692 F.2d 314 (4th Cir. 1982), 81-5244, United States v. Black

Docket Nº:81-5244.
Citation:692 F.2d 314
Party Name:UNITED STATES of America, Appellee, v. Robert D. BLACK, Appellant.
Case Date:September 28, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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692 F.2d 314 (4th Cir. 1982)

UNITED STATES of America, Appellee,

v.

Robert D. BLACK, Appellant.

No. 81-5244.

United States Court of Appeals, Fourth Circuit

September 28, 1982

Argued May 7, 1982.

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David J. Fudella, Alexandria, Va. (John D. Grad, Hirschkop & Grad, P.C., Alexandria, Va., on brief), for appellant.

William G. Otis, Sp. Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Rosemary E. Glynn, Sp. Asst. U.S. Atty., Washington, D. C., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Robert D. Black, an inmate of the Lorton Reformatory, appeals his conviction for assaulting and impeding a correctional officer with a deadly weapon. Assigned as grounds for reversal are (1) the admission of certain evidence which defendant contends was irrelevant and unduly prejudicial, and (2) the jury instruction on the issue of self-defense. Finding that the self-defense instruction was indeed erroneous, we reverse and remand for a new trial.

I.

Black was charged in a single-count indictment under 22 D.C.Code Sec. 505(b) (1981) for using "a dangerous and deadly weapon, that is, a knife" in "assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], and interfer[ing] with" a correctional officer engaged in the performance of official duties. The incident in question took place in a cell block at Lorton when Black refused Officer Alvin Henry's order that he return to his cell. It is undisputed that Black threatened Henry with a homemade knife, backed Henry off, and finally returned to his cell. Black testified that he drew his weapon only after Henry swung at him with a putty knife. Officer Henry denied that he wielded a putty knife or any other weapon.

II.

At trial, the court admitted Officer Henry's testimony that Black, after returning to his cell, threw human feces at Henry. 1 Defense counsel objected to the introduction of this evidence as irrelevant and unduly prejudicial. The district court, however, ruled the evidence relevant and admissible as "part of the overall scheme of" the crime.

The parties treat the admissibility of this evidence as being governed by Federal Evidence Rule 404(b). 2 Black argues that the

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testimony constituted evidence of "other crimes" which should have been excluded. The government counters that the incident followed so closely on the armed confrontation that evidence of the subsequent act was admissible on a "res gestae" theory as an exception to Rule 404(b).

We need not choose between these opposing positions, for the fact is that Black was charged with "assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], and interfer[ing] with" Henry in the performance of Henry's official duties and with using a knife in so doing. The statute under which Black was charged does not treat use of a deadly weapon as a separate violation but instead as a factor which aggravates the offense of assaulting or interfering with a public officer. 3

According to Henry, Black threw excrement in an effort to drive Henry away from Black's cell and thereby gain an opportunity to hide the knife. Such conduct, if it occurred, was not merely part of the context of the crime; it was part of the crime itself--a continuing course of interference with Henry's execution of his duties. 4 Thus, Henry's testimony in this regard introduced no "other act," but rather dealt directly with an ultimate issue of fact. Viewed in this way, Henry's testimony is obviously relevant and falls outside the scope of Rule 404(b).

Having determined that Rule 404(b) does not mandate exclusion of Henry's testimony, we affirm the district court's decision to admit the evidence under Rule 403. 5 Black argues that evidence that he threw human feces at Henry was so inflammatory that it should have been excluded even if it was relevant. Under Rule 403, however, relevant evidence is excludible only if its prejudicial effect substantially outweighs its probative value. The balance is for the trial court to strike, and its decision to admit evidence over a Rule 403 objection will be reversed only if it constitutes an abuse of discretion. See United States v. Tibbetts, 565 F.2d 867, 868-69 (4 Cir. 1977).

As noted above, the testimony in question went directly to an ultimate issue of fact. Hence, the probative value of the evidence was high. No doubt, its prejudicial impact was also great. In our view, however, the balance was not so uneven

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that admission of Henry's testimony can be deemed an abuse of discretion.

III.

At the close of the evidence, Black requested an instruction on self-defense. 6 Under the requested instruction, the jury would have been required to acquit if it found that the corrections officer employed excessive force and Black responded with an amount of force he reasonably deemed necessary to avoid bodily harm to himself. The court, however, rejected the suggested instruction. It gave instead a charge to the effect that Black was entitled to defend himself with "deadly force" if he reasonably believed that such force was necessary to escape imminent death or serious bodily harm. 7 Black argues that the self-defense instruction was erroneous in two respects. First, he contends that the instruction misled the jury by framing the issue in terms of an accused's right vel non to use deadly force, whereas the evidence showed merely a threat to use force. Second, he argues that the instruction conditioned the right of self-defense on...

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