Carter v. United States

• Decision Date: 26 March 1984
• Docket Number: No. 81-1505.,No. 83-391.,81-1505.,83-391.
• Parties: Wayne J. CARTER, a/k/a Michael J. Hinnant, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1118

475 A.2d 1118

Wayne J. CARTER, a/k/a Michael J. Hinnant, Appellant, v. UNITED STATES, Appellee.

No. 81-1505.

No. 83-391.

District of Columbia Court of Appeals.

Argued January 17, 1984.

Decided March 26, 1984.

COPYRIGHT MATERIAL OMITTED

Alan B. Soschin, Washington, D.C., appointed by this court, for appellant.

Daniel S. Seikaly, 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 W. Randolph Teslik, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before NEBEKER and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

Charged in a single count indictment with first degree murder while armed in violation of D.C.Code §§ 22-2401, -3202 (1981), appellant was convicted by a jury of the lesser included offense of second degree murder while armed. Id. §§ 22-2403, — 3202. Urging reversal of his conviction, appellant makes the following claims: (1) the trial court erred in prematurely admitting evidence of the character of the accused and the deceased; (2) he was denied his constitutional right to effective assistance of counsel; (3) the instructions on self-defense were erroneous as a matter of law; (4) the prosecutor's closing and rebuttal remarks were improper and substantially prejudicial; and (5) the court erred in failing to give an immediate cautionary instruction sua sponte with respect to a prior inconsistent statement. After examining the record, we have concluded that these assignments of error are lacking in merit, and affirm.

On the evening of May 2, 1981, appellant's mother, Emma Hinnant, was entertaining several people at her home at 1730 Gainsville Street, Southeast. A number of friends and neighbors, including appellant Carter and decedent Leroy Hudson, were present. At one point in the evening, appellant and decedent began to argue. The argument escalated into a shoving match and moved from inside Mrs. Hinnant's house into the front yard. Avia Smith, a neighbor, broke up the fight and appellant retreated into his mother's home. Soon after, however, he emerged armed with a butcher knife. A second fight between decedent and appellant erupted and the two men fell to the ground wrestling. During the ensuing struggle, appellant fatally stabbed Leroy Hudson.

Appellant, testifying on his own behalf, stated that the initial argument inside his mother's house arose when decedent became offended by a remark made by appellant, and he believed that decedent would strike him. He stated, in addition, that when the fight moved to the front yard, Leroy Hudson beat him almost to a state of unconsciousness. Denying that Avia Smith intervened to break up the fight, appellant asserted that he had to struggle to get away from the decedent and that when he finally was able to retreat into his mother's house, he noticed a wound on his leg. Appellant, realizing that he needed medical attention, but fearing that decedent would reinstigate the fight, grabbed a butcher knife just in case "they run after me while I was trying to get away." Appellant claimed that when he finally emerged from his mother's house, decedent "rushed" him and provoked another fight, and that during the final struggle he did not realize that decedent had been stabbed. He insisted that: "[the decedent] ran into me, in the struggle, the angle we fell, that's how he got stabbed."

I

Appellant claims now that the trial court erred in permitting the prosecutor to elicit evidence both of his character and of the decedent's character before the character of either man was placed in issue. The government claims that the challenged evidence was relevant to the issue of appellant's claim of self-defense and was properly admitted.

In Johns v. United States, 434 A.2d 463, 468 (D.C.1981), this court declared:

[T]he prosecution may not present evidence of the defendant's (bad) character, in order to show likelihood of committing a crime, unless the defendant first places her own (good) character in issue. [Citations omitted.] More specifically, the government cannot rebut a testifying defendant with evidence of her bad character (including general reputation and specific acts) unless the defendant herself has introduced good character evidence, as such; a defendant does not place her character in issue merely by taking the stand as a witness. [Citations omitted.]

In this case, the prosecutor, in cross-examining appellant, elicited an admission that he and the deceased "argue[d] regularly" and sometimes violently. Even if this violated the strictures of Johns, supra, the questioning was de minimis and at most was harmless error.

Thus, the only real issue here is not the government's effort to present evidence of appellant's violent character, as in Johns, supra, but the admission of evidence of the deceased's peaceable character.

