United States v. Lloyd R. Grover

erating temporary certificates, under same, Blanco, time “just

will receive the benefit of the

reasonable rate.” may

It be that condition war- Blanco’s a difference in treatment rants granted

producers But the claim relief. cannot be

of unreasonable discrimination jurisdiction.

rejected for lack of It

only now, features with the retroactive review,

of the order under may fully It be that

claim comes alive. considerations,

administrative other

reasons, justify will the Commission

drawing between a distinction Blanco producers receiving the benefit

and the “just and reasonable rate.” spe-

Commission did itself not address

cifically petitioners’ to the merits of

claims, require and our remand will

consideration. proceedings not

Remanded for further opinion.

inconsistent with this of America STATES

UNITED

Lloyd GROVER, Appellant. R. 71-1355.

No. Appeals, Court

United States District of Columbia Circuit.

Argued April 1972. Sept.

Decided

PER CURIAM: appellant on The was convicted both charging second an indictment counts of 22-2403) (D.C.Code degree murder § (D.C. carrying pistol an and unlicensed challenges 22-3204). Appellant Code § judgment sentencing five to him to the twenty years count, as- on the murder serting error it was for the deny to am- defense counsel’s plify instruction on self-defense. challenged Appellant his con- has not charge, weapons on which viction imprison- year’s a he was sentenced to ment.

