*1 HERNANDEZ, Appellant, Napoleon S. STATES, Appellee.
UNITED
No. 03-CF-175. of Appeals.
District Columbia Court
Argued May July
Decided *2 GLICKMAN, FARRELL
Before KING, Judges, Associate Senior Judge.
FARRELL, Judge: Associate A jury appellant found of armed guilty aggravated assault Alejandro on Ventura. (2001). 22-404.1, §§ -4502 D.C.Code issue on appeal sole whether the judge erroneously trial a denied defense request instruct self-defense. Al- on though the de- admittedly it slight, fense was was suffi- cient under our to justify standards instruction. The failure to the in- error, struction was therefore and be- jury any cause the error denied the guidance legal on the principles, relevant we must reverse and for a remand new trial.
I. September 2, 2001, On at about 11:30 p.m., Alejandro appellant Ventura times in multiple the abdominal area.1 trial, appellant testify Since did was the eyewitness Ventura who took stabbing the stand. He stated spent Septem- that he had afternoon watching ber 2 television with his brother. home, evening walking Later that while appellant, encountered whom he knew ca- sually the neighborhood. Appellant him to up “[w]ait asked ... because [he also,” going home when Ventura was] Rosenau, DC, Kenneth H. Washington, replied way buy that he was on appellant. for beer, buy appellant asked Ventura one Sprague, Sharon A. agreed, Assistant United for him too. Ventura and bought Attorney, States with whom C. “bull Roscoe 32-ounce beer” for Howard, Jr., Attorney United States at the two 22-ounce Heinekens for himself. The time, nearby and John R. Fisher Thomas stopped J. two men under a tree to Tourish, Jr., beverages. point Assistant At- United States drink the At one their conversation, torneys, brief, appellee. “innocently” were Ventura asked evidence) exactly 1. The was uncertain as to concluded the evidence that time, place, p.m. when took 11:30 was the (in ruling admissibility on the certain infer likewise. red,” courage eyes “really ner- “look[ed] had the were appellant “whether he vous,” bleeding stick knife someone else.” and there was his neck [l]ike to “Yes, answered, why not?” He had a Appellant from the scratches. swell- *3 ing side of his head. Ms. right on later, as A minutes Ventura and few bed, him helped Hernandez and beers, appellant finished their Ventura felt day next she on his neck— saw bruise appellant “poke” “bug him. Ventura said again somebody put “as if their hands had “poke” him. appellant off’ but continued to his neck.” around jabbed After him three more appellant times, oozing from noticed blood Ventura Edberg Dr. his upon based attempted appel- He follow his torso. medical review Ventura’s records lant, running after a away, who was University information Hospital, Howard appellant too far block he realized that was appellant’s ar- warrant for him. this away up By catch with time rest, transcript and the of Ms. Hernandez’ profusely. Realiz- bleeding Ventura was testimony at detention appellant’s pretrial ing apartment, he was close to his he that hearing. He had determined Ventura call home and had his wife an returned alcohol,” and of- was a “chronic user He taken ambulance. was to Howard Uni- opinion “many people under fered versity he ma- Hospital where underwent the influence of alcohol tend to become stitches, forty jor surgery, received ... The for trivial reasons.”2 combative days. nine hospital remained in the for further doctor described the wounds Ven- why he no idea testified that had Ventura suffered, explaining tura had there him; had appellant appel- he the abdominal were four stab wounds to fought immediately lant not before the had area, of them in that “superficial” three had had stabbing, they per- never they “penetrate underlying not into the did sonality by police conflict. Interviewed body cavity,” did and a fourth that “indeed hospital, Medina at the Ventura detective underlying peritoneal into penetrate appellant by descrip- name and identified and, entering while not the stom- cavity” tion his assailant. ach, gastric artery caused severed the significant in blood loss. Asked whether
Appellant called two witnesses
with some-
defense, his
and Dr.
Ed-
these wounds were “consistent
mother
Sanford
stabbing
he
body
ground up,”
Ms.
berg,
expert
pathology.
an
in
Her-
“they
would be consistent
night
Sep-
nandez
that on the
affirmed
testified
up-
with
underneath
tember 2
returned to the home
someone
Yes, absolutely.”
