*1 evidence obtained from his was ad-
missible because it resulted from a search Second,
incident to arrest. we conclude police, having begun
under Buie process arresting Harris in the
apartment’s hallway, proper- interior could
ly protective sweep make a of Harris’s (even though spe-
bedroom lacked
cific, suspecting articulable basis might
someone else was there who en-
danger safety), because the bedroom adjoining space
was an from which an at- might
tack be launched. Once inside the
bedroom, police lawfully seize the
guns and ammunition there because this in plain
evidence was view.
Accordingly, we reverse the order of the suppressing
trial court this evidence and proceedings.
remand this case for further
So ordered. COWAN, Appellant,
James STATES, Appellee.
UNITED
No. 90-CF-327. Appeals.
District of Columbia Court of
Argued Nov. 1992. July
Decided *2 a third defense of self-defense and on an in- requested never
person. Cowan respect to to that with struction as CPWOL, murder, or at- second-degree indeed, distribution; this rec- tempted on ord, has no conceivable an instruction such two offenses. Co- application to the latter judge to instruct wan did of another and defense jury on self-defense murder, sought but respect only judge these instructions abetting, as re- instructed The quested by prosecution. abetting instruc- aiding and gave never tion, Cowan the condition under which on self-de- the instructions of a third never fense and defense judge’s We conclude that the materialized. defenses was to instruct on these refusal error,” if the issue “plain preserved, error would had been been harmless. note, “[wjhen there sponte, sua
We may not killing, the defendant only one murder.” of more than one be convicted Greenlee, S. Defender Richard Public Thacker v. United Klein, Service, with whom James Public (D.C.1991). Accordingly, must remand we brief, Service, Defender for resentencing, directions for the case appellant. of Cowan’s trial court vacate one Brown, Mary-Patrice Atty., U.S. Asst. other re- In all two murder convictions. Atty. Jay Stephens, B. with whom U.S. spects, affirm. we filed, the time brief was and John R. brief, Fisher, Atty., Asst. U.S. were on I. appellee. ROGERS, FACTS Judge, and THE
Before Chief SULLIVAN, Associate SCHWELB November early morning hours of In the Judges. drug under- 20, 1986, city’s in this macabre out, world, snuffed young one life was SCHWELB, Judge: Associate effectively ruined. James were two others was convicted Cowan years of eighteen then (“Wop”) Cowan was armed, 22- while D.C.Code murder §§ codefendant, Giles, Cowan’s age. Sammie (1989), degree -3202 second guilty to sec- plea who later entered 22-2403, id.,1 carrying a pistol without a § prose- ond-degree and became 22-3204, (CPWOL), and at- license id. § witness, only sixteen. lead cution’s cocaine, id., distribution of 33- tempted § events account of relevant Giles’ 541(a)(1)(1988). He seeks reversal all of cheap- trial was a testament ground Cowan’s convictions, primarily these he and milieu in which ness life trial refused to instruct the original charge judgment acquittal on the granted trial a defense motion moved;2 banality episode guy” put Cowan had shot the after “the decedent pocket. unremitting underlines its horror. his hand in his Two teen-agers walked out into streets of evidence, presented no but city with cocaine to sell and a loaded credibility vigorously attacked pistol guard drugs money. prosecution attempted witnesses and *3 victim, prospective buyer, ap- Their a was show, testimony, that it through their was argued parently shot dead because with Giles, Cowan, who shot Knox. and not placed pocket. Giles and his in his hand alleged discrep- impeached Giles was with Realistically, told, we are he who draws testimony ancies his trial and the between may in an last such encounter not survive. provided accounts which he had to the grand jury judge to the took his and who Giles, According to he and Cowan were plea; acknowledged he also that he some- apartment, watching at Giles’ the movie handgun.4 times a The murder carried packaging “Scarface” and crack cocaine weapon had recovered under a mat- been They for left apartment sale. the to mar- apartment; according tress in Giles’ to Ms. ket the in of courtyard crack the the com- Duvall, however, and both Giles Cowan plex. Cowan, drugs; Giles carried the who stayed was in room where it found. the provide protection, was to there was armed with a loaded .38 revolver. caliber impeached Ms. Holcomb was with her decedent, Knox, Anthony approached Giles grand testimony Giles that it was who dispute apparent- asked cocaine. A shooting alleged did the and with other (or ly price possibly arose the over the in Her her accounts. credi- inconsistencies quality) drugs. the of Knox reached in his bility challenged the basis of was also pocket “give said everything.” me drug possible her her motivation to use and Giles testified that told him Cowan to in curry connec- favor with “duck, soldier,” and then shot Knox.3 Ac- drug charges. Ms. Du- pending tion with Giles, fled; cording to youths two Co- allegedly in- impeached vall with was also in wan then stuck a Giles’ revolver mouth she, too, statements; prior ad- consistent reported and threatened to if he shoot Giles used in mitted that she cocaine November what had occurred. sup- 1986 and that Giles sometimes Sammie plied drugs. her with testimony sup-
There was additional to port prosecution’s theory Cowan, prosecution’s At the conclusion Giles, case, judg- Sixteen-year-old shot counsel not Knox. moved Duvall, (MJOA). Tina Giles’ ment The defense acquittal cousin and Cowan’s for- of girlfriend, argued, respect mer murder young testified that with to the apartment together, charges, men self-de- had left that Cowan had acted carrying Upon Cowan motion as to judge a revolver. fense. The denied the following shooting, except first-degree according return all murder. counts Duvall, judge Ms. respect charge, Cowan said that he “shot With to that guy proved not getting ready prosecution because he was to stick ruled MJOA, up [my] premeditation. granted one of soldiers.” Lillian He but Holcomb that, although high drugs, testified she referred offense of sec- the lesser-included ond-degree jury. had witnessed the Cowan murder degree premeditated body, police of first discovered the decedent’s murder. 3. When pocket. Also in that his in his hand was still pocket was a hammer. trial, 2.By of Giles the time Cowan’s had also guilty plea of entered a to a second charge rape pending against received he had a of armed 4. The contended that Giles Maryland. charge not plea him in A murder offer because he was re- second favorable against carrying quired plead Cowan was severed from this one. The armed offense during mandatory penalty. responded Cowan activities of and Giles the autumn minimum Giles thirty years are also Belton was not described in v. United that he faced and that this (D.C.1990). "sweet deal.” Knox, who shot if was closing argument, Prior the court and in the discussions, aiding which Cowan extensive cocaine, and was attempted II in Part of this distribution are described detail Based on respect felony murder murder. opinion. guilty With thus count, agreed theory, applica- instruct alternative count, requested by government, on jury, murder only to the ble abetting, essentially on the theo- to instruct prosecutor participated ry that if Cowan the at- respect to the law distribution, tempted he could be convicted abetting. even if it Giles who objected, without attorney Cowan’s agreed to the shot Knox. The reason, prosecution’s alternative that, (but only if) grand presented theory had been *4 given, aiding abetting were and instruction invoked at trial. and now be jury could not instructed on self-defense and be if, if, only also but Counsel person. defense of third aiding and abet- judge instructed presented closing ar- counsel When jury, that he instruct the with ting, however, attorney made gument, Cowan’s count, as to respect to the murder or no mention self-defense person. aof third self-defense and defense Indeed, person. entirely third focused aiding of an instruction on the absence Giles, Cowan, theory was in- abetting, defense wanted no and discussion, After further the shooter. or de- on self-defense whatever struction he would not instruct decided that person. of a third respect aiding either and strategic reasons There were obvious abetting respect to or or with counsel’s caution. which dictated defense person. of a third Cowan was understandably appre- attorneys Cowan’s remaining on all four counts. convicted that, empha- if these defenses were hended appeal This followed. sized, might that Cowan assume shooter, might this dilute and that was II. theory from the and detract basic REQUEST