I. Facts concededly Appellant To- Jessie shot p. August on liver at about m. requires Appellant’s contention begin that we statement facts light appellant’s testimony, with of game began approxi- crap mately appel- p. 4:20 m. at the home after lant’s mother. The ended appellant and minutes about 15 when engaged appel- quarrel Toliver over winning over Toliv- lant’s consistent and “cussing” in front er’s stop, mother. Toliver refused When punched face, appellant and him in the gathered his be- bloodied him. Toliver longings saying house, left appellant, “I’ll be back.” Appellant he took Toliv- testified that Doolan, Washington, Devin John D. C. parting remark to come er’s threat (appointed appellant. Court), for weapon, back knowledge with a based Larimer, Atty., David G. Asst. U. S. in- that Toliver had been Flannery, with whom Thomas A. U. S. slashing volved prior knife incidents filed, Atty. the time the brief was go Appellant decided occasions. Terry Evans, John and John A. F. Asst. home and arm himself Toliver re- lest Attys., brief, appel- U.S. were and, appellant there, turn weren’t Titus, Atty., Jr., lee. Harold H. U. S. my Appel- “he’d take it out on sister.” McMullin, and James F. Asst. U. S. apartment lant went obtained Atty., appearances ap- entered also pistol cartridges. As pellee. house, walked back toward his mother’s BAZELON, Judge, he on R Before encountered Toliver Chief Street.1 conversation, exchange WILKEY, After a LEVENTHAL Judges. Circuit brief Toliver, fired a shot at lant, testimony, 1. There is a conflict in the or whether the called him. appeal, over. relevant whether Toliver intercept appel- the street crossed person where a search of his disclosed also A second mark. shot wide fourteen rounds of ammunition target. Appellant extra testified missed its that, walking pocket of his shorts. outset, he had backed from the away total distance from Toliver—a appellants differed While version pulled the re- feet—and that some 35 police officers, that of the Gov- pocket Toliver only after volver from his dispute his ernment does seem to him in a toward continued testimony a knife. that deceased had suddenly pulled menacing fashion, and Indeed, policemen he one the testified of from his knife belt hawk-billed to knife in Toliv- saw what looked be a gesture threatening (indicated made a right hand, er’s held down at his side. Appellant jury.) fired to the And stated several defense witnesses ap- missed, kept advancing, deceased they swing the Toliver a knife at saw backing up, pellant, four more shot still appellant.2 times. Appellant’s support testimony of in II. ON SELF-DE- INSTRUCTIONS diverged from his claim of self-defense AND FENSE PROVOCATION testimony police officers, of two who the happened approaching intersec- to be Appellant’s principal contention is patrol in a tion of car, and R Third Streets judge’s portion in- that the trial shot. heard the initial when provocation and self-de- structions on They To- and saw looked down R Street confusing applied fense when to were retreating appellant, from who liver particular that case and facts of this During gun in their had the his hand. judge provided clarifica- should have backing away observation, deceased was jury: judge tion. The instructed time, entire and made no threaten- the ing Generally, the of self-defense gestures. defense overheard One them provokes is not available to one who say Toliver to the “You can’t difficulty, im- using is, me, you’re Thereup- the portant and it hit blanks.” you shots, to who was determine on, fired three more aggressor, or the fatally wounding police the defendant The of- Toliver. more promptly Mere words without decedent. arrested the ficers provocation.3 police are headquarters, never considered and took him to Although Now, defendant contention that no knife was found on or near appropriate body, suggested makes it acted in self-defense it was you may picked up by law of I knife should instruct have been one many bystanders gathered did not If the defendant who self-defense. immedi- ately provoke shooting. time of and at the assault after The Government grounds to had reasonable made no issue of the occurrence this at trial and conceded throughout good had, fact, in faith believed that Toliver in believe and been complaining the decedent was armed. witness or him serious life or do about to take his 3. The full text of the instruction self-de- bodily injury, re- the defendant was fense was as follows: quired whether retreat nor to consider Now, spoken justifiable we have here of safely was entitled he could retreat but homicide, and excusable and also included ground force with and meet stand in that is self-defense. In this case it is him made force and meet attack the contention he defendant manner and the decedent such acting in self-defense at the time of as under the circumstances such force you may say this I occurrence and it, you the moment as find he acting if the defendant was self-defense actually reasonable believed you, you I as shall should outline it necessary ground to save to believe was guilty find that then he would not be protect serious from his life himself or degree either murder man- second bodily injury. slaughter. ap- acting hand, the time On he as at the other was not The use of force justified may necessary guilty pears reasonably self-defense then he be depending you though may none, turn out afterward either or on what even it appearances there false and find were from the evidence. prior blow, if, whether (cid:127)fense to the at- counsel were asked fatal When tempts good disengage any objections, faith him- there were replied no he had self from the communi- trial counsel altercation and objection requested clarifica- cates his desire so to but he do opponent.4 in the because of the tion provokes phrase “one difficul- “red omitted ty.” erro- He feared the suggested appel- book” instruction that embod that, neously conclude because qualification.5 affray ies there aggressor However, lant instruction, was no disput- fact not —a testimony by there was no foreclosed ed defense —he anyone to the that he had else effect claiming aggressor street scene shooting, been than an which more occurred any retreated, then nor was urged to hour Counsel the later. incident version a reconstruction of the specifically that, jury de- in instruct the naturally suggested it should termining that have appellant was whether or not judge, to trial they self the absence aggressor, his consider the must suggested shooting, a instruction. not conduct at the time of the at actions earlier incident the Coming to the of need for 2. issue request was his mother’s house. given, the clarification of instruction as refused. may jury appellant is concerned that thought intended have noting begin by 1. We jury a claim of self-defense to disallow “generally defense of ag- the rule that solely because been one who to is available gressor at his in incident the earlier subject provokes difficulty,” is mother’s home. explain refinements, exceptions, and rule which the the circumstances under Certainly, ac take could applied. Thus, is man who appellant’s prior aggressive a should be count of be instigator ulti- Toliver, example, an encounter for havior toward mately proves may fatal self-de- claim could infer from the earlier assault design Ass’n, g., in was injury fact neither to do serious 5. e. District of Bar See Columbia danger Jury Young Lawyer’s nor be Section, it would done In- Criminal Columbia, or need to in actual use so much force In- structions the District of (2d self-defense. 5.17C, ed., 1972) 241 struction : Generally, is defense of self-defense aggressor or if 'If the defendant was the provokes not available to the dif- one who provoked himself, he the assault ficulty, is, important and it right cannot invoke the of self-defense you aggressor, to determine who justify However, if one his use of force. Mere or decedent. provokes later withdraws conflict words without more are never considered good faith, from it in and communicates provocation. actions, and withdrawal words justified pursued, he is thereafter he is 546, States, v. Rowe United 164 U.S. 17 using deadly from force to save himself 172, Harlan, (1896) (per 41 L.Ed. S.Ct. 547 danger bodi- imminent or serious death J.). States, Harris v. 124 See United U.S. ly harm. App.D.C. Frady 308, (1966) ; 364 F.2d 701 Although emphasis instruction’s 99, U.S.App.D.C. 78, v. United 121 “pursuit” victim, retalia- rather than 84, opinion); (concurring 348 F.2d 105 tory attack, renders less formulation denied, cert. U.S. 86 S.Ct. perfect, it at clear than least makes (1965). Alternatively, L.Ed.2d 160 the rule aggressor permanently does not forfeit By is sometimes stated reason of the thus: right self-defense. aggression, imposes initial law aggressor duty binders, af from the are withdraw These instructions in red fray. having attempted widely judges But once to with District used deadly retreat, right