*1 1277 impulse his life. testimo- an irresistible to take own nificantly from Dr. Brain’s absent Jamison, supra, however, F.Supp. at 1292 indication that this 511 ny, was Cf. depres- an irresistible depression (testimony led Peters to have that decedent suffered Brain take his own life. Dr. impulse to insufficient to sustain burden of sive illness experience it had been impulse testified that to commit su- showing irresistible kill themselves feel an people that who icide). submitting The trial court erred hopelessness and overwhelming sense of jury. this issue to the they cannot think helplessness so dam- jury separate did not Since the can see one options but about various ages wrongful death from those dam- Although or relief. Dr. sort of release ages proper to the survival which were depression opined that Peters’ was a Brain action, jury’s lump sum we must vacate feeling to Peters’ “powerful contributor” $349,000 returned in both the award of helplessness, hopelessness and and that wrongful action. death and the survival of circumstanc- injury “set forth a chain is remanded to the trial court for The case which culminated es and events [Peters’] damages to be a determination of the death,” cry statements are a far from these action alone.7 We awarded the survival showing shooting Ray- caused that the $51,000 jury’s verdict of for loss affirm the or un- Peters to have an irresistible mond consortium. suicide. impulse to commit controllable re- part and reversed and Affirmed out, points correctly, that in Peters part opin- with this manded in consistent recover, necessary that a order to it is not ion. plaintiff produce expert an witness whose testimony draws the ultimate conclusion Indeed, pointed out jury.
for the we have testimony
in a similar context that such is
inappropriate. Bethea v. United cert. de (D.C.1976),
365 A.2d 75 n. 22 nied, 53 U.S. S.Ct. SLOAN, Appellant, Norwood (1977). ex L.Ed.2d 1095 Nor must pert’s testimony particular use terminolo v. gy, impulse.” such as But it “irresistible STATES, Appellee. UNITED necessary in case the context of this No. 85-892. plaintiff testimony adduce that would support jury finding decedent could Appeals. of Columbia Court of District against
not have decided and refrained Argued 1986. June killing himself. This Peters failed to 29, 1987. Decided June do. short, testimony by offered Peters insufficient to show that Officer Bell’s having Raymond resulted in Peters’ actions not, (in though perhaps, remand, practice jury, result On the trial court will be faced higher assuring theory) may than would that the determina- be a verdict the sensitive task of damages by jury in the survival action is effected knowl- with full have been returned just parties. to all We in a manner fair and in- edge It would be anomalous of the facts. considered, sponte, the issues have sua whether if, damages aspect of upon of the deed retrial liability damages in the survival action action, jury an should return survival upon remand are so intertwined that the trial wrongful greater the combined than award damages. liability be on as well as on should damages at returned and survival action death Stores, Inc., Munsey Safeway See parties being cannot If the reviewed. (D.C.1949). appears that in this case the It damages, agree apportionment of and the damages survival action is suffi- issue of ciently Yet, in the damages a second must be decided issue of permit tried itself. discrete to it to be jury to it that the jury, see recognize a second con- we that when general way of the circum- apprised in least a damages knowledge only, siders without injury. surrounding the infliction stances surrounding of in- the infliction circumstances *2 (1981),
chemical), 22-502 D.C.Code § disfigurement malicious while one count of 22-506, (1981). armed, -3202 D.C.Code §§ trial, appellant was convicted After a dangerous of one count assault with chemical), (corrosive acquitted weapon *3 charges. Appellant sen- on other was imprisonment a term of tenced to serve forty nor than not months more less than restitution in the years, ten and make $6,000. amount of Appellant court contends that properly on the failed instruct the Appellant also asserts law of self-defense. trial court his sixth violated rights by allow- amendment confrontation ing government impeach his testimo- prior ny the use of a inconsistent with in cross-examination of statement obtained witness, Hayes, Detective a defense scope ap- questioning that exceeded examination of that wit- pellant’s direct during Appellant contends that ness. also sentencing the trial violated the Code upon relying an ex Conduct Judicial by his law parte, post-verdict discussion juror jury’s reasons clerk about the with appellant on two of the acquitting for charges. asserts that three filed He then proce- the trial court violated $6,000 ordering process by dural due making factual without restitution conviction, affirm the but findings. We give resentencing to remand for Cannon, T. Public Defender Maureen find- opportunity to make factual court an Service, Klein, whom Public James ings on the issue restitution. Service, Lyman, P. Defender and Jennifer brief, Service, on the Public Defender were appellant.
