Bedney United States

• Decision Date: 06 February 1984
• Docket Number: No. 82-1585.,82-1585.
• Parties: Mary Jane BEDNEY, a/k/a Lillie Mae Bedney, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1022

471 A.2d 1022

Mary Jane BEDNEY, a/k/a Lillie Mae Bedney, Appellant, v. UNITED STATES, Appellee.

No. 82-1585.

District of Columbia Court of Appeals.

Argued November 29, 1983.

Decided February 6, 1984.

Richard A. Graham, Washington, D.C., appointed by this court, for appellant. Daniel M. Cisin, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell and Mary Ellen Abrecht, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER and MACK, Associate Judges, and REILLY, Chief Judge, Retired.

PER CURIAM:

Appellant was convicted by a jury of armed assault with intent to kill, D.C.Code § 22-502, -3202 (1981), and carrying a pistol without a license, id. § 22-3204. In challenging the convictions, she contends, inter alia, that the trial court's instructions to the jury were inadequate and that the evidence was insufficient to support the conviction of assault with intent to kill¹ We affirm.

According to the evidence presented by the government, the armed assault for which appellant was convicted was the culminating event in a quarrel between appellant and another woman, Lenora Cole, which had occurred a few hours earlier at the same place, the corner of 11th and O Streets, N.W. On the first occasion, after a heated verbal exchange between the two women — Cole was accompanied by her sister who joined in the argument — the pair resorted to punching and scratching each other. This sidewalk fracas, observed by many onlookers, went on for about 30 minutes, with Cole emerging as the apparent victor and appellant quitting the scene to go to the apartment of a friend who lived nearby.

Several hours later, Cole, equipped with a long piece of piping and reinforced by her sister and her mother, Mrs. Betty Stevenson, returned to the combat zone. Soon thereafter, appellant arrived at the same intersection with two relatives in her wake, a young nephew, Ken Simmons, and her sister. Cole testified that appellant, who was carrying a brown paper bag, came up to her and said "I'm going to get you," but Mrs. Stevenson prevented another fist fight by stepping between them. Appellant then walked to the doorway of a nearby building — approximately fifteen feet from where Cole was standing. She removed a revolver from the bag that she was carrying. People standing in the vicinity then heard a noise that sounded like a gunshot. Stevenson testified that she then saw her daughter bend over and that blood was coming from the back of her neck when she lifted her head.

Two police officers, Donald Wikert and James Szewczyk, arrived at the intersection of 11th and 0 Streets shortly after hearing what seemed to be a gunshot. Officer Wikert approached appellant and picked up a brown paper bag containing a .22 caliber revolver that had dropped to the ground. He placed her under arrest. Officer Szewczyk approached Cole and observed blood coming from an injury behind her right ear.

A crime scene search officer testified that the revolver contained one empty shell casing and four live rounds, and that the absence of dust or debris in the barrel indicated that it had been recently fired. In his inspection of the crime scene, the officer observed a small amount of blood on the sidewalk near where Cole had been standing.

Appellant testified that after the first fight, she washed up at a friend's apartment across the street and emerged later with her two relatives.

She said her sister was carrying a paper bag containing a revolver, which they intended to deliver to their mother who needed it for protection. As they encountered the Cole group, appellant informed them that she was going to report Cole's sister to the Citizens Complaint Bureau in order to recover some money the latter owed to her. As appellant was walking on, Cole approached her from behind with the metal pipe in hand. Appellant's sister then handed her the bag containing the gun. Cole then struck appellant with her pipe.

Appellant ran to the vestibule of a nearby church and removed the revolver from the paper bag upon seeing Cole pull a silver handgun from her pocketbook. Cole's sister began to struggle with Cole over the gun, which appellant said, went off while pointed at the sidewalk. Appellant estimated that she was standing fourteen feet away from Cole when this occurred. Appellant said she could not remember whether she fired the gun in her own possession. When the police arrived, appellant directed them to the gun, then in the bag which she had dropped upon the sidewalk. The police did not recover a gun from Cole, and appellant asserted that Cole passed it off to a bystander.

Appellant's nephew, Simmons, called by the defense, testified that he observed Cole's mother pass a handgun to her daughter. He then saw appellant and Cole aim guns at each other. He heard two gunshots, and shortly thereafter, the police arrived and arrested appellant.

I

Appellant contends that the court's instructions to the jury on the relationship between self-defense and provocation were inadequate. Specifically, with regard to the charge of assault with intent to kill, appellant argues that the court erred in failing to instruct the jury that provocation by the victim could have negated the specific intent to kill. The error occurred, asserts appellant, when the judge repeated the standard instruction on provocation and self-defense in response to a note from the jury requesting restatement of the relationship between provocation and intent to kill. That instruction informed the jury that if it found that appellant provoked an attack, then appellant could not benefit from a claim of self-defense.² Defense counsel did not object to the instruction, and in fact, expressly agreed to it.

Decisions concerning reinstruction of a jury are within the discretion of the trial court. Murray v. District of Columbia, 358 A.2d 651, 653 (D.C.1976); Atkinson v: United States, 322 A.2d 587, 588 (D...