Columbia, suggestions, draw or to meet hut de- are deadly precedents, force See force is rekindled. and are of course rived (1969). seq. binding. Perkins Criminal et Law 1005 Standing toward Toliv- alone, malice concluding harbored para- likely graph er, or that was more of the self-defense instructions aggressor open in the street have been be to the construction that They aggressive consider this ev- could encounter.6 behavior at testimony game weighing appellant’s precluded dice idence his later assertion instigated con- the fatal that Toliver When defense self-defense. counsel issue, frontation.7 focused with a “objection,” he said was not an the court have of course it would been But (Tr. 491): said deny otherwise established error an ap thing I think the whole solely is clear because claim of self-defense aggressive libbing previously when I start ad pellant had taken explaining the cir instructions without action toward Toliver. Unlike ability really present sit down and write Harris cumstances down, them up think States,8 out, them I the incident at end likely every in trouble where were not ev- word, and the street confrontation ery something. essentially Now, nuance merely stages means continu I in an bar, don’t think there case chain of In the chance ous events. this, so I episode essentially shall not instruct them fur- ther in fight.” “one-punch this. of the The effect disengagement pas parties and disposition is not without its sage to restore of an hour’s time was weaknesses. It was made without even quo status them to the ante. awaiting the Government’s submission privilege earlier of as to the request. on the defense not clear It is dissipated, any attack he assault had and why judge should have concerned might upon appellant would launch being himself with “in trouble” because constitute Con unlawful retaliation. granted by requested a clarification disability appellant comitantly, on possibility defense counsel had some aggression prior was lift because of his of It should not have merit. been deci- ed, to defend himself and he was able nothing in sive that defense counsel had against any subsequent Rowe v. attack. writing court; this, to offer the after supra. par States, United When both given all, was an instruction not encounter there ties entered the street defense, of and trial counsel jury moment, had a critical and was knowledge specific prior no had of the two men was to determine which phraseology judge would use.9 instigator that time. supra, is admissible for States, that evidence of this sort held 6. In Harris v. we United showing intent, purpose mo the limited of entitled to intro- the Government was States, tive, prior Harris v. United and the like. the de- duce evidence of attack States, supra; 82 ceased, Burcham v. U.S. United which some 50 minutes be- occurred 283, (1947). App.D.C. jury stabbing, See 163 F.2d 761 and that fore the fatal Marcey, indeed, and, 142 United States v. consider this evidence — (1971) Harper 253, 256, 281, ; leading up F.2d 284 440 fa- to the “all the circumstances U.S.App.D.C. 324, States, 239 affray” determining 99 whether or tal —in (1957). Drew v. United plea F.2d Cf. of self-defense. to credit the accused’s 15-16, U.S.App.D.C. 11, 331 F. opinion addressed Our in that case was (1964). and, wholly admissibility; 2d 89-90 question accused, proof clear because there was 6, supra. 8. note See knife, initiated the had armed with while given similar to one The instruction seeking deceased out fatal encounter 5), (supra, defense the “red note but book” unnecessary home, for us to it was at his portions could not know what counsel aggressive con- consider whether already used, noted and as these would be of law vitiate duct would as a matter 1). (see point included one of them was subsequent claim of self-defense. Indeed, given the trial the instruction red book prior identical with the was not un- assault of course constitutes 7. The phrase “provokes suggestion, charged uses the which is clear But the law misconduct. actually give he at the moment believed” serious considera would We necessary reasonably believed was view if we were tion to reversal against bodily protect significant possibility serious harm. was a that there possi prejudice. But we think essence, the ver- In we conclude that gossamer. de bility, As crediting jury’s dict reflects put requesting init trial counsel fense prosecution witnesses who testified clarification, incident was the earlier the fatal came when the shot slight punch.” It “a with a altercation firing gun on the re- large The essence not loom at trial. did treating It knife of the deceased. dispute at the trial prose- point defense the nature of the counsel was summation conflict, cution witnesses were The wit the street confrontation. jury fact. determine the length on such were examined at nesses appel- accept the contention of We could or not matters as whether only if constructed as lant counsel we street; across the beckoned the deceased sup- possibility that serious deceased it was or the whether posed they being told to convict were moving other when who was towards the they wholly even believed shooting occurred; de whether simply testimony.10 And we do ceased threatened possibility. not take this as a serious knife; why appellant him had armed prejudicial discern no error.11 We self; respective states what were their Affirmed. shooting. just of mind over, More before possible ambiguity dissenting: of this Judge, BAZELON, Chief context, paragraph was offset August 21, the afternoon On instruction the rest the self-defense Grover, Lloyd and Jessie appellant, 3) (supra, note told the to focus longtime acquaintance, en- Toliver, a time of this occur the situation “at the friendly gaged as a in what started (twice), acquit if the de game appellant’s and to rence” mother. home of at the fight; game ended in a Grover under the The “as fendant used force An hour and in Toliver the face. find, struck case, you circumstances of the as theory that the Government (note supra). substantiate appellant, 5, That word- conflict.” the seeking de- a with the show-down ing possibly likely ambi- to raise the is less likely aggressor ceased, in the the guity was noted defense counsel. encounter. street appellant Concededly was the it who was attention has called our The Government occurrence, aggressor one- earlier by appellant’s point counsel. raised a not to game. punch the dice incident malice, on of his instructions In the course charged: remaining reject appellant’s the court conten- 11. We wrongful determining is act a admitting whether In intentionally in court erred tion that the trial is, done done and carrying ex- fourteen evidence that he was aforethought. malice with cartridges pocket of in the time tra his evidence, fleshing shooting. out virtually passage in to the identical is That picture appellant’s of mind of state disapproved v. United in Green prior struction immediately to the events from the U.S.App.D.C. 98, F.2d 1368 405 132 shooting, mal- relevant to the issue of was inaccurately equating (1968), malice with as Appellant his actions contended that ice. However, in the second act. safety an intentional of concern for the were motivated U.S.App.D.C. 424, case, 424 F.2d 137 Green Yet the evidence his mother and sister. 997, denied, (1970), 91 400 U.S. cert. trip 912 appellant’s his to and from that showed (1971) in 447 L.Ed.2d barely S.Ct. his three blocks residence — States, 140 approximately Mitchell one mother’s house —took (1970), that er held we appel- 434 F.2d evidence that hour. There was also non-prejudicial when sort were rors of this a tow- to secure lant had taken the trouble accompanied by cor instructions other permitted an in- These circumstances el. by emphasizing rectly malice preparation defined cast careful ference of “man-endangering” mind. requisite of state im- return intent asserted doubt in totality malice instructions of the mediately protect The and sister. his mother error present render case likewise am- cached extra Evidence legitimately pocket harmless. could in his munition nearby provoke later, If the did met on a defendant half the two a assault and at time the occur- The admits that street. grounds He as- rence had reasonable to be- shot and killed Jessie Toliver. killing justified be- lieve . . . that the decedent was was that the serts himon about to take his . life . cause Toliver was required in self- was not retreat that he acted defendant knife, a appellant’s trial for second At defense. degree murder, was some evidence according hardly It need that, be said support ver- presented tended grammar ordinary standard rules of tend- evidence sion of the event. Other phrase understanding, time “at the retreating Toliver was ed to show that only of the occurrence” modifies were fired. when fatal shots part subsequent In- sentence. deed, placement phrase im- jury question for the The critical was plies distinction time of between the ag- Toliver