for I Friedman, Atty., Daniel Asst. U.S. S. Background Factual diGenova, Joseph Atty., E. U.S. with whom A. Tourish, Farrell, and Thomas J. Michael W. Dubester, H. Asst. U.S. At-
Jr. and Mark Evidence The Government’s brief, appellee. tys., on the were October On afternoon of PRYOR, Judge, and Before Chief Steve appellant complainant struck James BELSON, FERREN and Associate following a bottle on the head with soda Judges. evening, Later verbal altercation. with his fist. appellant twice hit James
PER CURIAM: later, on of Octo- the afternoon days Two for the James appellant assaulted three-count ber charged him, time, disfigured by throw- and second two of assault with indictment with counts lye face. (bottle ing in his dangerous weapon and corrosive offenses, complainant got At time in his car and away. drove When appellant employed were Brown came and both shel- back outside a few minutes later, lying at he observed that ter coordinators the Blair Shelter for ground on bleeding mouth, men, Street, from the Eye homeless located at four false p.m., 4:00 teeth knocked out. approximately N.W. At Octo- helped inside, Brown him and an 1988, appellant signed ambu- ber arrived and lance was called. Appellant, complainant, in for work. co-workers, Spells two Steven and Samuel days later, Two approx- October at Makins, get Upon then left to some beer. imately p.m., 4:00 James arrived store, returning sat in men shelter, signed in, and went talk to shel- James’ car and drank the beer James when Clayton ter Montgomery. coordinator Af- appellant began raising to discuss chil- time, James, ter a Montgomery, brief dren. Someone the car then commented together. others went outside Four shelter daugh- looking” had a “nice James, Montgomery, Makins coordinators— *4 Appellant ter. then became hostile toward gathered and supervi- around Brown—then
James, according to James and wit- both sor McAlister’s in car front the shelter. get asking appellant facing nesses.1 After to out The men stood each other and talked car, twenty to for ten to at James exited the car allow minutes which time him, appellant came appellant, building was out and who seated behind to walked toward them. get appellant and out. As James stood facing door, each other next to the driver’s Appellant, carrying bag, a walked within appellant lit a match and burned hole in James, approximately two feet of stood jacket. pushed appel- James’ James then him, directly in with front of and an under- Appellant away. lant into reached shoveling liquid hand motion threw car, bottle, grabbed back soda and bag According into James’ face. to head, shattering hit James on the bottle Makins, appellant witness called James sev- causing and a cut on James’ head. James liquid eral obscene names as he threw the grabbed appellant, then him to the wrestled him, jar at then threw the and which ground pinned and him there until their liquid at was contained James.2 McAlister, supervisor, Herman came out of face, according testimony, James’ to then pulled apart. the shelter and them began “bubbling" and his skin started shift, approxi- “peeling” began
Near the end of the
off.
to
at
James
then
mately
pain
p.m.,
appel-
scream in
and was led inside where his
11:45
Curtis Brown and
lant,
face
flushed with
He was later
shelter,
who
both
was
water.
were
outside the
inside,
hospital,
taken to the
where he remained
out,
signed
went back
left
and
days. Despite plastic surgery,
for ten
together.
they
shelter
When
out-
walked
The
face remained scarred and discolored.
side,
standing
car,
James was
next to his
treating plastic surgeon testified that
appellant
and
called
him.
Brown then
James’ face would never have a normal
shelter, observing
returned to the
James
appearance again.
walking
appellant
towards the
as he did so.
approached appellant
When James
government
presented
also
evidence
wanted,
swung
appellant
asked what he
at
emptied a
appellant
purposely
had
blow, striking
him.
James returned the
lye.
mayonnaise jar
refilled it with
afternoon,
appellant
knocking
in the
him
mouth and
p.m.
Shortly
4:00
before
Appellant
got up
then
rushed
supervisor,
down.
the shelter
October
him,
again punched
McAlister,
appellant
at
but James
him and
on an
had encountered
building.
ground.
Appel-
him
upper
knocked
James then
of the shelter
floor
appellant
point
Spells
had
The two witnesses at
2. James testified he
not seen
were
Brown,
coordinator,
and Curtis
days
another shelter
other
he
two
and the
witnesses testified
during
had
ges-
who
come out of the shelter
spoken
appellant
made
had not
nor
leaning
passenger
conversation and was
in the
during
ture toward him
this incident.
during
window. Makins went into the shelter
the conversation.
that after his
Appellant then testified
which over-
looking
lant
out a window
hospital on October
release from the
where
the front of the shelter
looked
the shelter but decided to
at
went work
standing.
and the other men were
James
pain.
he was
As he
go home because
later,
saw
A short time
McAlister
leave, he observed James with
attempted to
upstairs kitch-
into the shelter’s small
walk
standing in front of
other coordinators
en;
running in the
he then heard water
building,
pounding his fist
with James
later noticed a
kitchen sink. McAlister
Afraid,
palm.
he then went back
into his
resembling mayonnaise
white substance
something
to find
into the shelter
addition, Makins noticed that
sink.