THE IN- DEFENSE FOR shot the who it was Sammie Giles STRUCTIONS ON SELF-DEFENSE Indeed, one of Cowan’s attor- decedent. A PAR- AND DEFENSE OF THIRD neys acknowledged her concern: candidly TY is it makes problem with that I think the telling you sound like we’re the defense Background A. it, if think we did you do we didn’t but In order determine whether Cowan reason, and that then we have another preserved appeal question has sounds bad. should have instruct- whether been person, respective strategies employed for both sides. context ed seen, prosecution’s in which it is was that necessary or defense of a third basic issue arose and the Cowan shot to set forth the theory, as we Knox; (Emphasis jury’s eyes. we’re our [Self theory, because it makes [*] defense] trying added.) [*] shouldn’t pull [*] the wool [*] put it look like [*] over the being [*] impression, the defense and To avoid this was viewed as an aider abettor. there- defense, hand, very cautiously. Counsel was to tread on the other Cowan’s strategic important deci- was fore made Giles was the Cowan First, would seek innocent, the defense prosecution had not sions. and that the and defense on the instructions on self-defense present that Cowan was even proved re- prosecutor’s if government person only countered this de- third scene. that, quest aiding abetting theory for an fense with an alternative granted, then, was only and even gun as to James Cowan did not have a in his murder; prose- this was because the possession participate and did not in a aiding abetting request cutor’s And, drug then, transaction. the—if theory based on the that Giles did the only going the court to allow if shooting, potentially helpful and was thus Second, to Cowan’s basic defense. Co- on the then we’ll attorneys wan’s not want ask for the three instructions in the or- include defense of a third presented language der I pre- I person in his instruction on the defense sented. case; rather, wanted added). (Emphasis appear issue to to emanate from the judge, not from defense. fully understood, The trial parties agreed, counsel for both that the B. Closing Argu- Discussions Prior government’s request for an ment abetting instruction limited to the felo- It was the secondary theo- ny count, ry guilty Cowan of felony mur- —that instructions on self-defense defense of der as an aider or abettor even Giles did (and similarly a third limited were the shooting triggered defense coun- *5 —that aiding abetting conditioned on the sel’s limited for instructions on instruction): self-defense and defense of another: Well, THE they COURT: are asking degree THE COURT: Second for self-defense. only beyond if finds reason-
MR. [prosecutor]: COBB I don’t know. Cowan that able doubt that it was did the They THE shooting. are. COURT: n MS. SUPLER Your [defense counsel]: MR. COBB: Yes. Honor, only that be would the court if Now, THE COURT: as the allows the argue insofar give aiding I will give the aiding of it, theory abetting that theory felony murder. If shooting, the Cowan did the defendant’s the court theory doesn’t then no. Our shooting, that we did do the that Giles did but in shooting, there- fore, event, event, guilty any we’re not in any that reason Giles did the alone. And we need the shooting, wouldn’t self- did the or whoever it defense or a defense of other instruction. self-defense, was done either Because, remember, we asking are person person. the other Court not to couch it that the defen- right? All self-defense, dant used but if the shooter See, used perfectly self-defense. that’s MS. SUPLER: That’s correct. theory. consistent with our the court If added). (Emphasis doesn’t allow the and abetting argument by government, then we closing argument prior At no time don’t need those instructions because instruction on self- defense ask for an our we is that weren’t the shoot- a third defense or defense of Sammy er. It was Giles. respect other offense than (Emphasis added). Moreover, attorney Cowan’s em- murder. phasized that several times she did not judge expressed When the some bewild- given want these to be if the instructions erment, attorney explained Cowan’s that court did not instruct and abet- self-defense, “if Mr. Giles shot in and we ting. posture can This was the of the case guilty also be shooting, because his get then we closing argu- when counsel transferred self-defense delivered intent.” Counsel continued as follows: ments. added). Evidently, the defense (Emphasis Arguments and the Dis- Closing The C. been as it had the same request remained cussions that Followed closing argument. prior to closing argument, prose- During his however, prosecutor complained, Knox. He argued that Cowan shot cutor attorneys had not mentioned that Cowan’s however, jurors, also told closing argument, but that self-defense going to instruct them on inconsistently seek- nevertheless they were the shooter. that Giles was theory. Defense on that ing an instruction hypothesis, prosecutor ex- On immediately countered counsel were if the defendants plained prior to position which she taken same concert, guilty working in Cowan could be closing argument: murder as an aider abettor. Honor, posi- our Your MS. SUPLER: exchanges spite of the earlier between Sammy did the shoot- is that tion court and about ing. jury can find either Now the however, person, of a third Co- they there in which case we weren’t out attorney mentioned neither of these wan’s worry about going to need are present his when it was his turn to theories But could find self-defense. argument. final could find They there. were out [we] closing argu- Upon completion attem-pt distri- guilty that we’re
ments, attorneys revisit- Sammy and the but bution find and, question therefore, of the instructions. Cowan we ed claim that, during apparently5 position right takes the as well. have the should post-argument the course of these discus- added). (Emphasis sions, attorneys changed their his earlier that, if there indicated then position unconditionally and asked for in- instruction, *6 of and defense a structions self-defense theory part a of the defendant’s should be person, third whether or not the ulti- demurred, of the Defense counsel case. mately abetting. instructed on because The record him out. does bear they jury could find that theory of the defense. And our believe attorney suggested to the Cowan’s theory our they if choose not to believe judge, in connection with the murder Sammy Sammy, defense that of instruction, say pur- “the that court should it, that they could also believe shot then justi- posefully being kills a human without self-defense_ our client shot possible of fication because our self-de- judge responded The that “I fense case.” added). phrase The italicized (Emphasis you got know self-de- don’t fense_” where in which a represents the first occasion complained He by the claim was articulated aiding and the context of defense outside you’re saying. I don’t know what abetting. there, guy any- wasn’t that he didn’t do however, persuaded. judge, was not just thing, and did it. I don’t that Giles attorneys He indicated your position what is. know of a and defense did not want self-defense attorney explained Cowan’s part of the defendant’s person to third be case, not instruct theory in- would ask for the self-defense we would attorney remon- govern- those defenses. Cowan’s struction that we asked and [the] contending since she was theory after of defense strated that ment asked shooter, it “sound would instruction. because, abetting" judge's giving "aiding instruc- "apparently” an We use the word his court, altogether reply argument, in this Cowan failed At brief as murder. oral tion to government's position however, to sought govern- contest to refute the Cowan request for instructions on self-defense and de- on that issue. ment’s contentions person fense of a third were conditioned on the bad” to make an alternative He also declined to instruct on abetting. attorney of the case. The then argument made which Cowan Legal D. Considerations primarily now proof point relies as that his preserved: of Superior Rule 30 Court’s provides of Procedure Rules Criminal No, Honor, MS. Your SUPLER: be- pertinent part as follows:
cause when there —when self-defense is
party
assign
may
any por-
No
as error
case,
raised in a
when the defense has
charge
tion of the
or omission therefrom
prima
burden,
met
facie
which we
[its]
party objects
unless that
thereto before
here,
right
have
because we
verdict,
its
retires
consider
instruction,
then
becomes
ele-
an
stating distinctly the
matter
disprove.