whether or provocation the shooting. the time of gressor when met one another ambiguity If The remains. question appeal The this street. anything, it is reinforced the remain- jury whether, fact, this is made der instruction. determination, whether, be- critical majority ambiguous The further contends that instruction from cause an the large altercation “did loom earlier court, trial focused it instead enough; fight at trial.” This true dice is that concluded the course, way but, in no deciding crimi- Grover was disputed place. nally responsible that it had taken There death. question no ear- evidence The instructed the fight presented jury. lier It is not that “the defense of self-defense figured prominently appellant’s in the provokes diffi- one available testimony. Moreover, own the Govern- grants given culty.” majority that, The emphasized closing ment re- it its in- the facts an marks : heres in might instruction. Who, gentlemen, actually ladies and diffi- well have assumed “the it struck the first blow? Who culty” referred which the trial house, according in the to Grover’s following fight encompassed the earlier testimony, own out at a struck game. They have well that, sitting table, man at a this man to mean taken the instruction peace sitting who struck out at man law, matter of blow . . . the table ? triggered a earlier encounter continuous emphasizing en- remark the earlier leading series events emphasis entirely counter—an consistent They might supposed, well have death. with rule the erroneous law legal pendulum erroneously, me- charge suggests any lingering governing required —dissolves chanics charge doubt that the in the they appellant guilty them find the prejudicial effect. aggressor in found him Nonetheless, majority concludes encounter. jury’s “that the verdict cred- reflects the possibility, majority admits iting prosecution who tes- witnesses “gossamer.” It then it dismisses tified the fatal shot came when portion of contends contested gun and fir- ambiguous instruction, in the while ing retreating knife de- of the abstract, in the clear context I that I do not have ceased.” confess agree. I instruction as a whole. cannot powers of divination which with nothing contrary, find On I majority apparently I do not blessed. ambiguity. instruction cures the know the crucial determinant what the trial court Earlier the instruction jury’s I do verdict have been. misled said: know whether charge. by the IBut think there is a

