Lack of retreat before imminent danger of death or serious bodily injury arose deemed irrelevant to defendant's self-defense claim.

Dawkins v. United States (decided July 26, 2018)

Players: Associate Judges Glickman, Easterly, and McLeese. Opinion by Judge Easterly. PDS for Mr. Dawkins. Trial Judge: Russell Canaan.

Facts: 
Mr. Dawkins was convicted of voluntary manslaughter after a jury trial. Evidence showed that he encountered a stranger, Mr. Cheek, early one morning, after both men had been out drinking. The two struck up a conversation. They had decided to go to a gas station to buy cigarettes, when the decedent, also unknown to Mr. Dawkins, drove up and asked whether Mr. Cheek was okay. Mr. Cheek said he was fine and to “go ahead,” but the decedent did not. After Mr. Dawkins asked the decedent to leave, the two got into an argument. The decedent got out of his car and went to the back of it. Mr. Dawkins followed. After more yelling, the decedent punched Mr. Dawkins. Mr. Dawkins punched back and, in the ensuing fistfight, stabbed the decedent in the neck. Mr. Cheek tried to separate the two at some point before this happened. Afterwards, Mr. Dawkins fled. The decedent got into his car, drove into a building, and bled out before the paramedics arrived.

At trial, Mr. Dawkins claimed self-defense based on his mistaken belief that Mr. Cheek and the decedent were ganging up on him. The government argued that while not technically the “first aggressor,” Mr. Dawkins had “aggressively approached” the decedent’s car and charged to the back of it when the decedent got out. The government ended its opening statement by encouraging the jury, over defense objection, to think about what Mr. Dawkins could have done instead, such as walking away.

Afterward, the defense sought an instruction clarifying that Mr. Dawkins did not lose the right to claim self-defense simply by failing to retreat before the fight started. The defense proposed to instruct that the jury could consider whether it was possible for Mr. Dawkins retreat, only after he used nondeadly force to defend himself. The government objected and submitted its own proposal, which did not distinguish between the relevance of retreat at any point in the encounter. The government’s proposal further stated, consistent with Pattern Jury Instruction 9.503, that “a person should take reasonable steps such as stepping back or walking away to avoid the necessity of taking a human life, so long as those steps are consistent with the person’s own safety” and that the jury “should therefore consider whether [Mr. Dawkins] could have taken those steps consistent with his own safety.” The trial court adopted the government’s proposal over defense objection. In its rebuttal closing, the government again argued, over defense objection, that Mr. Dawkins could have avoided using deadly force by retreating when the decedent got out of his car.

Issue: Did the trial court reversibly err by failing to provide adequate instruction on the potential relevance of Mr. Dawkins’s failure to retreat from the decedent?

Holding: Yes. “[I]n assessing the reasonableness of a defendant’s actions in the context of a self-defense claim, and specifically the defendant’s ability to retreat, the jury’s proper temporal focus is the time at which a defendant employs deadly force or has possible justification (based on a reasonable belief that he is in imminent danger of death or serious bodily injury) to do so.” The trial court’s instruction, which allowed the jury to think that it “should” consider the ability to retreat at any point in the encounter, failed to adequately convey this principle. The instruction was not harmless given the government’s repeated suggestion that the jury could consider Mr. Dawkins’s failure to walk away before he had any possible justification to use deadly force.

Of Note: 

• The Court acknowledged that the defendant’s behavior before any possible justification for deadly force arises may be relevant to issues like credibility and provocation that were not present in Mr. Dawkins’s case.
• The Court took no position on the correctness of the version of D.C. Pattern Instruction 9.503 that was in effect at the time of Mr. Dawkins’s trial. WC.

Read the full opinion here.

Using flame to repel a trespasser is not necessarily unreasonable.

Jones v. United States (decided November 9, 2017)

Players: Associate Judges Glickman and Easterly. Senior Judge Pryor. Opinion by Judge Glickman. Rupa Ranga Puttangunta for the appellant. Trial Judge Ann O’Regan Keary.