ment
has to
party objects
grounds
and the
of So it
doesn’t have
be our
objection.
disprove
defense. But
still have to
it,
And, so,
because it has been raised.
objection,
timely
the absence of a
our,
say
the court shouldn’t
that it’s
may
only
plain
conviction
be reversed
theory.
it’s
States,
an alternative
it’s
Because
error. Watts v.
United
not.
an
govern- 706,
(D.C.1976) (en banc).
It’s
element that
708-09
Plain
And, so,
disprove.
ment must
contemplates
showing
it should error
a clear
of a
miscarriage
almost like
justice.
another element.
Hunter
(D.C.1992).
added).
(Emphasis
There is no evidence that Cowan
alone,
If
passage
might
stood
one
ever
instruction on
self-de
reach the conclusion that counsel had
regard
defense of another with
changed
previous position
her
and was now
murder,
charges
second-degree
at
asking for
cocaine,
tempted
distribution
or CPWOL.
second-degree
third
instructions
Such instructions have no conceivable rele
murder
well
as for
counts,
drug
weapons
vance
that she
wanted the
those
attorneys repeatedly
Cowan’s
disclaimed
independently of any question
instructions
any interest in self-defense or defense of a
of aiding
abetting.
On the
next
very
person in
third
relation to the second-de
page
however,
transcript,
Cowan’s
gree
charge.
Cowan’s
*7
attorney dispelled
notion,
any such
and re-
we reverse these three convictions is total
request
iterated that her
was
to
limited
ly lacking in merit.
felony murder and
still
on
was
conditioned
judge’s
instructing
position
appreciably
is not
His
more
aiding
abetting.
respect
proof persuasive
She stated that
to his
mur
not
done in self-
prior
der conviction. On several occasions
closing
defense or defense of
argument,6
another has become
defense counsel un
murder,
“another
ambiguously
they
request
element to the
stated
were
degree
ing
not to the second
murder because
instructions on self-defense and de
we
claiming
only
judge
aren’t
all
of a
if the
person
at
third
there_”
added).
(Emphasis
judge
gave
“aiding
abetting”
an
so,
ultimately
decided not
instruct
doing
at all
murder.
Cowan’s
or
of
person.
attorneys
a third
judge
invited the
not to instruct
309-10,
general,
requires
requests
In.
Rule
supra,
U.S.App.D.C.
30
for
282
at
894 F.2d at
prior
closing argu
1349-50;
Francisco,
instructions
submitted
see also
Ins. Co. v. San
Life
States,
774,
ment. Shreeves v. United
672, 679,
(17 Wall)
(1873).
84 U.S.
21
698
L.Ed.
(D.C.1978),
denied,
943,
786-87
cert.
441 U.S.
99
if
Even Cowan had
instructions after
2161,
(1979);
S.Ct.
503 inoperative, and that party position of a third had become on self-defense and defense requesting self-defense and they were now aiding abetting if instruction was no person third instructions un- especially to defense of a given. are reluctant Courts and across the board. Since plain conditionally “invited.” for error when is reverse gave aiding never an or Mangieri, U.S.App. judge 224 United States 305, 1270, (1982). instruction, upon which Cowan’s 295, the event 694 F.2d 1280 D.C. request conditioned never instructional closing argument, attor- After Cowan’s objections Accordingly, his materialized. neys essentially position reiterated charge given must to the as in this court they previously. At the had taken fail, may not assert one “parties least, very clearly change it. they did not appeal.” Hackes v. trial and another on occasion, sure, spoke to be On one (D.C.1982).7 Hackes, 398 446 self-defense even if Cowan was about prior did her but she not revise III. charge. suggested She also showing that a did not act defendant HARMLESS ERROR ANALYSIS in self-defense or defense of another adequately pre Even if Cowan had prosecution effect an element which judge’s as issue the failure to served an page prove. very must next On on self-defense or defense an however, instruct transcript, counsel reiterated satisfied did not—we are other—which seeking she instruc- that, unique circumstances under second-degree tion offense case, any have harm this error would been abetting. which did involve less. precludes 30 Rule reversal Cowan’s alleged attorney
conviction for instructional error not mention these Cowan’s closing during argu- unless he stated his thesis in the trial court entire defenses his distinctly. If instructed as the See Britton v. United ment. U.S.App.D.C. jurors requested, conditionally F.2d curiam). (1962) (per having Cowan more than a recitation have heard no would linked clearly unambiguously self-de- or defense of a principles of self-defense presentation fense and defense of a person, third with no from third abetting, surely applied principles it was incum- how counsel as to these upon position attorneys, present bent his were case. Given the changing position, attorneys, to make that discussion taken Cowan’s change plain unambiguous, appeared so probability would all readily essentially it. As we jurors understand irrelevant to be recently Hunter, supra, parties. noted in A.2d controversy as defined Moreover, II our in Part discussion must be [objections made with reason- reveals, attorneys rec- opinion Cowan’s fairly specificity; able must be *8 subject of self-defense ognized that the question as on he apprised to the dangerous one of another was defense being rule. not assert- asked to Points compromised their ba- them for because precision sufficient to indicate ed with Knox, did not shoot position that Cowan sic distinctly normally party’s thesis will on the perhaps even and that spurned appeal. on words, in absence of In other scene. instruction, defense at- this record did Cowan’s
Nowhere
wished,
initial-
at least
“distinctly,”
counsel themselves
torneys state
with “reasonable
any
on self-defense
specificity,”
precision”
ly, to avoid
instructions
or with “sufficient
conceived)
(and
of the dan-
carefully
defense of another because
that their initial
evidence,
drug
argues
dealer
of
that the evidentia-
tion"
7. The
may
ry
not claim self-defense
predicate
on self-defense or
who arms himself
for instructions
insufficient,
not and do
as this one. We need
of a
a record such
third
position requires
issues.
