Baker v. United States, 7244.

• Decision Date: 13 August 1974
• Docket Number: No. 7244.,7244.
• Citation: 324 A.2d 194
• Parties: William A. BAKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

324 A.2d 194

William A. BAKER, Appellant, v. UNITED STATES, Appellee.

No. 7244.

District of Columbia Court of Appeals.

Argued January 16, 1974.

Decided August 13, 1974.

Selma M. Levine and James H. Heller, Washington, D. C., appointed by this court, for appellant.

Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Raymond Banoun, Asst. U. S. Attys., were on the brief, for appellee, Garey G. Stark, Asst. U. S. Atty., also entered an appearance for appellee.

Before GALLAGHER, YEAGLEY and HARRIS, Associate Judges.

YEAGLEY, Associate Judge:

This is an appeal from a conviction of manslaughter (D.C.Code 1973, § 22-2405) after a jury trial. Appellant was acquitted of second degree murder and carrying a dangerous weapon (knife).¹ Several errors are assigned by appellant which will be discussed, infra. Based on our considertion of the record in the light of applicable case law, we reverse for a new trial consistent with this opinion.

At about 1 a. m. on September 10, 1972, T. Willie Simon entered a restaurant accompanied by Miss Ivory Virgil. Appellant, who already was in the restaurant did not know Simon. Within a short period of time a fight had broken out between Simon and appellant. There are conflicts in the evidence as to who started the fight and as to whether appellant had and used a knife against Simon. After the fight Simon left the premises, and appellant left shortly thereafter. A short time later Simon was found dead about a block from the restaurant. He had suffered twenty-three stab wounds, two of which were considered fatal.

Appellant claims that part of the trial court's instruction on self-defense was prejudicially erroneous.² The first portion of the instruction³ generally corresponds to D.C.Bar Association, Criminal Jury Instructions for the District of Columbia (2d ed. 1972) Instruction No. 5.13. Then followed the portion of the instruction objected to:

If the Government does prove to you beyond a reasonable doubt that the Defendant did not act in self-defense, then you must find the Defendant guilty.

There is nothing in the standard instructions which corresponds to this portion of the instruction.

Following the giving of the instruction appellant's counsel made a specific objection to it citing United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (1969). The judge recognized that the objected to instruction might be erroneous but thought that changing it at that point would do "more harm than good".

In Hayward, supra at 301-302, 420 F.2d at 143-144 (a case by which we are bound, M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971)) the jury was first instructed that if the government failed to prove beyond a reasonable doubt that defendant was present at the scene of the crime then it must find the defendant not guilty. The instruction then went on:

"On the other hand, if, after a fair and full consideration of all the facts and circumstances in evidence, you find that the Government has proved beyond a reasonable doubt that the Defendant was present at the time when and at the place where the offense charged was committed, then you must find the Defendant guilty." (Emphasis in original.)

Judge Tamm, writing for the Circuit Court, explained that the effect of this instruction was to allow (indeed to "instruct") the jury to find the defendant guilty if his alibi defense was disproved, without regard to the government's burden to prove all of the elements of the crime. The court held that this amounted to a directed verdict of guilty which was violative of appellant's Sixth Amendment right to a jury trial. See Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41 (1954).

The case before us and Hayward are as similar as two cases are apt to become. In our case the effect of the instruction in question was to require the jury to convict appellant if it found that the government disproved his claim of self-defense, regardless of whether the jury found that all of the elements of the crime had been proven. Appellant's plea of not guilty put all elements of the crime at issue, Roe v. United States, 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961), e. g., whether he inflicted the fatal wounds and if so whether it was done in self-defense. Appellant took the stand and supported both defenses with his own testimony. For the judge to indicate, albeit by a good faith error, that a conviction was required solely on the basis that the claim of self-defense was disproved, is error.

The government argues, as it did in Hayward, that the instruction, if it was erroneous, constituted harmless error on the basis that the other instructions were correct and that appellant's claim of self-defense was weak.

It contends that other instructions, which in general terms correctly set forth the law as to the government's burden of proof, should be presumed to have been obeyed by the jurors in their "faithful adherence to their respective oaths". This argument assumes too much. Time and again this and other courts have spoken of the presumption that juries faithfully obey the instructions given to them by the judge. An application of this presumption to the instant situation leads to the dilemma of which instruction do we presume the jury obeyed. Did they obey the specific instruction that they "must" convict if the government disproved appellant's claim of self-defense; or did they, in spite of that specific instruction, somehow obey the general instructions that the government bears the burden of proof beyond a reasonable doubt on all elements of the offense? Faced with such a dilemma we are, like the court in Hayward, unable to find the error harmless.

Likewise are we unable to find the error harmless based on the weakness of appellant's self-defense claim. The government misconceives the nature of the instructional error when it states that appellant "did not have a strong claim to self-defense, minimizing, if not eliminating, the likelihood of any prejudice." The problem with the instruction is not that it might have caused the jury to erroneously reject appellant's self-defense claim; the problem is that if the jury did reject the self-defense claim, it could have, solely on that basis, convicted appellant, without considering and weighing the evidence in light of the elements of the crime. In fact, the weaker the self-defense claim, the greater the likelihood that the jury might convict without consideration of all of the elements of the crime.

Appellee refers us to United States v. Martin, 154 U.S.App.D.C. 359, 475 F.2d 943 (1973), characterizing its holding as being "that in light of the instructions as a whole, an erroneous instruction to the effect that the jury `must' find beyond a reasonable doubt as to a matter of defense, . . . was harmless."

Beyond the fact that the words "must find" were used in both instructions, the instruction in Martin is in no way similar to the instruction before us,⁴ nor was its potential for harmful effect on the jury as great. The court in Martin thought it to be significant, with respect to its determination, that the instructional error before it was not prejudicial, that the evidence adduced at trial strongly indicated that appellant was not intoxicated.

As we have said, however, the error in our case is not made less prejudicial by the alleged weakness of appellant's self-defense claim since the error in effect directs a guilty verdict with respect to all elements of the crime, and it is this which creates the prejudice to appellant.

To summarize, we find: that the instruction in question incorrectly allowed the jury to convict appellant based solely on a rejection of his claim of self-defense; that other general instructions on the government's burden of proof of the elements of the crime did not dissipate this error; and that the weakness of appellant's self-defense claim, if not irrelevant to the prejudice caused by the instructional error, certainly is not overriding. We are thus unable to say, as we must if we are to affirm a conviction resulting from a proceeding wherein error has been committed, that there is no "reasonable possibility that the [error] contributed to the conviction". Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972).

Accordingly, we reverse this conviction and remand the case for a new trial.

Since some of the other contentions of error advanced by appellant may arise at a retrial we deem it advisable to comment on them here.

Appellant argues that it was error for the court to allow the government to impeach its own witness, 0. C. Kelly, claiming that his testimony was not surprising to it nor was it adverse to its case.

D.C.Code 1973, § 14-102 provides in pertinent part:

When the court is satisfied that the party producing a witness has been taken by surprise by the testimony of the witness, it may allow the party to prove, for the purpose only of affecting the credibility of the witness, that the witness has made to the party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause. . . .

Appellant claims that the government could not have "been taken by surprise by the testimony" of Kelly since it learned from his testimony at the pretrial hearing that he repudiated the earlier statement to police which he had signed. The government, relying on Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19 (1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954), takes the position that it hoped that, in spite of his pretrial repudiation of his written statement, Kelly would testify in accordance with his statement to the police and therefore it was "surprised" when he did not.

Whatever the merits of appellant's contention might be under the circumstances of that trial, and they...