Facts: Appellant, a homeless woman, regularly slept on a cardboard box on the floor of the McPherson Square metro station. One night, she set her box close to homeless man, who told her that he “didn’t want her there” and proceeded to kick appellant and put his feet on appellant’s box after appellant lay down. Appellant asked several times for the man to remove his feet and when he would not, appellant lit the corner of the box closest to appellant’s feet on fire. The box did not burst into flame, but rather burned slowly like a cigarette. When the man did not move his feet, appellant extinguished the fire so that the man’s feet would not burn. Following a bench trial, a judge found appellant guilty of simple assault and attempted possession of prohibited weapon. The judge rejected appellant’s defense of property justification, reasoning that the force applied—fire—was not reasonable.

Issue: Was there sufficient evidence to support appellant’s convictions and overcome appellant’s defense of property justification? Was appellant’s use of force in lighting her cardboard box on fire unreasonable?

Holding: No. Appellant repeatedly requested that the man move his feet before igniting the box, which was for legal purposes her bed. No officers were around to help. Appellant neither harmed nor attempted to harm anyone in the process. The fire was too small and slow progressing to pose a risk to the trespasser.

Of note: Jones marks the second time in 2017 that the Court of Appeals rejected the notion that a certain kind of force (fire) was so unreasonable as to negate a justification defense. In the first case, Parker v. United States, 155 A.3d 835 (D.C. 2017), the Court found that spitting was not an unreasonable response to being threatened and spat upon. These cases reaffirm the government’s burden to prove that the force applied in a given case was not reasonably necessary under the circumstances as they appeared to the defendant. WC

Read the full opinion here.

Conviction Affirmed Based on Proof of Motive and Discredited Defendant Testimony

Dominique Bassil v. United States (decided October 6, 2016).

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Belson.  Opinion by Judge Glickman.  PDS for Ms. Bassil.  Trial Judge Robert E. Morin.

Facts: Ms. Bassil was tried and convicted for second-degree murder after stabbing her boyfriend, Vance Harris, in the kitchen of their apartment sometime after 2 A.M. on August 13, 2011. Three weeks before the homicide, Ms. Bassil had threatened to evict Mr. Harris for spending money on a trip to Miami instead of contributing to the rent. Later, she texted that she would “fuck [Mr. Harris] up if [he didn’t] stop playing with [her].” On August 12, at a wedding reception, Ms. Bassil became agitated when Mr. Harris ignored and ridiculed her and danced with other women. Ms. Bassil yelled, hit Mr. Harris, and called him names. Police later encountered Ms. Bassil sitting outside of Mr. Harris’s truck in Capitol Heights, MD, on the couple’s way home from the wedding. Ms. Bassil later told homicide detectives that Mr. Harris had physically abused her but recanted this allegation at trial.

Early the next morning, Ms. Bassil left the apartment and told building security to call an ambulance or police because she had stabbed her boyfriend.  When police came, she said Mr. Harris had come into their bedroom, hit her in the face and neck, dragged her out of bed, and cornered her in the kitchen, where she stabbed him to escape. She said she had to stab Mr. Harris because he was pushing and choking her. Her later statements to police and the jury differed as to how the incident began and ended and were undermined by Mr. Harris’s stature, injuries, and level of intoxication, testimony about the lack of injury to Ms. Bassil, and testimony about the scene.

Issue: Whether the evidence was sufficient to prove that Ms. Bassil did not act in self-defense.

Holding: Yes. Even crediting Ms. Bassil’s testimony, she never claimed her life was in danger from Mr. Harris and given her failure to flee during the purported attack, the jury could have found that she did not fear for her life or that any such fear was objectively unreasonable. Evidence of Mr. Harris’s size, intoxication, and injuries, the lack of injury to Ms. Bassil, and the crime scene, as well as direct evidence of motive (e.g., text messages and public outbursts) supported the government’s position that Ms. Bassil attacked Mr. Harris in the bedroom out of pent-up rage and that she later ambushed him in the kitchen for the same reason.  The jury could have found that Ms. Bassil’s statements about the stabbing and the events leading up to it were false in a way that implied consciousness of guilt. 

Of Note: Particularly in light of this opinion, advocates should be mindful of how client testimony may affect a possible sufficiency argument, when advising them on their right to remain silent or testify at trial.  WC

Read the opinion here.

Court Upholds Restricting Evidence of Decedent’s Violent Character to Bare Fact of Prior Conviction, Where Details Underlying Conviction Might Paint Decedent as a “Bad Guy”

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

Read full opinion here.

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.