Adams v. U.S., 87-549.

• Decision Date: 17 May 1989
• Docket Number: No. 87-632.,No. 87-654.,No. 87-549.,87-549.,87-632.,87-654.
• Parties: Carolyn E. ADAMS, Appellant, v. UNITED STATES, Appellee. Mark A. CHAPPELL, Appellant, v. UNITED STATES, Appellee. Bruce E. DENT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 348

558 A.2d 348

Carolyn E. ADAMS, Appellant, v. UNITED STATES, Appellee.

Mark A. CHAPPELL, Appellant, v. UNITED STATES, Appellee.

Bruce E. DENT, Appellant, v. UNITED STATES, Appellee.

No. 87-549.

No. 87-632.

No. 87-654.

District of Columbia Court of Appeals.

Argued November 17, 1988.

Decided May 17, 1989.

Stephen D. Scavuzzo, appointed by this court, for appellant Adams.

Dennis M. Hart, appointed by this court, for appellant Chappell.

Roger C. Wesley, appointed by this court, for appellant Dent.

Saul M. Pilchen, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Elizabeth Trosman, and James F. Rutherford, Asst. U.S. Attys., were on the brief, for appellee,

Before NEWMAN, FERREN and STEADMAN, Associate Judges.

STEADMAN, Associate Judge.

This case involves an altercation in which appellants Dent, Chappell and Adams, each armed with a different weapon,¹ beat and injured complainant Herndon. Appellants Dent and Chappell were each convicted of two counts of assault with intent to kill while, armed (AWIK) and one count of simple assault. The dual AWIK counts consisted of one count predicated on an aiding and abetting theory (Dent aiding and abetting Chappell's assault with brass knuckles; Chappell aiding and abetting Dent's assault with a metal pole), and one count based on the act for which each was the principal. The simple assault conviction was based on the aiding and abetting of Adams' assault with the wooden board. Appellant Adams was likewise convicted under an aiding and abetting theory as well as for her own act, but instead of two counts of assault with intent to kill while armed, the jury found her guilty of the lesser included offense of two counts of assault with a dangerous weapon (ADW), and one count of simple assault for her use of the board.

Among them, appellants have raised a number of points on appeal. Because we agree that the trial court erred in denying a self-defense instruction,² we reverse and remand for a new trial.

I.

"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 887, 99 LEd.2d 54 (1988) (citations omitted); see, e.g., Graves v. United States, 554 A.2d 1145 (1989); Gray v. United States, 549 A.2d 347, 349 (D.C.1988); Stack v. United States, 519 A.2d 147, 154 (D.C.1986). In determining whether a defense instruction was properly denied, we review the evidence in the light most favorable to the defendant. Richardson v. United States, 131 U.S.App.D.C. 168, 169, 403 F.2d 574, 575 (1968). While mindful that trial judges properly deny instructions which require the jury to engage in "bizarre reconstruction[s] of the evidence," Wood v. United States, 472 A.2d 408, 410 (D.C.1984), here no such convolutions of logic are necessary to make a self-defense theory tenable.

At numerous points in his testimony, appellant Chappell stated that complainant Herndon had a knife and appeared ready to use it. E.g., Herndon "pulled out the hawk bill knife and he got physical"; Herndon "pulled out a hawk bill knife and said what he would do to us"; Herndon "came up with the knife like he was going to cut us"; "He came [with the knife] toward all three of us"; "He came back out with the knife again and come toward us. I hit him again, get him off me so he wouldn't cut me with the knife. . . ."; "He came up towards us with the knife, had the knife in a position like he was getting ready to hit somebody." Asked whether he had "any fear of being struck by [the] knife", Chappell responded that he did, stating further that his purpose in hitting Herndon was "[b]ecause he known to stab people with the knife or shoot somebody." Furthermore, several witnesses testified as to Herndon's reputation for violence, particularly when he had been drinking.

The trial court appears to have been troubled by a seeming inconsistency between a defense posture based on a denial that weapons were used at all and one based on self-defense. However, mere inconsistency between defenses does not constitute a proper basis for the denial of a defense instruction. Mathews v. United States, supra, 108 S.Ct. at 888; Gray v. United States, supra, 549 A.2d at 349 n. 2 ("a defendant is entitled upon request to an instruction on any issue fairly raised by the evidence, regardless of whether it is consistent with the defense theory of the case or the defendant's testimony"). Indeed, the government in its brief concedes that the trial court based its denial of the instruction on erroneous grounds, noting that "[e]ven if the self-defense instructions had been inconsistent with Chappell's testimony, the instructions should have been given because defense instructions need not be consistent with defense testimony or even with the defense trial theory as long as they are fairly supported by the evidence." The government contends, however, that although the "trial court's reasoning . . . was erroneous," the failure to give the requested instruction was nonetheless proper "[s]ince there was no evidence tending to show reasonable acts in self-defense." We disagree. As we have noted, the record is replete with references "tending to show . . . self-defense," and we fail to see how these multiple references constitute "no evidence."³ Therefore, since Chappell's testimony provided a sufficient factual predicate for a theory of self-defense, we hold that the jury should have been furnished with a self-defense instruction.

II.

We further hold that denial of the instruction constitutes reversible error as to all three appellants. The government contends that appellant Chappell did not properly preserve the issue for appeal because he abandoned his request for a self-defense instruction. We disagree. We do not see in the transcript of the colloquy with the trial court a sufficient indication that Chappell's counsel was abandoning his desire for the instruction such as to eviscerate his initial two unequivocal requests.⁴

Adams' trial counsel, on the other hand, while joining in the original request for a self-defense instruction and playing an active part as a proponent in the discussion (arguing a defense of third-parties theory), subsequently responded in the affirmative to an inquiry from the trial court that he was "no longer requesting self-defense.⁵ 5 While this remark in a contextual reading might also be found less than totally conclusive, reversal is warranted in any event. Adams' conviction on the two counts for assault with a deadly weapon was predicated on an aiding and abetting theory (aiding and abetting Dent's assault with the metal pole and Chappell's assault with the brass knuckles). Were the self-defense instruction to have been given, a jury might have believed that Dent and Chappell acted reasonably in self-defense, thereby negating a finding that they committed any criminal act. In order to convict for aiding and abetting, the government must show that "the act constituting the offense was in fact committed by someone." Gray v. United States, 104 U.S.App.D.C. 153, 154, 260 F.2d 488, 484 (1958) (quoting Meredith v. United States, 288 F.2d 535, 542 (4th Cir.1956)); Strickland v. United States, 882 A.2d 746, 749 (D.C.), cert. denied, 428 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975), Since a jury properly instructed on the theory of self-defense may have found that Dent and Chappell's behavior was not criminal, we cannot sustain Adams'...