significant possibility that it It is was. thing law, judges, one trained in context,” “in read an instruction accurate, to derive from it an if not en-

tirely appli- clear, of the law statement quite

cable to the another It is facts. juries laymen

assume that can do the

same. determining guilt system oper

Our assumption juries

ates on the will given tempered, apply they the law are — justice—

perhaps, their sense of own It is essen facts that find. clearly

tial that the and accu trial court

rately governing law set forth the responsibility

case: instructing “. . of

as to the elements of the judge.” fense v. rests Green 98, 405 (1968). F.2d 1368, The trial court

here failed in task.* this vital Lloyd justice,

In the interest of Grov- degree

er’s murder conviction of second should He af- be should be reversed. guilt forded a new His should be trial. fully determined informed unambiguously facts, accurately guessing law, not

informed of the

game played rubric of under the harm-

less I error. dissent.

UNITED STATES America

Tyrone GASKINS, Appellant.

No. 72-1833. Appeals,

United States Court District of Columbia Circuit.

Sept. 5, 1973. * pointed Defense counsel out way proper would in affect result. requested to the trial States, clarifica- See supra; Green v. United Belton ; tion supply trial court declined to it. is not a which coun- (1967) (Bazelon, J., F.2d C. dis sel failed to call senting) the court’s attention to the problem assuming —even such failure

Case Details

Case Name: United States v. Lloyd R. Grover

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 5, 1973

Citation: 485 F.2d 1039

Docket Number: 71-1355

Court Abbreviation: D.C. Cir.