His hair wards.
midnight.
shared
around
(and
objection)
Ms.
he
summarized
and back were covered
leaves and
description at the earlier hear-
throat
that Hernandez’
had scratch marks
when he re-
ing
appearance
somebody
grabbed
appellant’s
if
...
looked “as
had
home,
including
the “series
him.”
turned
Ms. Hernandez described
completely encompassed
scratches which
gesture
marks
a hand
which the
scratch
neck from ear
ear
“indicat-
front
explained
court
for the record as
fashion,”
what
to be a linear
ing
somebody
using
as if
both hands
if he
by bruising.
Appellant’s
fashion.”
followed
Asked
choking
dispute
admissibility of this evidence
objected
government
2. The
to the doctor's
opinions regarding
appeal, arguing instead that it adds noth-
qualifications
express
effects,
ing
basis
a self-defense in-
trial
to the factual
and its
but the
alcoholism
testimony.
government
does
struction.
allowed the
(3)
immediate;
opinion
honestly
as to
the defendant
“how those bruises
caused,”
replied
“they
have been
believed that
by somebody’s
could have been caused
of death or serious
(4)
forcefully
region.”
harm;
pressing
bodily
the defendant’s
necessary
response was
to save himself
II.
danger.
from the
Although
judge may
“[t]he
v.
Brown
properly
refuse to
defendant’s re
[a
curiam), citing inter
(per
quested] instruction
where no factual
Peterson,
alia United States
*4
exists,
legal
for it
...
basis
the failure to
219, 226-27,
1222,
U.S.App. D.C.
483 F.2d
such
instruction
evi
where some
(1973).
accused is entitled
“[A]n
1229-30
supports
dence
it
is reversible error.”
to a self-defense instruction if the evi
States,
658,
Frost v. United
618
662-
A.2d
dence,
prose
either that
the defense
(D.C.1992).
63 n. 19
The
“some
test for
cution,
issue,”
fairly
the
raises
Guillard
one,”
is “a minimal
evidence”
Shuler v.
States,
(D.C.1991)
60,
United
596 A.2d
63
States,
(D.C.
1014,
677 A.2d
1017
(citation
quotation
and internal
marks
1996) (citation
quotation
and internal
omitted);
“the
of the defendant
omitted):
marks
defendant is entitled
“[a]
put
necessary
is not
to
claim before
[the]
to a
jury
theory
instruction
of the
McClam,
3,
jury.”
supra
the
note
775
negates
guilt
case that
in
if the
States,
at
(citing
A.2d
1104
Reid v. United
evidence,
struction is supported by any
(D.C.1990)).
359,
A.2d
581
367
States,
weak.”
however
Graves v. United
standards,
these
Applying
we
1145,
(D.C.1989) (citations
554 A.2d
conclude that appellant “fairly raise[d]”
omitted).
quotation
and internal
marks
As
the issue of self-defense because there was
similarly
we
stated in Wilson v. United
evidence,”
weak, support
“some
however
States,
670,
(D.C.1996),
673 A.2d
672-73
ing the
for the defense set forth
conditions
“[A] defendant is entitled to an instruction
government’s
depict
The
evidence
above.
any recognized
as to
defense for which
by
multiple stabbing
appellant precip
ed a
there exists evidence sufficient for a rea
by nothing
itated
more than
idle
Ventura’s
jury to
sonable
find in his
“[I]n
favor.”3
question
him of “whether he had the
the
reviewing
requested
denial
de
courage
to stick a knife
someone
instruction,
fense
court examines the
[this]
Appellant
contrary testi
presented
else.”
in
light
evidence
most
favorable
that,
later,
mony
as little as a half hour
Frost,
defendant.”
More particularly, in order to in grabbed neck had him around the voke self-defense a defendant must be able him, leaving his neck scratched and choked to point satisfying to evidence each bruised; and debris in hair and he had following conditions: on his back had been suggesting
(1)
Further,
there was an actual or
apparent
lying
his back.