“bizarre reconstruc-
not reach these
Cowan’s
hurt,
ger
everything
that such instructions would
rath-
eludes a discussion of
of which
help,
er than
are
counsel
Cowan’s case.
defense we
aware
said on
subjects,
by experienced
namely
was conducted
and able at-
the critical
whether the
Service,
torneys from the Public
Defender
defense of a
repeated
pro-
party
being sought conditionally
whose own
disavowal of the
third
were
posed
unconditionally
instructions which Cowan now claims or
and whether counsel
given
suggests
should
apply
itself
wanted these instructions to
give
charge
that the failure to
them was harmless.
other than
murder. Chief
Hunter,
145;
supra,
Judge Rogers
vaguely
See
606 A.2d
Parks
claims somewhat
States,
(D.C.1982),
positions
v. United
that the
of
as the
counsel evolved
denied,
opinion
proceeded,
rt.
461 U.S.
103 S.Ct.
trial
but her
does not
ce
(1983).
single passage
IV. pp. 499- the shooter. See the discussion RESPONSE TO DISSENT Indeed, supra. as we have endeav- show, attorneys’ ored to it was the defense dissenting colleague Our accuses the ma- (“Giles prime theory concern that their jority selectively quoting pas- “isolated it”) compromised must not be that led them and, sages” from particular, the record requests for narrowly to condition so ignoring the existence of the two com- on defense instructions on self-defense and peting preoccupied scenarios that party. of a third being at the time instructions were discussed, being the first scenario that Co- states, citing Supp. Finally, the dissent wan shot Knox being and the second 88-89, attorneys Rec. Tr. that Cowan’s Curiously, Giles was the shooter. she also “argued had acted in self- support position invokes as for her com- was entitled to a self-defense defense and ments made defense counsel not at the moved, instruction” at the time suc- being time instructions were dis- judgment acquittal cessfully, for a cussed, but at the time success- charge first-degree murder. That fully judgment acquittal moved for a discussion, however, not about first-degree murder. instructions, the MJOA. We but about respect allegations
With of selec- indication in the cited tran- have found no quotation, opinion (or argu- tive the majority script pages anywhere in- else in the *9 attorneys by dissenting colleague. 8. Since Cowan’s insisted with unre- our Post at 514. In- lenting rigor deed, that self-defense and defense of a judge gave the a detailed instruction on part third were not a of the defendant’s (which the case included the of case, theory of the this is not a case which in the Knox, not know assertions that Cowan did court refused to instruct on the defendant’s the- selling drugs, did not Giles would and know States, ory. Cf., e.g., Gethers v. United 556 A.2d Knox) though shoot there was no eviden- 201, (D.C.1989) (instruction 204 on defendant’s tiary predicate part for a substantial of the in- ordinarily given) of the case must and struction. proposition the other authorities for this cited
505 MJOA) instruction with ment the Cowan’s regard Majority opinion murder. requested a self-defense instruction.9 parties’ the in at Yet the evolution of position attorneys The of the 502. Cowan’s shows, positions progressed as the trial they sought circumstances under which recognized, that each side judge at the trial such an instruction was articulated the discussed, the side’s scenar- is came to realize that other time instructions set were prevail jury, the and accord- opin- might forth in Part io exhaustively II of corresponding ingly, instruc- ion. majority concludes that tions. While the position regarding self- y. defense counsel’s defense instructions was “clear[]” CONCLUSION “unambiguous[ ],” majority opinion at see 503, judge’s majority ignores the trial the reasons, For foregoing the the position. view defense counsel’s See of court, case the trial which is is remanded to Accordingly, respect- I at 509-510. infra directed to vacate one of Cowan’s two mur fully dissent. respects, In der convictions. all other Co- is wan’s convictions must be and each here I.
by To understand the evolution Affirmed.10 scenarios, complete a more review of the ROGERS, proceedings required Judge, dissenting in the than part Chief facts and opinion. concurring majority the part: presented in of of charges The out a sale cocaine arose majority’s analysis is, my view, The in awry, resulting prospec- in the went critically most flawed because fails to position buyer’s As the defense tive death. grips come to with the two factual scenar- clear, adjusted government its became the presented ios jury: presented the one defense, turn, position and reacted. the government the which the Knox, drug purchaser, presented impor- four shooter of and a The witnesses, Giles was presented by second scenario the defense tant of which Samuel Giles, drugs, of testified that in the key the seller was the witness. Giles 20,1986, By extracting portions early morning shooter. of November isolated of hours transcript, majority together concludes that were Giles’ request apartment watching tied his “Scarface” for self-defense movie watching counting After some request money. instructions trial, See, sequence generally, United v. Given the normal of events shot was fired. States stage 168-69, proceedings Heinlein, 157, such a would have been at that U.S.App.D.C. 490 F.2d 160 quite unusual. (1973). 736-37 remaining unper- 10. Cowan’s contentions are complains the trial Cowan He claims should suasive. directed murder that Cowan shot Knox while he and Giles were jury, in relation to failed to instruct acquit him on the count, killing that the must be in charge, ample but there was evidence felony. of told the furtherance Cowan, jurors, order to convict instead that in cocaine, attempting to and the distribute trial required to find that "the defendant were judgment judge properly denied his motion perpetrating at killed the deceased while determining acquittal. whether that mo- perpetrate tempting to the offense distribu granted, tion should have been evidence in the we consider the agree We tion of a controlled substance." light gov- most favorable sug which he now Cowan formulation ernment, giving play right full See, e.g., gests appropriate. evidence, is more Christian v. credibility, weigh to determine States, (D.C.1978), 49 cert. Langley United and draw reasonable inferences. (D.C.1986). denied, 61 L.Ed.2d 442 U.S. 99 S.Ct. reasonably conclude that "the (1979). object Cowan did instruc act,” i.e., Knox, lethal furtherance of was in however, given, Super.Ct.Crim.R. tion as predicate attempt- offense preclude "plain error” rule reversal cocaine, attempt- ed distribution of and that the these facts. ongoing ed distribution still when the fatal *10 movie, they apartment, pulled of the left appellant gun out a and shot him. carrying appellant Giles cocaine and Appellant person togeth- and the other ran carrying gun protection.” Once “[f]or er Giles ran in while another direction. On street, on the ap- man named Knox cross-examination, impeached she was proached them called name. and out Giles’ jury testimony appellant grand her that around, When him Giles turned Knox asked actually standing had been at the end of cocaine, if he responded had and Giles shoot, breezeway and did and that bags, that he did. Knox asked for and standing next him Giles and to them, given after Giles had Knox asked for guns.3 looked like had point two more. At said to Giles Metropolitan Officer Dicks Police Knox, got you’ve got “Either you’ve or $98 Department when testified that he arrived money, $100 bill.” said he Knox had the he on the scene found Knox give and Giles him to told to him. Short- lying pavement. Knox’s hand on was ly thereafter, pocket Knox reached into his jacket pocket his left front and a ham- and anything” said either “Give me or protruding pock- mer from that handle was Giles, “Give me to everything.” According et.4 point “Duck, appellant yelled, that Sol- dier,” and shot Knox.1 Duvall, cousin appel- Tina Giles’first and ran, home, Giles found went later girlfriend, ap- former that lant’s testified appellant Giles, porch. According on his to on pellant apartment had left the the morn- appellant put gun in Giles’ mouth ing gun, and a question with cocaine told him anyone he would kill him if he told that three to five minutes after he and cross-examination, what happened. had On gunshot. departed, Upon Giles she heard a pleaded guilty Giles admitted he had that window, running to the she saw the victim second-degree to of Knox an- breezeway. staggering through the Ac- man, other prosecutor and that had Duvall, appellant cording when Giles spoken on proceeding. his behalf apartment, to the Giles had a returned $100 testimony impeached Giles’ with three he appellant bill and stated that shot the earlier versions events he had ready to stick guy getting because he was given police, who ac- —to up of his also identified one soldiers. She cepted pleas, grand jury.2 Giles’ and to the gun and shoulder recovered in holster Holcomb, way
Lillian
who
bedroom shared
was on her
grandmother’s
belonging
appellant.
her
On cross-exami-
getting high
house after
nation,
drugs,
Giles,
pri-
with her
ap-
impeached
testified that she
Duvall was
saw
pellant,
statements,
talking
including
man
her statement to
guy
another
apartment
of an
had
breezeway
building.
police
that when
returned
pocket,
After
guy put
apartment
his hand in
said that he
his
he had
Watkins,
man,
being high
1. Giles also testified that another
3. Holcomb also admitted that
standing
porch
Giles’
things,
a little farther
drugs
affect
one sees
how
away
shooting.
than
at the time of the
from a distance of
she had viewed these events
feet,
forty-two
fifteen feet as she
not twelve to
memory
2. Giles’
was also refreshed
the fact
addition, she de-
had testified on direct.
upon entering
pleas,
his
he had told the
charges she had
various criminal
faced
scribed
money
that when Knox had asked for his
shooting, admitting that she had been
after the
back,
responded,
popped
Giles had
"You done
charges.
permitted
plead
to lesser
my bag,” referring
the seal on
fact that
already opened
bags.
Knox had
one of the
that,”
the murder
4. Another officer
testified
responded “F—
Knox
and then reached
pocket.
weapon
into
had been found underneath mattress
his
Giles claimed he
not had
give
money
response
apartment.
time to
his
Knox
back in
A
in one
bedrooms at Giles’
request.
thinking
to his
He denied
Knox
expert
the victim had
firearms
testified that
pocket
had reached into his
in order to
him
more
from a distance of
than three or
been shot
(Giles)
money,
more
but claimed
that he
four feet.
going
know
what Knox
to do.
money
getting
not mentioned
from Knox when
grand
jury.
had testified before the
*11
objected,
going
the defense. Defense counsel
thought Knox was
to rob them and
instruct
argued
judge
if the
did
on
going
that it looked like Knox was
into his
and
that
appellant
pocket
get
gun.5
aiding
abetting,
and
then
was
self-defense and
entitled to
instructions
rested,
government
and the defense
The
theory
The defense
defense of another.
acquittal
judgment
moved for a
notwith-
find
was the
jury
that if
did
was
the
standing
point,
At
the evidence.6
shooter,
entitled to use
then
was
appeal,
relevant to this
the two scenarios
appellant, and
force to
himself or
defend
emerged appellant as the shooter and
—
in-
principle
under
of transferred
that
the
Giles as the shooter.
tent,
guilty
appellant
found
could not be
First,
requested
the defense
counsel
aiding
abetting.
and
Defense
sub-
govern-
on the basis of
instructions
proposed
instructions on
mitted
written
appellant
theory
ment’s
that
was the shoot-
another,
defense of
During
er.
discussion of the defense mo-
agreed
give
tentatively
judge
the trial
tion,
response
prosecutor’s argu-
to the
them.7
of premedita-
ment that there was evidence
closing arguments,
After
the discussion
first-degree
tion
support
murder
jury
De-
of the
instructions continued.8
charge,
argued
appel-
defense counsel
that
first,
requests;
fense counsel made two
lant had acted in self-defense and
enti-
was
jury
that the trial
instruct the
judge
tled to a self-defense instruction. The trial
primary
theory
Giles was the
judge questioned
whether
defense was
—that
shooter,
second,
judge
that the trial
a self-defense
in a
entitled to
include
on self-defense
de-
instructions
drug
murder
distribution
case
the rest of the in-
fense
another with
prepare
asked both counsel to
memoranda.
structions, and not as an alternative de-
session,
At the next court
further
after
theory.
expressly
counsel
fense
Defense
self-defense,
judge
discussion about
argued
jury rejected
that if
the defense
granted the defense motion for
judgment
theory that
the shooter and
Giles was
first-degree
of acquittal on
de-
murder and
appellant had been the
found instead that
jury
cided to instruct the
on second-degree
shooter,
should be instructed that
appel-
murder since the
could find that
disprove
had the burden
lant
was
shooter.
self-defense.
counsel also de-
Defense
Self-defense was also discussed in con-
judge
clined
advise the
whether
de-
theory
nection with the defense
that Giles
appellant
had not been
claimed that
was
shooter.