Appellant
protect
he could
himself.
jar
mayonnaise
been
up a
upstairs, picked
that he went
claimed
the incident
refrigerator before
kitchen
cleaner,
attempted
put
bag
in a
jar of
it
there,
found the
longer
no
and he
label
again.
James then
leave the shelter
ground
mayonnaise jar lying on the
to a
obscenities,
him, screaming
approached
liquid
by appellant
thrown
jar
where the
and,
after”
according
appellant,
“started
ground. After the inci-
had fallen to the
he then threw
him.
claimed
contain-
McAlister found a small white
dent
away.
liquid
jar
keep
him
James
lye
steps
between the first and
er of
ap-
second floors of the shelter.
described
Several defense witnesses
incident on Octo-
pellant’s injuries from the
witness, Detec-
15. The final defense
ber
B.
Hayes,
related that he
Harry
then
tive
16 in the
spoke
on October
*5
Evidence
Defense
investigating
assault on
of
James’
course
description
the
Appellant’s
of
events
appellant’s
to
condi-
appellant, and testified
up
leading
to the soda bottle incident
questions
at that time. After several
substantially identical to
October 15 was
hearsay
prior
calling
for inadmissible
witnesses,
government’s
except
that of the
statements,3
fur-
counsel had no
consistent
that,
him,
said,
according
in
James
ob-
announcing that he
questions.
ther
After
terms,
sexual
scene
that he wanted to have
cross-examination, however, the As-
had no
appellant’s daughter. Ap-
intercourse with
approached
Attorney
sistant United States
striking
pellant
deliberately
denied
James
he
the court that
the bench and advised
altercation,
ensuing
the
in
with
bottle
the
ap-
complete
impeachment of
wished
but admitted that
the bottle landed on
Hayes
eliciting
Detective
pellant by
from
during
struggle
he
James’ head
before
about
appellant had told the detective
what
was beaten
James.
evening
on the
of October
the assault
Appellant
questioning
then testified that on
eve-
with-
to be
The court ruled
shelter,
ning
scope
of October
he left
cross-examination and
in the
of
James,
standing
According
passed by
out-
prosecutor proceeded.
who was
Appellant
detective,
then
called the detective
appellant
side.
claimed that James
“something
appeared
evening
and described
him with
of October
struck
Appellant
night
re-
before.
appellant
hammer.”
the incident of
to be a
While
James,
past
Hayes
as-
that as walked
trial that
James had
told
affirmed at
behind, and a
him,
grabbed him from
acknowledged James
appellant also
saulted
appellant
approached and hit
second man
telling
incident that
a detective after the
in
object wrapped
a sock.-
trial,
At
with
people had assaulted him.
two
telling the detective
appellant also denied
II
held him from the rear
that one man had
made
the court
two
Appellant
in
contends
hit him the face with
while the other
first,
instructions:
object.”
errors in its self-defense
filled
a hard
“sort of a sock
involving the soda bottle.
incident
Hayes
tive about the
counsel asked
if
3. Defense
question called
the former
The court ruled that
was attacked
doctor had told him that
hearsay
an in-
inflammatory
and the latter
attempted to elicit
for
with a hammer and later
prior consistent statement.
Hayes
detec-
admissible
what
had told the
by refusing
specialized
give
“false
they appeared
cumstances as
at the time.
instruction; second,
appearances”
by modi-
Instructions,
supra, No. 5.13
Jury
Criminal
fying
“past
by complainant”'
violence
(“Self
Considerations”).4
Defense—General
instruction.
This instruction takes into account the im-
portance
subjective
of
appearance
of
A.
the situation to the
defendant at
time
Appellant
liquid
claims he threw the
acted,
she
he or
and the possibility that the
thought
go-
because he
James
James was
may
wrong
defendant
be
or her
ing
govern-
to attack him. James and the
perception of the situation.
witnesses
ment’s
contradicted this testimo-
ny.
therefore had to decide
appearances instruction,
The false
appellant truly
whether
believed he was
5.15(A), may
No.
warranted
be
where there
so,
danger, and if
whether that belief was
conflicting
danger
is
of
evidence
reasonable.
asked the
court
defendant.