Ordinarily, in a homicide trial, the character of the deceased is irrelevant to the question of whether the accused has committed the crime charged. But, where the evidence tends to show, even in the slightest degree, that the killing was in self-defense or leaves any doubt as to the identity of the first aggressor, the peaceful or violent character of the decedent becomes particularly significant and should be admitted. See Evans v. United States, 107 U.S.App.D.C. 324, 326, 277 F.2d 354, 356 (1960); C. McCORMICK, EVIDENCE § 193 at 461-62 (2d ed. 1972); Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961), cert. denied, 370 U.S. 909, 82 S.Ct. 1255, 8 L.Ed.2d 403 (1962); Key v. State, 211 Ga. 384, 86 S.E.2d 212 (1955); State v. Brock, 56 N.M. 338, 244 P.2d 131 (1952); Solomon v. State, 489 S.W.2d 547 (Tenn.1972), cert. denied, 412 U.S. 923, 93 S.Ct. 2744, 37 L.Ed.2d 150 (1973). Thus, once appellant opens the door to the reputation of the deceased for peace or violence by claiming self-defense, the prosecutor has a corresponding right to rebut with evidence of the non-combative nature of the decedent. WIGMORE, EVIDENCE § 63 at 1350, 1372-73 (Tillers rev. 1983).

While in the instant case there was no factual dispute that appellant had stabbed and killed the decedent, there was a real question at trial as to whether appellant's claim of self-defense was justified. By raising self-defense, appellant was asserting that the decedent had been the initial aggressor in the fatal conflict. Appellant buttressed this claim with his own testimony that Leroy Hudson had provoked the fight, produced the first weapon and stabbed him in the leg. The government, in its case-in-chief, produced eyewitnesses who testified that appellant initiated the fight with Leroy Hudson, and that despite the decedent's efforts to resolve their argument, appellant continued to pursue him. As we have just noted, there were substantially different versions of the incident presented at trial; hence, the decedent's peaceable or violent character was particularly probative of the issue of who was the initial aggressor.

Appellant argues that this evidence was not admissible because at the time of its introduction, character was not yet in issue. He claims that the government improperly elicited this evidence during its case-in-chief, before defense counsel formally asserted a claim of self-defense. While appellant's assertion is technically correct, we, nonetheless, are not persuaded by his argument. From the facts before us, it appears that the government was on notice that appellant intended to assert the defense of self-defense at trial. This was first revealed in appellant's statement given to the police on the night of his arrest:

[Leroy Hudson] was beating me and I couldn't defend myself because he out-weighed me. He was constantly beating' me in my face, so I realized he had a knife and I ran in my mother's house and got a knife. When I got back outside, I asked him why he was hitting me and he stabbed me on the leg because he saw me with a knife. But I seen his knife first, that's why I got me one.

Furthermore, the report following the status hearing in the Superior Court indicated that the theory of appellant's case would be self-defense. Finally, appellant's own testimony and defense counsel's closing remarks reveal that self-defense ultimately became appellant's defense at trial. Therefore, the fact that the government's character evidence was presented prior to appellant's formal assertion of self-defense seems to us to be immaterial. Under other circumstances, a prosecutor may have to delay the introduction of such evidence by recalling those same witnesses to testify in its rebuttal case. However, given the fact that character did indeed become an issue at trial, we are of the opinion that the prosecutor properly anticipated appellant's claim. Under the circumstances, the order in which the character evidence was introduced was merely a matter of sequence and of doubtful prejudice to appellant. See Giles v. United States, 432 A.2d 739, 741 (D.C.1981). Thus, while it may have been error for the government to have introduced such evidence in its case-in-chief rather than in its rebuttal case, it was not in our view reversible error.

II

Appellant also argues that his conviction cannot stand because he was deprived of his Sixth Amendment right to effective assistance of counsel. Specifically, appellant claims that trial counsel failed to (1) make an opening statement on behalf of his client; (2) vigorously challenge the prosecution's introduction of character evidence; (3) object to leading questions of the prosecutor; (4) request an immediate cautionary instruction when the government sought to impeach him with a prior inconsistent statement; (5) examine him effectively concerning prior threats allegedly made against appellant by decedent; (6) object to improper closing and rebuttal arguments of the prosecutor; and (7) object to the trial court's instructions to the jury. Appellant...