it went off during the ensuing struggle. Several eyewitnesses testified to the contrary that Mr. Shepherd produced the gun and shot Mr. Miller in the face at close range. To support its contention that Mr. Miller was the first aggressor, the defense was permitted to introduce evidence that he recently had been convicted of attempted robbery and misdemeanor assault. It was not permitted to introduce evidence that the assault conviction was for breaking into his ex-girlfriend’s house while highly intoxicated, tearing off her clothes, repeatedly slamming her head against a wall, spitting in her face, and hitting her in the head with a towel rod in front of her children.
Issue: Did the trial court abuse its discretion when it excluded the details of the decedent’s prior, violent assault on his ex-girlfriend?
Holding: No. While defendants in homicide prosecutions may be permitted to put on evidence of the decedent’s violent character to support a claim of self-defense, they do “not have an absolute right to introduce such evidence.” The trial court has “broad discretion” to decide how much and what type of first aggressor evidence the jury will hear and may exclude such evidence if its probative value is outweighed by the danger of prejudice. Factors to be considered in balancing the value of first aggressor evidence are: “[1] the form of proof (accusations or convictions), [2] whether presenting it would waste trial time or confuse the issues, [3] remoteness in time, [4] the decedent’s character in the interim, and [5] the ‘type’ of violence evidenced by the act.” Here, the Court of Appeals acknowledged that Mr. Miller’s prior assault “certainly” indicated he had a violent nature, and that the circumstances were similar to the charged shooting in that Mr. Miller was intoxicated at both times. Nevertheless, it held that the probative value of the prior assault was limited because the circumstances were otherwise quite different: an incident of domestic violence versus allegedly pulling out a gun and shooting someone Mr. Miller had just met. Moreover, the Court opined, the violent details of the prior assault did nothing to illuminate the sole fact truly at issue in this case: whether it was Mr. Miller or Mr. Shepherd who brought a gun with him to the scene where they met and argued. The risk that the jury would illogically conclude Mr. Miller brought the gun simply because of this persuasive evidence that he was a “bad guy” was substantial enough to justify the trial court’s exclusion of the prior assault details.
Of Note:
- The Court acknowledged the difficulty of balancing probative value against prejudicial impact for specific instances of violent conduct by the decedent. Such evidence, it observed, is both the most convincing character evidence and the most likely to cause prejudice, confusion, surprise, or a waste of courtroom time.
- The Court also considered Mr. Shepherd’s claim that the trial court erred in issuing, after the government mischaracterized several points of evidence in its rebuttal argument, only a standard curative instruction that the jury’s recollection controls. While the Court agreed that the prosecutor misstated the evidence and warned that “it is vital for a prosecutor to choose her words carefully” lest she “needlessly jeopardize convictions,” it deferred to the trial court’s conclusion that the statements at issue here were not “such a mischaracterization of the record to warrant any further remedy.” FT
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