The use
instruction No.
jury:
instruct
5.15(A)
case,
would
redundant
If the
actually
defendant
believed and
emphasizes
It
significance
however.
grounds
had reasonable
to believe that it
“personal perceptions”
the victim’s
which
necessary
to use force
prevent
reasonable,
“may justify
the use
includ
himself,
imminent bodily harm to
he [or
ing deadly,
self-defense,”
Fersner
force in
justified
using
would have been
she]
(D.C.
United
though
reasonable amount
force even
1984).
point
already
This
discussed
it
have
afterwards
turned out
5.13,
general
pro
No.
instruction
appearances
false.
were
key question
vides that the
to be addressed
Jury
Criminal
Instructions
the District
defendant,
jury is
“whether the
un
Columbia,
5.15(A) (3d
1978)
No.
ed.
they
der
appeared
the circumstances
(“Self
Defense—Amount
Force Permis-
incident, actually
him at the time of the
Appearances
False”). Ap-
sible
are
Where
danger
believed he was in imminent
pellant claims that this modified instruction
harm,
reasonably
could
bodily
hold
appearances”
on “false
for the
crucial
that belief.”
*6
jury’s proper
of
evaluation
his self-defense
instructions,
entirety,
taken in
The
their
claim.
sufficiently
legal
therefore
covered the
gave
The court
the standard self-defense
principles
by appellant’s testimony
raised
jury instruction in
in
use
the District of
placed
bodily
him in
that James
fear of
Columbia,
provides
which
that a defendant
States,
harm. Carter
v. United
right
has the
to use force to defend himself
denied,
(D.C.1984),
cert.
1123
469
if
actually
he
he is in
believes
imminent
105
minent
on the
issue of
rect
examination
Hayes,
Detective
aggressor.”
who
Defense counsel prosecutor declined to cross-examine the
generalized
made a
objection
“to
witness,
Hayes
but asked to recall
for re-
Book,”
change from the Red
but did not
replied,
buttal. The court
“I
why
don’t see
object “stating distinctly the matter
you can’t
it on
right
do
cross-examination
objected]
grounds
which he
and the
of his
leading questions
now with
everything.
objection.”
Super.Ct.Crim.R. 30. See
We can save some time.” Defense counsel
States,
Johnson v. United
Ill
justification
you
no
to cross-examine
you
next contends that
the witness that
called.” Defense
argued
prosecutor,
court violated his sixth amendment
counsel further
that the
effect,
by allowing
govern-
confront witnesses
conducted his
“direct exami-
own
*8
impeach
witness,
ment
testimony
his
with
nation” of
she should
that
prior
inconsistent
statement
obtained therefore be allowed to “cross-examine”
however,
through
government’s
insisted,
cross-examina- him. The court
that she
witness,
Hayes,
inquire
of a defense
Detective
redirect.6
about
statement on
examination,
appointment
appellant,
6. On redirect
other
defense
in-
with
whether
quired
Hayes
appellant
talking
spoke
anyone
whether
asked
if he had
else while he was
record,
police
Hayes
up
appellant.
any questions
whether
had set
an-
did not ask
relat-
She
The trial court erred
it re
permitted,
when
cross-examination otherwise
stricted defense counsel
and,
course,
to redirect exami
strength
the overall
nation. The court stated that it wished to
prosecution’s
case.
time,
government
save
but when the
then
Id.
treated the witness as its own and delved
We are also aware
“the
focus of the
beyond
scope
appel
into material
of the
prejudice inquiry
determining
whether
examination,
lant’s direct
the court then
the confrontation
has been violated
should
to im
have allowed defense counsel
witness,
particular
must be on the
not on
peach
through
its
cross-exami
own witness
the outcome of the entire trial.” Id. at
nation,
respect
at least with
to the new
mind,
these
With
factors
we con-
brought
by
government.7
material
out
clude that the court’s error was harmless
“|T]he prosecution
thus able to intro
was
beyond a reasonable doubt.
subject
duce evidence that was not
to con
stitutionally adequate cross-examination.”
Here, Hayes’ testimony was not
Arsdall,
Delaware v.
475 U.S.
Van
government’s
critical
pur
to the
case. The
1431, 1438,
(1986).