Concerned that the
shooting.
at the scene of the
might conclude, contrary
govern-
case,
ment’s
The trial
concerned
de-
that Giles had
argued
prosecutor requested
been the
fense counsel had not
during
also did
abetting
closing argument
felony murder
response.
instruction on
wish
to be instructed
government’s
The prosecutor’s request
and alternative defense
on the
had acted
self-
count
addition,
prompted
corresponding
on what
reaction from defense.
based
Reading
closing argument,
prosecutor
5.
the statement
refreshed Duvall’s 8.In
addressed
memory that Giles had told her when he re-
appellant as the shooter
both
scenarios—
apartment
morning
turned to the
that he
appellant’s
Giles as the
self-de-
shooter—and
upstairs,
put
gun
and that
closing argument
fense claim.
like-
guy.”
"shot the
scenarios, focusing
wise
the two
addressed
insufficiency
evidence
present any
6. The defense did not
evidence.
the shooter and the indica-
the shooter. Defense coun-
tions
Giles was
majority opinion,
majority opinion
see
appellant’s
self-defense con-
sel
not discuss
IV, ignores
Part
the record which shows that
during closing argument.
tentions
self-defense instruc-
provided
pro-
the trial
tion and
with a
posed written instruction.
*12
government’s
appel-
deemed to be
the
theory
inconsistencies in
various
under the
that
theories,
defense
judge
the
reversed his
shooter,
second,
lant was the
and
under the
give
earlier decision and
to
the
declined
theory
that Giles
the
shooter.
Later,
judge
self-defense
the
instructions.
These
scenarios make clear that
the
give
also reversed his earlier decision to
applied
instructions
to both
self-defense
aiding
abetting
instruction
the felo-
contexts,
waiving
and that
such an instruc-
ny murder count.
tion in one context was not tantamount
in
waiving it
the other. The
first
II
requested
the
instruction
government
arguments
makes four
government’s
the close
ease when
support
in
judge’s
of the trial
refusal
in
the
asked for
the instruction
give
Upon
the self-defense
ex-
instruction.
government’s
theory
response to the
amination,
they
unpersuasive.9
are
appellant was the shooter. A
re-
second
Linkage.
government maintains,
quest
for
instructions was
majority agrees,
and the
that defense coun-
response
made
the defense
the
request
sel waived the
for a self-defense
government's
request
aiding
for the
Contrary
majority’s
instruction.
re-
abetting
on the
murder
construction of
its
the record and
reliance
When,
excerpts
charge.
majority’s
as the
excerpts,
on isolated
the
of the trial
record
out,
point
from the record
defense counsel
refutes
contention that
trial
request
properly
waived the
self-defense instruc-
give
refused to
in-
they
structions because
linked
theory
been
tions in connection with the defense
government’s
aiding
abetting
in-
shooter, however, de-
was the
struction,
given.10
ultimately
the re-
fense counsel did not also waive
government
noted,
quest
in connection with the
previously
As
discussion
first,
arose
theory
in two contexts:
was the shooter.11
At
9. 11. Toward the end of the
peal).
precluded raising
abetting issue:
self-defense instructions from
emphasized
ment that defense counsel’s statement at trial
structions to be
(D.C.1989) (rejecting
to a self-defense instruction in a
legal
regarding
case.
And
fense because for defense
And, so, I think both of those instructions
Honor, he could—he could still believed.
THE COURT:
are
[DEFENSE COUNSEL]:
our
[self-defense
See
he was
trial,
memorandum
important
other
theory of
Adams v.
if the
didn’t think he
******
whether or not
that it had
"no
it
wouldn’t even matter
for the
defense instruction.
longer requesting
given
Well,
believes that
the failure
defense of a
requested by
believes the
uncoupled
I
will
discussion
did not
Right.
to hear
of others
to instruct
jury,
put
Mr.
right
its
third
it here
person
self-defense”
was entitled
Cowan was
the defense
present
along
But,
trial
to self-de-
of the in-
is what
Sammy
person]
Your
then.
argu-
had.
ap-
THE
in self-defense or self-defense of the third
THE COURT: If
ty.
Mr.
theory ...
was Giles.
fense [that
yeah,
the—that
read the
believe that our client shot in self-defense
Cowan
THE COURT:
there.
[DEFENSE
think the
able
to believe our
Court needs to
that’s
Sammy
[DEFENSE
did so
And have
Cowan
doubt,
COURT:
that’s
why the defense
[******]
If
says that
I
Giles shot
self-defense instructions.
you
if
in self
Court can read our
you
acting
COUNSEL]:
that he did shoot the
Giles shot
it. You
COUNSEL]:
do not
That's
theory
Well,
got
find that
he
they reject
do that extra
defense,
in self-defense.
acted in
it,
accept
right
don’t
then I
give
of defense that
then
Knox]
instruction_
he, beyond
Then it’s
or if
Mr. Cowan’s
I don’t think the
that.
believe that.
self-defense.
will
they
and then
you
theory of
defense, then,
theory that it
If
language.
put that
Knox,
could
that's
got to
find
Sammy,
reason-
acting
your
that,
And
par-
also
just
de-
I
[DEFENSE COUNSEL]:
...
they
find that
could not believe our
of the defense. And if
choose not
separate
in which the
would
argued
matters
Defense
trial
is raised
evi-
the shooter.
that once self-defense
have to find that
dence,
gov-
turn,
it did
argument,
it becomes an element
The defense
disprove
has to
ernment
does
if the
not need
instructions
the self-defense
De-
have to be a
of the defense.
judge did not
counsel, therefore, sought
to have
was based
instruction on
*13
give
trial
the self-defense instruc-
the
first,
consis-
grounds:
that would be
stating that self-defense was
tions without
theory that Giles was
tent with the defense
theory.12
an alternative
As was
defense
second,
second-degree
the
and
argued
sup-
in
true when defense counsel
jury,
go
to the
murder count should
acquit-
port
judgment
of the motion for
should.
only felony murder
tal,
point
requests
at this
the
the self-
however,
continued,
Defense counsel
another instruc-
defense
defense of
press a
claim in the event that
self-defense
longer
aiding
no
to the
tions were
tied
jury
accordance with
the
determined—in
abetting instruction.
ap-
government’s principal theory
the
—that
recapitulate:
raised
To
The defense first
shooting. The trial
pellant
done the
moving
judg-
a self-defense claim in
tíiis
he stated
judge acknowledged
when
acquittal
ment of
all counts
the close
on
abetting
that he
the
would
Specifi-
of the
case-in-chief.
murder,
felony
on
a second-de-
instruction
cally,
addressing
premeditated
in
the
mur-
instruction,
a self-defense
gree murder
charge,
argued
the
der
defense
that “all of
jury
regardless of
the
instruction
who
suggest
the Government’s witnesses
the
judge’s
the shooter.13 In the
found
of a
claim.
