Brown v. US

• Decision Date: 10 July 1990
• Docket Number: No. 89-480.,89-480.
• Parties: Ava BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

584 A.2d 537

Ava BROWN, Appellant, v. UNITED STATES, Appellee.

No. 89-480.

District of Columbia Court of Appeals.

Submitted May 3, 1990.

Decided July 10, 1990.

James B. Miles, appointed by this court, was on the brief, for appellant.

Jay B. Stephens, U.S. Atty., and John R. Fisher and Brenda J. Johnson, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, NEWMAN, Associate Judge, and PRYOR, Senior Judge.

NEWMAN, Associate Judge:

Ava Brown appeals her conviction for malicious destruction of property stemming from an incident in which Brown smashed the front windows and door of her mother's home in an effort to get inside and take possession of her runaway son, who was then staying at his grandmother's home. Brown charges that the court erred by (1) ruling that as a matter of law the grandmother's refusal to turn over Brown's son was inadequate provocation for Brown's act of destruction, and (2) refusing to permit Brown to introduce evidence of provocation —specifically, that her mother had threatened on previous occasions to permanently remove Brown's son from her care by "institutionalizing" the boy. We reverse the conviction.

I

On Friday September 16, 1988, Lamar Brown, Ava Brown's twelve-year old son, ran away from home. His grandmother, Ava Brown's mother, Joylette Young, found him on a street on September 23 and took him home with her, where she called his father. His father and mother were separated. Young testified that she did not notify Brown that she had found Brown's son, because Brown had no telephone and the boy insisted that he did not wish to return to his mother's home.

Ava Brown searched unsuccessfully for her son for ten days. She contacted the police and the Youth Division and talked to friends and neighbors. On Monday September 26th, sometime after 8:00 p.m., she contacted a friend of Lamar's named Antoine and asked him if he knew Lamar's whereabouts. Antoine told Brown that Lamar had been picked up from an area playground by his grandmother, Ms. Young.

At about 9:40 that evening, Ava Brown, with her other son, Javan, in tow, appeared at the front door of her mother's home seeking her son. Ms. Young told Brown that she could not have the boy, because Brown had been physically and mentally abusing him and he did not want to return home with her. Brown insisted that she be allowed to come in and get the boy. Young refused. Brown picked up a wrought iron chair from the front porch and began smashing windows and the front door in an attempt to gain entry, destroying three windows, curtains, blinds, and the panes in a fifteen light door in the process.

According to Brown, Young broke some of the windows from the inside with a broomstick. According to Young, she had a nightstick and did not break any windows with it, but only wielded the stick in an effort to keep Brown out of the house.

Young called the police and then left the house via the basement with Lamar in an attempt to reach Young's car while Brown was occupied breaking through the front door. As the pair reached Young's car, they were observed by Lamar's younger brother, Javan, who called out to Lamar to come to him and his mother. Brown left the porch in an attempt to stop them, but was restrained by neighbors and held on the ground until the police arrived.

At trial, Brown conceded all elements of the charge except malice, arguing that she had been provoked by (1) her mother's earlier threats to institutionalize the boy to remove him from her care, and (2) her mother's refusal to allow her access to her son after a ten-day search for the boy.

Concerning the former point, Brown was prevented by the court from testifying about the alleged threats on grounds that, as a matter of law, Brown's motivations for trying to enter the house were irrelevant. However, during cross-examination of Young in the rebuttal portion of the trial, Brown's counsel was permitted to ask Young whether she had ever made any such threats or, more specifically, whether she had sent the police to Brown's home on one occasion "to institutionalize" Lamar. Young denied both charges.

Concerning the latter point, the court said to the jury:

You're instructed that as a matter of law it is not adequate provocation, justification, or excuse to damage or destroy property if somebody is not doing something that you think they should be doing, such as in this case, not turning over the defendant's son. As a matter of law, that is not sufficient justification or excuse to thereupon start destroying property.