106 S.Ct.
1287 juror’s confirmed the trial asserts that the information communication juror improperly from the obtained suspicions jury misunder- court’s that upon by pass- relied the trial court in instructions, his consideration stood sentence, ing in violation of the ABA Code strictly limited to fu- this information was of Judicial Conduct.12 application, present not the case. The ture 3(A)(4) explicitly on three occa- Canon of the Code of Judicial trial court stated part: provides pertinent Conduct sions that the communication was not judge every person sentencing A should accord to Ac- factor in his determination. legally proceeding, who is interested court’s cordingly, we find that lawyer, right or his full heard ac- to be is not future utilization of the remarks law, and, cording except as authorized parte consideration of an ex communication neither initiate nor consider ex law, by proceeding” “concerning pending as ... parte or other communications concern- 3(A)(4) proscribed by is Canon of the Code ing pending impending proceeding. or of Judicial Conduct.15 Applying this standard to the case mindful, however, ap- are that an We bar, judge it is clear that the trial court impropriety pearance perception or can not, through personally did either or in our damaging public confidence be parte clerk, ex law initiate the communica judicial system, though even no violation of juror tion that occurred in The chambers. rights general, has occurred. In contacts clerk, initiated the discussion with the by persons or with the court counsel other judge properly informed counsel of the discouraged, except in strongly are instanc- incident, although belatedly.13 somewhat adequate opportunity es where notice and The quite also made it clear that given parties.16 respond to all Yet we he would not consider the contact as he variety responses recognize also that a sentencing made his deliberations. may appropriate, be de- such contacts judge stated that the communication made pending If a trial on the circumstances. “absolutely no difference to the whatsover parte in an ex judge personally engages I probably going impose sentence am parte communication or obtains ex infor- judge repeated this case.” The this dis sentencing claimer twice in mation that renders him unable to function subsequent proceedings after defense chal impartial adjudicator, may an recusal be lenged the communication. circumstances, such as necessary. other case, re- the instant indirect and accidental Appellant maintains, however, parte ex ceipt non-prejudicial informa- court demonstrated its consideration of the satisfactorily addressed no- parte ex indicating communication tification to counsel of the communication. jury it would revise some of its future presented, we con- Given the circumstances procedures instruction as a result juror response did not reported.14 confusion the While the clude that the trial court’s 12. The ABACode imposi governs judges 15.Appellant also cites the trial court’s the conduct of Evans, the maximum sentence as further evi the District of Columbia. In re 411 tion of Bell, (D.C.1980); acquit juror’s explanation A.2d 232, for the 996 In re 373 A.2d dence that the court, (D.C.1977). improperly upon by relied tals was process of law. violation of his due unsupported by any evidence 13. The court did not This contention is notify counsel until the Moreover, the trial court has in the record. subsequent sentencing proceeding. start of the sentencing. broad discretion in the matter of McPhaul v. United Judge merely Wolf he would indicated that (D.C. 1982). juror’s in connec- take the remarks into account general jury tion with future instructions. He stated that he had revised some of his 16.See American Bar Association Standards for type instructions avoid confusion of Relating Special Criminal Justice Func- juror that he related. He also indicated (2d Judge, tions of the Trial Standard 6-2.1 ed. taped jury would hesitate to send instructions to Supp.). juries, future as he did in this case. (d)At constitute abuse of the broad during probation discretion time dealing it period period has with matters of sort.17 or rep- or restitution *11 aration, request may the defendant and
y grant may hearing the court on any for Act of for its award. rizing support its ages the ning restitution award on two trial made at the rate of $50 trial due $6000 aration. probation make reasonable restitution or Enacted ordered, the court shall take into consid- pittance” that of damage eration the number of each other sentence Court, Appellant’s final pain, suffering court (b) (a) person process court violated his Supp.), prison. Appellant six months after court defendant, statute, in restitution Mr. When restitution In criminal cases the court failed to in award; the or as a sentence ordered convicted of does not authorize restitution the when it ordered him to D.C.Code § D.C.Code 16-711 trial court used as Sentencing Improvements imposed the defendant’s make victim, inmay, or contention the to disfigurement, right (2) attacks victims, findings per month, begin- § grounds: (1) payments as a 16-711 provides: or any that the autho- addition to itself, require to reparation James. The resources condition is offense the procedural the actual of fact to ability Superior (1981 release court’s to basis dam- rep- any pay the be to to is $6000, stating & The court then set the restitution fail to dressed the prived him procedural not make to the various factors eration released... will Mr. Sloan whether that will will not come about. ment_ ing the could turn has fering dicated that he was against carry aration while he appropriately obviously. [Mr. Appellant first or matter related to disfigurement.”19 sentencing hearing, reparation. advanced compensate the complainant James some out able to continue that any man that Mr. § will be disfigurement. any Mr. Sloan won’t be able to [18] of these issues I that this factual 16-711(b), has] out “would take into account Sloan, himself, I presume think argues such restitution or is to or had medical in the he findings incarcerated, mandated I going jail figure be a but most inadequately is and the may the trial court ad- plan that the court did due and it I to Mr. James in of restitution properly briefly: was process. paper judg- thereby don’t know when go for very expenses, pain, figure a “mere file suit way that he but be respect ... consid- he is well rep suf de- At earn, A. obligation to defendant support dependents, and other matters guided Our examination this issue pertain ability as to the defendant’s legislative purpose by the 16-711. § reparation. make restitution or purpose adopting Council’s stated
(c)
Sentencing Improvements
fix
The court shall
the manner
Act was “to
performing
reparation.