(2)
threat;
record of Ventura’s
opined
threat was unlawful
way
saying
this
issue
v. Unit-
Another
is that the
structions of the evidence.” McClam
by
addressed
need
be
instruction
ed
evidence, although
"fairly
by
raise[d]”
(citations
quotation
omit-
and internal
marks
judges properly deny
"trial
which
instructions
ted).
jury
require
engage
in
recon-
bizarre
Edberg’s opinion
But Dr.
be-
have
inflicted them.
wounds that
been
ground
objection;
lying
jury
prose-
someone
on the
stab-
fore the
upwards.
uncross-examined;
this
bing
Taking
essentially
its
cutor
it
left
entirety,4
fairly
it
raised the issue of
say
it is not for us
strug-
appellant and Ventura
whether
giving
any weight
precluded
it
gled,
whether in the course of the
determining
in which
the circumstances
actually
struggle appellant
Ventura was wounded.
believed that he was
sum, appellant’s
In
defense that he
Ventura,
injury from
and therefore
serious
while threatened with
stabbed Ventura
him.
injury by
stronger
man5 who
serious
position,
to the
Contrary
government’s
pinned
ground
him to the
with a
this scenario is not a
reconstruc-
“bizarre
his neck was
so barren
around
McClam, supra
tion[]
the evidence.”
evidentiary
legiti-
it could
support
true,
It
note
775 A.2d
jury.
con-
mately
kept from the
be
observed,
appel-
although
*5
trary arguments
the trial court and the
of
lant
home “with marks
his neck]
came
[on
government go
weight
“the
of
instead to
head[,]
of
and leaves on the back
his
instruction,”
the
the
evidence
all of
somewhere
that
have occurred
are “immaterial” to the issue
hence
fight
else
in a
But it
[than
Ventura].”
with
(em-
Shuler,
jury infer the natural as might anyway prac- well failed have injuries appellant’s and time for to have de- testimony tical matter his own .without acquired barely was half hour earli- been the the circumstances of alterca- scribing when, the according government’s er one); (assuming tion there indeed was evidence, appellant upmet with Ventura him in- deny that not was reason any apparent him and stabbed that the modicum of required struction true, govern- It is the provocation. as Reid, evidentiary See 581 A.2d at support. out, Dr. points ment never (weak “of 367 circumstantial evidence actually examined Ventura’s wounds engaging argument in an sev- Reid’s of support opinion “[abso- his others, holding eral while a knife could lutely” they could have resulted from an defensive, Reid outnumbered have indicated that was upward, or he cited warding off an superficial process of three of and was the of the nature 360, ("It is fundamental fairly 363 4. An of self-defense reached inference govern by crediting portions aggressor the one in an alterca- that when both tion, evidence and of the rely upon right ment’s defense of self- he cannot will, course, force.”). entitle defendant justify first defense to his use Guillard., A.2d at 63. instruction. See Edberg, Hernandez and Ms. however, supported a reasonable inference— cross-examination, police On detective Med- 5. began weak—that the altercation however acknowledged "a ina that Ventura was much Ventura, significantly when escalated person [appel- bigger than "bulkier”] [and clasped appellant's rightly around neck lant].” back, thereby justi- forced onto fying was first an instruction who judge to rule out point 6. At one because, aggressor, see Jury in his Instructions the self-defense instruction view, Criminal (4th 5.16 ed. No. supported no evidence "an inference Columbia, the District 2002), part of the on self- ag- instructions the first tihe defendant not States, gressor.” See Martin v. United defense. group[,]” attack and therefore was JOHNSON, Appellant T. Michael justify
sufficient to self-defense instruc- tion).
Although explicitly arguing COLUMBIA, Appellee. OF DISTRICT error, government points harmless out No. 03-CT-1016. that the trial in fact jury told the appellant’s theory self-defense, Appeals. District of Columbia Court of him argue even allowed self-defense in summation. But an instruction to the 30, Argued March jury must “properly ap inform [it] 8, Decided July involved,” plicable principles Stewart v. 687 A.2d (D.C.
1996), and nothing here the learned self-defense, legal meaning
about the that,
including concepts from the accused’s view,
point of could have vital to been
jury’s proper evaluation of the evidence.
See, e.g., su Instructions, CRIMINALJURY (“The
pra note No. 5.12 question is not looking you
whether back on incident
believe that the use force necessary. question defendant, is whether the
under circumstances as incident, the time of the him/her
actually believed that inwas s/he harm, bodily and could reason belief’).
ably hold that Permitting appel argue
lant to self-defense not an ade
quate proxy for an instruction explaining
the relevant principles.
Reversed and remanded a new trial.
KING, Judge, dissenting. Senior
Because evidence self-de- essentially
fense instruction was nonexis-
tent, respectfully major- I dissent
ity’s in this reversal conviction case.