if
possibility
Even
words:
the
it
Court credits all the witnesses that
Now,
murder,
I will
as the
insofar
was Mr. Cowan that fired the shot.” The
it,
give aiding
abetting
Govern-
on
argued
prosecutor
that self-defense was a
theory
ment’s
that Cowan did the shoot-
question
jury.
for the
The trial
ing,
did
theory
defendant’s
that Giles
the
acquittal
granted the
motion for
on
event,
any
in
shooting, but in
the
first-degree murder and decided to instruct
event,
the
or whoev-
if
did
second-degree
murder on the
basis
shooting,
did
it was done
self-
er
the
jury
appellant
the
find that
the
was
defense,
person
the
of the
or of
either
shooter.
person.
other
judge granted
After the
the defense mo-
stood when
This was where matters
first-degree
prosecutor
tion on
the
closing arguments to
counsel
made
instruc-
Afterwards, during discussion
jury.14
the
jury
if
tion
found—in
instructions,
re-
the defense
principal
accordance with the
defense theo-
that,
mur-
peated
in addition
ry
Giles had been
shooter. This
—that
instruction,
it wanted
theory only,
focused
der self-defense
on the
jury rejected
prosecutor viewing
second-degree
(that
theory
was
carrying
pistol
murder and
counts as
the defense
objection
There
no
Defense
who
the shooter.
was
12.
counsel asked
to instruct
appellant
response
judge’s
prosecutor
on the defense
shooting,
not do the
but also to instruct
counsel’s statement.
comments or defense
law,
principle
"there is another
ladies and
self-defense,
gentlemen,
acts in
if a
closing argument
14.During
prosecutor ar-
stating
theory,
just
that it’s either side’s
gued
government and defense theories
both the
theory, just
that it’s a
there is another
appellant
the evidence showed
case—that
government
principle and
has the
burden
(government’s theory) and that
was the shooter
principle."
(defense
if the
found Giles was the shooter
theory),
guilty
an aider
as
then
Defense
indicated that
instruc-
prosecutor
defense,
also addressed
abettor.
proposed by
by substituting
tions
“defendant,"
applied to
the shooter
as it
Giles as
the word “shooter" for
would fit
applied
as
the shooter.
both
defense and
theories of
shooter) and
found that
recently,
As the court
in noting
observed
explained
shooter. As defense counsel
concept appears
fairly
to have
“[t]he
judge,
deep
jurisdiction,”
roots
case,
self-defense is raised in a
[W]hen
general proposition,
‘As a
a defendant is
when the
prima
defense has met their
entitled to an
any recog
instruction as to
burden,
here,
facie
which we have
be-
nized defense for
there
exists evi
right
instruction,
cause we have
dence
sufficient for a reasonable
then it becomes an element the Govern-
find in his favor.’
[citations omitted]
ment
disprove.
has to
So it doesn’t have Moreover, in the Mathews
[v.
to be our
of the defense. But
485 U.S.
108 S.Ct.
it,
disprove
still have to
because it
decision,
(1988),]
Supreme
L.Ed.2d 54
has been raised.
Court made clear that
the defendant’s
entitlement to such an instruction is not
Clearly, the
longer
defense was no
condi-
*14
by
canceled or
diminished
claim of
tioning
request
for the self-defense in-
inconsistent, or
contradictory,
de
upon
struction
the scenario that Giles had
fenses, even those inconsistent
shooting.
done the
In
of
view the evidence
with
testimony.
defendant’s
from which a
jury
reasonable
could find
appellant
that
had been the
States,
916,
Bostick v. United
605 A.2d
917
issue of
mur-
(D.C.1992)(quoting Mathews,
6 n. 7
supra,
longer
der was no
relevant
the self-
63,
887,
5H showing necessary for a instruc- any entitled issue evidence, fairly by raised no matter tion. be,” although may how weak evidence Furthermore, relied on cases given no instruction need be the absence Byrd In distinguishable. government are Doby v. legal of a for it. factual basis States, 1215, (D.C. 1220 v. United 364 A.2d States, 919, (D.C. United 550 A.2d 920 no 1975), example, evidence there 1988) (citations omitted); Carter v. United since the support self-defense claim States, 956, (D.C.1987) (same). 531 A.2d 959 only that the victim had evidence was States, Gray v. A.2d See United 549 anything in his hands when the defen 347, (D.C.1988) 349 (requested instruction of an earlier dant returned to scene of the case which defendant’s contrast, Here, in argument to shoot him. negates sup guilt given must be where indicating Knox there was evidence evidence, weak) (ci ported however Similarly, in United States was armed. States, omitted); Stack v. United tations Peterson, U.S.App.D.C. 483 F.2d 157 (D.C.1986) (theory 154 denied, 414 1222, 1232, 94 cert. U.S. case; evidence”) (quoting Montgom “any (1973), L.Ed.2d defen S.Ct. ery v. dispute of a dant returned scene (D.C.1978)). reviewing the trial court’s By weapon. time the victim instruction, refusal prepared car gotten into his and was light court must view the evidence in the *15 pistol, loaded his leave when the defendant the defendant. Guil most to favorable leave, victim not to commanded the lard, 62; Adams, supra, 596 A.2d at su Id. property. at him to enter his dared
pra, 558 A.2d at
Harling
349. See
v. Unit
229-30,
Here,
at 1233.
unlike
483 F.2d
States,
ed
1101,
(D.C.1978)
387 A.2d
1103
Peterson,
appel
there was no evidence that
(either
prosecution);
evidence
the
or
A
instigated
lant had
the trouble.
reason
llard,
supra, 596 A.2d
(tes
63at
Gui
jury
find
reason
able
could
that
Reid,
timony
government witnesses);
reaching into
ably thought
that Knox was
supra,
at
581 A.2d
pocket
weapon.
his
for a
government's
Knox
contention that
closely
point
more
Other decisions
force,
deadly
never
to
threatened
use
make clear that
there was sufficient evi-
thus
no
there was
actual threat of immi-
to
dence
merit
self-defense instruction.
harm,
nent
incorrectly views
evidence
the
States, 400 A.2d
Gillis v. United
See
light
in the
most
to
govern-
favorable
the
(where
(D.C.1979)
ap-
victim had
311
ment;
appellant’s
it
is
reasonable belief
defendant,
being
him
proached
accused
that he
peril
is in imminent
death
girlfriend,
his
and then reached into
bodily
gives
serious
harm that
rise to a
proper);
instruction
pocket,
his
McPhaul v. United
claim.
Reid, supra, 581
(where
367
A.2d
States,
(D.C.1982).