promote
or
restitution
use of restitution and commu-
analysis
largely
applied
appellant:
17. While
trial
as
court’s refusal to continue
without
juror’s
investigation of
“bearing
case for further
state-
damage
actual
mind the
the vic-
discretion,
ments
not an
note
tim,
abuse of
we
resources of
Defendant which are
that,
case,
given
disposition
our
of this
see sec-
incarcerated,
bearing
nil while he’s
but also
court,
remand,
infra,
may
tion V
trial
earn,
ability
mind the
but
Defendant’s
also
juror’s
investigation of
allow a further
com-
considering
obligation
depend-
support
Indeed,
ments.
have undertaken
ents,
pay
required
...
defendant
...
[is]
investigation already.
such an
If the trial court
$6000.00."
the sum of ...
pursues
option,
authority, on
it has the
remand, to reconsider the sentence.
$100,000.00
19.The trial court then noted "that a
proceed-
verdict would be a small one in a civil
passing
imposing
Before
sentence and
ing” in
order,
this case.
briefly
again
restitution
re-
court
16-711(b),
counted
but
§
the factors listed
sentencing
Analysis,
Process: A Procedural
nity
options.
97 Harv.
service
4-202,
(hereinafter
District Columbia Stat L.Rev.
(1984)
Vic-
937-39
D.C.Law
utes-At-Large, 1981-82
Har-
Compilation
Restitution).
tim
See also State v.
at 714.
ris,
(1976).
See Davidson v. United
With we rec due nor ognize differing objectives mally required sentencing proceeding of a in a civil afforded, litigation resulting injury panoply proce criminal are the entire Although rigid a victim. required we draw no dis dures in a civil tort action are not Pettit, tinctions, People general supra, See v. purpose necessary. a civil tort 88 litigation compensate 206-207, 880; is to Mich.App. the victim’s at 276 N.W.2d at Harris, supra, damages. 598-599, State v. purposes pros The of a criminal 70 N.J. at Restitution, ecution, however, 38; Note, Victim punishment, include de 362 A.2d at supra, 941-44. See also terrence and of the offender. 97 at rehabilitation Harv.L.Rev. Lemire, 16-711 does have United v. U.S.App.D.C. While restitution under States 232 § cert. effect, 100, 126, 1327, (1983), compensatory an incidental 1353 stat 720 F.2d denied, 1226, 2678, primarily ute is directed at the offender. 467 104 S.Ct. 81 U.S. Lack, 16-711(b), (1984); v. example, Section State largely fo L.Ed.2d 874 98 N.M. 500, 506, 22, (1982). cuses the determination of 28 the award on 650 P.2d ability offender’s to make restitution or recognizes that the main approach This Reparation. is to determine the purpose of a civil action The A purpose of restitution and who is liable for it. as a criminal extent of loss sentencing damages option precise under 16-711 must estimate of is therefore § critical, high therefore in be viewed as corrective nature. and a trial with a level Braider, United States v. Daily safeguards necessary 112 is to en- procedural Wash. L.Rptr. 1441, 15, (D.C.Super.Ct. 1445 calculation of the loss that June sure accurate 1984). In a criminal per- Restitution forces the convicted the tortfeasor must bear. however, liability son to prosecution, be held accountable for his actions the societal issue, United of the accused is injuries only upon a thereby. caused 907, impose McLaughlin, States v. F.Supp. finding guilt the court must 512 909 (D.Md.1981). sanction, necessarily lim- penal Its function serves the cor- which not deterrence, punishment, rective ends of and ited or defined the amount harm Braider, rehabilitation. United v. on the victim. The focus States offender inflicted supra, 1445; on the act Daily Wash.L.Rptr. 112 at of a criminal action is instead Note, offender, Victim Restitution in the precise and a calculation Criminal and the 4-120, claims, however, Judiciary, Report on Bill Section- 20. that the court’s on the hearing deprived provides By-Section Analysis, restitution order him of a at 6. The statute computation Yet restitution. may request and the court "the defendant request hearing did not in this case. More- hearing may grant related to matter over, express 16-711 its terms leaves the § reparation.” plan D.C.Code of restitution or grant request decision to such a with the sound added). 16-711(d) (emphasis § sentencing judge. discretion of the Committee 1290 supra, necessary, restitution award is not precise As noted calculation of damages contemplated is not primarily compensa
since the award is not
in a sentenc-
ing proceeding, but is
Note,
reserved for a
corrective. See
tory, but
civil
Victim
Therefore,
action.