Later, during its deliberations, the jury sent the court a note, reading:

Judge Wolf, please clarify the definition of malice. Is premeditation required? Is malice possible if it occurs on the spur of the moment? To what extent does frustration play in determining malice? If we find that the defendant's perception of the situation at that moment was different from what we now know the situation to be, may we give weight to that in determining the issue of malice?

The court summoned counsel, read the note, and discussed his proposed answer to the jury's questions. Regarding the jury's question about frustration, the court told counsel:

In answering the question about frustration, you might be very frustrated if a police officer gives you a ticket that you don't think you deserve, but that does not give you the right to bust the windshield of the police car. And if your perception at the moment is that the ticket was unjustified, but you're wrong, it was totally justified, then to that extent your perception at that moment is irrelevant.

Defense counsel objected to this answer, saying:

I think you might ... indicate that a person might well be justified or adequately provoked, say, to enter someone's house if he knows there's a kidnap victim there screaming as opposed to running away from a scream and calling a police officer, to let the police officer come and knock the door down.

The court agreed to give such an example, saying "if you think someone is inside a house in physical danger, it might be adequate provocation to break down the door to go in to save them." However, the government objected on grounds that there was no evidence to support a finding that Brown's son was in physical danger. The court responded by saying that he would stress the need for the presence of "actual physical danger."

The court then proceeded to meet with the jurors and answer their questions as he had proposed to counsel. Regarding the matter of entering a house to rescue someone, the court said:

Suppose you thought someone was inside a house and you reasonably thought —I'm sorry—you actually thought that someone was inside the house and was in physical danger. Physical danger. If that thought that you had was a reasonable thought under the circumstances, then you might have the justification or excuse to break in the house and destroy some property in the process to save that person from actual physical harm.

The jury retired and eventually returned with a guilty verdict. Brown appeals, contending that the trial court erred by ruling and instructing the jury that her motives for attempting to enter her mother's house —namely, her fear that her son would not be returned to her—were irrelevant as a matter of law.

II

Although provocation is a matter usually connected with the law of homicide, we have held that the malice required by D.C.Code § 22-403 (1981)¹ as an element of the charge of malicious destruction of property is the same as the malice required to make out a case of murder. Carter v. United States, 531 A.2d 956, 963-64 (D.C. 1987). Moreover, in defining malice under § 22-403, we adopted the definition offered by Perkins, CRIMINAL LAW 769-70 (2d ed. 1969), in which it was said that "malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation." See Charles v. United States, 371 A.2d 404, 411 (D.C.1977); Thomas v. United States, 557 A.2d 1296, 1299 (D.C.1989). Thus, provocation is a proper defense to the charge of malicious destruction of property, and we look to the doctrine of provocation as it has developed in the context of homicide, and elsewhere,² to guide us in deciding this case.

A

Under the common law, the doctrine of provocation developed along the lines of fixed categories of conduct by the victim, paradigms of misbehavior, which the law recognized as sufficiently provocative to mitigate what would otherwise be malicious conduct by the defendant. Familiar examples of these categories of provocative conduct by the victim are adultery³ and assault.⁴ Traditionally, a defendant seeking to negate the malice element of the charge against her by showing provocation would have to present some evidence of provocative behavior by the victim.⁵ However, such evidence would not automatically entitle the defendant to an instruction on a lesser included offense or an affirmative defense. First, the court would have to determine that the victim's conduct constituted legally adequate provocation,⁶ i.e., that it fit within one of the tried and true categories of provocative conduct like adultery or assault. Thus, in order to have the jury consider such evidence, the defendant either would have to present it in a form recognized as legally adequate by the court, or ask the court to recognize a new category of provocative conduct. In addition, rules were developed to keep certain types of conduct outside the fixed categories, and thus away from the jury, such as insulting words and gestures unaccompanied by other conduct.⁷ Thus, under the common law, there grew up a process of pigeon-holing provocative conduct.

But the domination of provocation doctrine by fixed categories of recognized conduct has long been questioned by a number of commentators and courts. This questioning has developed into the modern view of provocation. Culminating in the formulation adopted in the Model...