373
Un-
arguing
police found defendant
with others
the
der
circumstances as described
holding a
him while
who outnumbered
Holcomb, appellant
could have reason-
knife,
police
offi-
yelled
and defendant
ably
demanding
that
believed
Knox was
his
cer, “I’m
these
going
show
motherf—
money
already
though
back even
he had
ing
I’ll
they don’t
with me.
f— them
opened
drug packets,
one
f—
reasonably
up”,
find that
protested,
when Giles
Knox’s hand move-
trying to ward off an attack and
was
pocket
weapon.
ment
to his
was for a
thus
to a self-de-
defendant was
entitled
Likewise,
government’s
view
instruction);
States
anything,”
Knox’s
me
statement “Give
McCrae,
116, 118, 459
U.S.App.D.C.
148
ambiguous
his
to his pocket
movement
(1972) (error
conduct,
F.2d
not to
any argu-
and that the evidence of
where the defen-
ment or verbal
threat between
self-defense instruction
best,
put
Knox
his
was weak at
views the evidence
dant testified that
the victim had
government’s perspective,
pockets
pointing
from the
and is
hands
his
“was
into
evidentiary
something
through
pocket,”
inconsistent with
me
the “weak”
his
another
government
witness testified that
the victim
cases on which
re-
shoot).
looked like
going
he was
simply
lies
hold that where there is no
support
evidence to
a lesser included of-
Thirdly,
Bizarre reconstruction.
instruction,
fense or self-defense
a defen-
government
appellant’s
maintains
vari-
dant
is not entitled to an instruction.
ous theories of the case would have forced
Thus,
v. United
Anderson
engage
in “bizarre reconstruc-
(D.C.1985),
the defendant
However,
tion” of the
appel-
evidence.
was denied an
for the
lesser
lant’s
claim
was consistent
robbery
included
gov-
offense of
where the
government’s
with the
principal theory that
presented
eyewitnesses
ernment
who
was the
and hence the
testified
although they
never
saw the
seriously suggest
cannot
they
gun,
defendant with a
a bizarre
turned the
required.
reconstruction was
But,
instant
shot and
even in the
of such
heard the
seen the
absence
consisten-
cy,
government’s
standing
and to the
defendant
next to the victim
extent
argument
shooting;
moment
based on
defense refusal
after the
there was also
to state
claiming
whether or not was
medical
evidence that
victim had been
present
away.
was not
at the
shot
scene of
from one foot
The defendant
shooting,
appellant’s
argued
self-defense claim
that he
entitled to an
instruc-
would not
required
tion
government’s
to do
because the
evidence
more
credibility
gov-
than doubt
compatible
awith version that he had
ernment
(unarmed
witnesses about which man
innocently
and unassociated with
shot,
fired the
possi-
assailant)
a feat that was
upon
made
stumbled
ble
impeachment
scene,
extensive
that some unidentified assailant had
Moreover,
victim,
witnesses.
shot
and that the defendant had
required
was not
try
money
then
recon-
noticed the
and decided to take
appellant’s
cile
testimony with his
it and
flee.
Id. The court concluded that
since he
testify.18
Bostick,
did not
credulity
See
such a scenario
“strain[ed]
*16
supra,
(fact
605
breaking point,”
put
A.2d at 917 n. 5
jurors
would
the
defendant
position
having
did not claim
self-defense when
the
to effect a “bi-
he
having
gun
testified and denied
a
did zarre
of the evidence.
reconstruction”
Id.
preclude
not
provocation
however,
on
case,
govern-
instruction
In the
as
instant
the
by
defendant);
defense to shooting
the
put
ment’s evidence
least two men in a
Guillard,
16,
supra
position
note
513
contrast, appellant was
By
that ensued.21
argument
Despite
government’s
nor involved
aggressor,
first
neither
jury on self-defense would
instructing the
Knox,
by
with
dispute
any pre-existing
“impossi-
with
presented
have
morning with
leaving
apartment
case
task,”
in the instant
the evidence
ble
drugs he is
selling
purpose of
for the
great
leap
of Giles
require
so
clearly does
inciting or
thereby
in law as
not viewed
in Anderson and
logic
required
an attack.
provoking
Knox’s
testimony about
Giles’
Crowder.
testified
eyewitnesses
response to Giles’
everything”
me
“Give
Knox,
initiated
gun until
who
go for his
the ex- not
payment, as well as
demand for
Giles,
in his
put his hand
with
one
the contact
opening the seal of
change about Knox
testi-
government witness
pocket. Another
a reasonable infer-
drug packet, supported
had shot
that he
appellant claimed
par-
fied that
dispute arose between
ence that a
up one
he
about to stick
because was
jurors could Knox
the sale. Reasonable
ties to
testimony
of his soldiers.
fairly
of both
credited
Holcomb,
ap-
eyewitnesses, Giles and
by
robbery cases cited
the armed
Nor are
only after Knox reached
pellant shot Knox
controlling.
Taylor
v.
Coupled
the testimo-
pocket.
into his
(D.C.1977),the
States,
burglaries,
aggressive
of law to
inherently involve
ground
drug
refusal on the
illegal
conduct. The
distri-
nature
defenses and had
different,
presenting inconsistent
qualitatively
bution is
somewhat
argue
the self-defense claim
failed
aggressor
at least insofar as first
status
closing
jury during
argument. See Math
concerned,
robbery
burgla-
from armed
66,
ews,
108
883
supra,
tion on there were whether second-degree murder suf
cumstances necessarily
ficed to indicate Math
rejected any provocation claim.
Cf.
ews,
supra,
(reversible deny entrapment de error defendant ground charged all admit elements
would not charged jury
offense even where procurred “were the defendant’s acts principle acts the overt [sic]
[sic] v. White government”);
witness of the (D.C. 877-78
1992) jury” (adopting “no standard rational California, Carella v. 491 U.S. 2419, 2423, 105 (1989)
109 S.Ct. L.Ed.2d
(Scalia, J., plurality opinion) applying in error standard to failure to
harmless offense).
struct on element respectfully I dissent I
Accordingly, appellant’s
would reverse convictions for second-degree murder case a new
and remand the trial otherwise, charges;
those I concur with the
majority affirming appellant’s other con-
victions.25 SHEETZ, al., Appellants, I. et
Charles COLUMBIA, Appellee.
DISTRICT OF
No. 92-CV-517. Appeals. of Columbia
District Court
Argued 1993. March Aug.
Decided Clarke, Chase, MD, Chevy
A. Slater *19 appellants. cocaine, 33-541(a)(l) (Repl.1988), Appellant degree § of second D.C.Code convicted license, (Repl.1989), felony carrying pistol § D.C.Code 22-2403 without armed, §§ while D.C.Code 22-2401 murder and (Repl.1989). D.C.Code 22-3204 § (Repl.1989), attempted distribution of -3202