we conclude that
Restitution, supra, 97 Harv.L.Rev.
at 945.
damage”
16-711(b)
term “actual
in-
§
sentencing
discretion of the
liquidated damages
cludes known
such as
fashioning
controls,
the award therefore
so
expenses,
wages,
medical
lost
and other
long as there is a factual
basis
expenses connected with the crime. Sec-
support
record to
the court’s determination
16-711(b)
does not include those dam-
of the amount of restitution. State v. Wil
ages
presently
which are
readily
not
son,
352, 355-56,
414,
274 S.C.
264 S.E.2d
measurable, however, since these can be
Harris,
(1980);
supra,
State v.
416
70 N.J.
accurately
determined
pro-
a civil
598-599,
at
B.
reasons,
foregoing
For all of the
Appellant also asserts that the
judgment
of conviction is affirmed and
trial court
pay
erred when it ordered him to
case remanded for further consideration of
pain
restitution for Mr. James’
and suffer
restitution,
the award of
as directed.
ing. Appellant argues that the term “actu
Affirmed;
pro-
damage”
16-711(b)
al
remanded
does not encom
§
for further
ceedings
opinion.
consistent with this
pass pain, suffering,
mental distress or dis
figurement.
general,
agree.
we
Given
FERREN,
Judge, concurring
Associate
the corrective
as a
nature of restitution
part
dissenting
part:
device,
sentencing
we find
a victim’s
damages
liquidated
must be
easily
except
or
mea
I
opinion
concur in the court’s
IV,
respectfully
surable
form the basis of
I
such an award. Part
from which
dissent.
diversity
21. There exists a
of views about the
rior Court chose to follow these authorities.
proper scope
above,
jur-
pointed
a restitution award. Other
For the reasons
out
we decline to
damages
isdictions have held that recoverable
do so.
unliquidated
include
ner,
losses. See State v. Gar-
(1977);
115 Ariz.
I. ted). apparently Counsel surmised that the 4, 1985, judge’s April On law so, judge may more inclined to do how- clerk, inadvertently- judge, and thus the ever, jury he itself would when believes juror. parte information received ex misunderstanding have convicted but for a jury acquitted explained why It had Thus, of the court’s instructions. defense charge disfig- appellant on the of malicious understandably sought to in- time jury, in do- urement and revealed jurors purpose for the of elicit- so, terview the ing judge’s had in- misunderstood including, ing complete more judge disclosed this con- structions. information — parties May possibly, entirely report to the six later on different tact weeks sentencing. immediately might help He before deliberations —that disabuse the jury’s “interesting distor- stated that the judge any meaningful reliance on explains jury’s tion of instructions ... parte the ex contact. that, extent,” to some and he added verdict IWhile do not at all doubt the trial henceforth, change, he would in order to matter, judge’s integrity in I believe clarify, disfig- the instruction on malicious denying abused his discretion in a continu- everyone urement. But he also assured fact-finding purpose. ance for this Counsel jury’s concerned that misunderstand- investigate accuracy had a ing, leading acquittal, “makes abso- judge, information sen- before lutely no difference whatsoever to the sen- tencing, parte juror received ex from a probably going impose tence I am in this through a law clerk. This second-hand in- case.” juror impressed formation from one responded by request- Defense counsel enough that he announced he ing a brief continuance to interview result, intended, as a to revise the standard
juror, perhaps jurors, adding: other disfigure- on malicious instruction given says “And that the Court that that irresistibly me ment. It follows—to —that *14 explains jury having the verdict without should received time defense counsel have jurors, heard from of the other I think situation, in investigate to the entire order that it does make a difference in terms of present to to the trial court whatever evi- given.” what kind of sentence is to be arguments dence and were available either obviously Defense counsel was concerned assure, hearing, judge to after a that the judge might that the use the information by improper not influenced the contact juror, apparently from this one he or, selecting alternatively, sentence to a true, imposing credited as as a basis for a judge given himself convince the recuse longer sentence for the assault with a dan- from psychological the risk of a taint such gerous weapon might than he otherwise disturbing information. imposed. judge, have It is true that a trial selecting sentence, precluded a is not II. considering evidence that related to a proffered if defense counsel’s But even charge acquitted. on which the has po- reason for a continuance had doubtful Bernard, F.2d See United States v. 757 tential, given judge’s the trial statement (4th Cir.1985) cases); (citing 1444 jury’s misunderstanding made “ab- that the Sweig, v. 454 F.2d 184 United States whatsoever,” there solutely no difference (2d Cir.1972); Camp- United v. States cf. 367, 380, for a continu- bell, was another obvious reason U.S.App.D.C. 221 684 F.2d least, was (1982) judge, very the at the (declining “pursue Sweig 154 ance: by “appear- reading,” affirming problem to its trial confronted the of ultimate but relating impropriety.1 court’s sentence ance” of based on evidence (1955) respect (quoting Supreme United 1. The Court has stated with L.Ed. 942 Offutt 11, 13, 11, 14, L.Ed. judicial perform S.Ct. 99 the similar issue of 348 U.S. 75 “[T]o bias: McMillen, (1954)); high Pepsico, way ‘justice Inc. v. its function in the best must 11 see also (7th Cir.1985) (judge must satisfy appearance justice.’" 460 the of In re Mur- 764 F.2d 133, 136, 623, 625, chison, is 'a rea- from case "whenever there 349 U.S. 75 S.Ct. 99 recuse self problem “appearances” sig- This juror fered basis for interviews—but it— nificant, learning not trivial. After develop also to an obvious alternative ba- jurors acquitted appellant of mali- appearance impropriety. sis: the There disfigurement they apparent- that, cious because is no assume hearing reason to after a ly instructions, had misunderstood his for given which counsel had been time to judge imposed possible trial prepare, the severest judgment the trial court’s could dangerous for a affected, sentence assault with point not have been even to weapon. That only sentence included not recusal. imprisonment $6,000 the maximum but also Accordingly, agree I do not ma- today restitution which this court holds jority judge same that the can now cure inadequately justified by findings both problem, remand, particular by “al- unlawfully enlarged pain fact and cover lowpng] investigation ju- further suffering. justified However the im- if ror’s comments” feels court it is prisonment be, however reason- appropriate. Ante note interpretation applica- able judge’s Whether or not defense counsel’s inter- provisions may tion of the restitution have jurors, by views with the followed hear- time, unquestionably appears been it at the ing recuse, on a motion to would have judge may that the trial “thrown have showing prejudice resulted in a of actual statutory limits, appellant, book” at within sentencing, procedure, this remand after all compensate perceived injustice for happened, that has would not now be acquittal disfigure- for malicious enough appearance to eliminate the of im- juror’s perception
ment—a enhanced propriety. I would remand for resentenc- mistake announced for which trial ing by judge, another “‘both judge responsible. may have felt judge’s appearance sake and [for] appearance impropriety This is all the Ewing, States v. justice.’” United First, (5th Cir.1973) curiam) more serious for reasons: (per two F.2d to disclose the ex judge (citation omitted). days waited 43 parte (described judge him- contact matter), yet
self as a “relevant”
gave defense counsel a few seconds at sentencing hearing, immediately after contact,
disclosing try persuade significance
the court of the of that con- Second, did
tact. not ad-
dress, thus been not have aware of, appearances problem; far as one ONTELL, Appellant, David J. reading transcript, can tell v. judge juror only disclosed the contact HILL CAPITOL E.W. LIMITED misunderstanding jury’s show the PARTNERSHIP, Appellee. interest, instruction, general as a matter of judge for the that the to state record No. 86-472. fact, not, would be affected it at Appeals. District of Columbia Court of sentencing. significant respect, In a there- fore, judge's comments missed the Argued Feb. 1987. point. July Decided
III. sum, should have
granted requested per- continuance prof-
mit not explore case”) Services, Morgan, finding ‘appearance (quoting SCA sonable for a Inc. basis’ of an (7th Cir.1977) curiam)). (per partiality 557 F.2d under the facts and circumstances’