Fersner v. United States, 83-481.

• Citation: 482 A.2d 387
• Decision Date: 26 September 1984
• Docket Number: No. 83-481.,83-481.
• Parties: Israel H. FERSNER, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

482 A.2d 387

Israel H. FERSNER, Appellant, v. UNITED STATES, Appellee.

No. 83-481.

District of Columbia Court of Appeals.

Argued June 7, 1984.

Decided September 26, 1984.

Bruce B. McHale, Washington, D.C., for appellant.

John M. Facciola, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before FERREN and ROGERS, Associate Judges, and REILLY, Chief Judge, Retired.

FERREN, Associate Judge:

A jury, rejecting appellant's claim of self-defense, convicted him of second-degree murder while armed, D.C.Code §§ 22-2403, -3202, and carrying a dangerous weapon. D.C.Code § 22-3204 (1981). The trial court sentenced him to consecutive prison terms of fifteen years to life on the murder charge and of three to nine years on the weapon charge. On appeal, he argues that the trial court erred in refusing to give an instruction on the use of deadly force in defense of a third person. We affirm.

I.

On the evening of July 31, 1980, appellant and several of his acquaintances gathered in a parking lot behind the Brentwood Village apartments. The decedent, Maurice Winslow, approached them. Earlier, several of the women in the group, including Winslow's girlfriend, had been together at various bars. Winslow had learned that the women were going to one particular bar, but as it turned out they had stayed only a few minutes and thus apparently were not at the bar where Winslow believed he would find them. Winslow asked one of the women, Diane Aull, why she had lied to him (presumably about where the women were planning to go). One witness testified that appellant's girlfriend, Geraldine Barnes, told Aull she did not have to answer Winslow. Barnes testified that she had said nothing to Aull. In any event, Winslow struck Barnes with his hand or fist.

Barnes then went over to appellant, who was seated in a van a short distance away, and told him that Winslow had hit her for no reason. Appellant then walked toward Winslow, who by this time was engaged in an altercation with another woman in the group, Laverne Reed. Accounts of the altercation varied greatly as to whether Winslow or Reed had instigated the fight, whether Reed struck Winslow, and whether Winslow was slapping, punching, kicking, or stomping Reed. The witnesses agreed, however, that Winslow hit Reed at least once before appellant approached him. Reed suffered facial lacerations as a result of the incident.

After appellant and Winslow had exchanged a few words, Winslow turned around and went to his car to get something, which he then put into his pocket. Appellant returned to his own car and put on his tool belt which contained several tools, including a hatchet. Winslow went back toward Reed and Aull. Appellant then approached Winslow and, soon thereafter struck him either once or twice on the head with the hatchet. Winslow fell to the ground.

The witnesses disagreed about what Winslow was doing immediately before appellant struck the initial blow. Rosie Johnson testified that Winslow was standing in a threatening posture in front of Diane Aull and having a heated discussion with her. Aull corroborated this account, saying that Winslow had just knocked Reed down but had turned back to Aull before appellant hit him. In contrast, Reed herself testified that Winslow, at the time he was struck, had already knocked her to the ground and was beating her. Similarly, Harry Jenkins testified that Winslow, at the moment of the first blow from appellant's hatchet, was kicking and stomping on Reed, saying he would break her neck. Appellant and William Kenney presented still another story. They testified that Winslow, with knife in hand, was facing appellant at the time Winslow received the first blow. Isaac Batts similarly testified that Winslow, while facing appellant, was beginning to remove an object from his own pocket. Finally, Barnes testified that Winslow had turned away from beating Reed to face appellant, in response to a remark by appellant.

The witnesses agreed that after Winslow fell to the ground, appellant struck him again three to eight times as he lay there. According to the testimony of Johnson, Aull, and appellant, Miles Jenkins told appellant to stop, and he did. Winslow then attempted to get up from the ground. At this point, according to government witnesses, Reed began to hit Winslow with the bicycle frame, then appellant pushed her aside and attacked Winslow again with the hatchet. Appellant also testified that after Winslow attempted to get up, appellant hit him again with the hatchet.

Medical testimony indicated that Winslow had suffered at least 13 hatchet blows to the back of his head. Winslow died of his injuries the next day.

In addition to asking for a jury instruction on self-defense, which the trial court granted (based on Kenney's, Batts', Barnes' and appellant's testimony), appellant requested an instruction on the use of force in defense of a third person, Laverne Reed (based on Reed's and Jenkins' testimony).¹ The court denied this request.²

The trial court correctly observed that the right to use force in defense of a third person is predicated upon that other person's right of self-defense. Taylor v. United States, 380 A.2d 989, 994-95 (D.C. 1977).³ The court went on to say, however, that appellant's right to use force in the defense of Ms. Reed, as well as his right to determine the amount of force necessary, turned exclusively on Reed's own perception—not on appellant's perception—of the situation:

It seems to me the key to the situation with Ms. Reed is her own testimony because it is quite clear that, under the law, that any interven[or] on her behalf only has the same right of self-defense that she does. I cannot find that as a matter of law from Ms. Reed's testimony that she had the right to use deadly or dangerous weapon force. I do not find anything from which anyone could conclude that she was, from her own testimony, in imminent danger of serious bodily harm or death of the type that is needed to justify that defense. I will not give that instruction.

In other words, the court concluded first that Reed—based on her own testimony that Winslow struck her approximately nine times causing facial bleeding—would not have been entitled to use deadly force in self-defense. For that reason, the court next concluded, as a matter of law, that appellant was not entitled to use deadly force in defense of Reed, irrespective of his own reasonable perceptions of what was happening to her.⁴

The defense of a third person instruction 5.20 (supra note 1) does not make clear,⁵ and this court has not resolved, whether one who properly comes to the defense of another can be protected by his or her own perceptions, including a reasonable mistake of fact, about the degree of force necessary. Disagreeing with the trial court, we conclude that when the use of force in defense of a third person is justified, the intervenor is entitled to use the degree of force reasonably necessary to protect the other person on the basis of the facts as the intervenor, not the victim, reasonably perceives them. State v. Chiarello, 69 N.J.Super. 479, 487-88, 174 A.2d 506, 514-15 (1961); R. PERKINS & R. BOYCE, CRIMINAL LAW 1146-47 (3d ed. 1982).⁶

We arrive at this conclusion by first examining the factors to be considered in determining whether an act of self-defense is legally permissible and then by applying this analysis to defense of a third person. The right of self-defense, and especially the degree of force the victim is permitted to use to prevent bodily harm, is premised substantially on the victim's own reasonable perceptions of what is happening. Criminal Jury Instructions for the District of Columbia, No. 5.14 (3d ed. 1978) (self-defense—amount of force permissible). The victim's perceptions may include, for example, an enhanced sense of peril based on personal knowledge that the attacker has committed prior acts of violence. See generally Johns v. United States, 434 A.2d 463 (D.C. 1981), reh'g en banc denied, 449 A.2d 1074 (1982); Criminal Jury Instructions, supra, No. 5.18 (self-defense— past violence by complainant or decedent). Indeed, the victim's personal perceptions are so significant that they may justify the use of reasonable, including deadly, force in self-defense "even though it may afterwards have turned out that the appearances were false." Criminal Jury Instructions, supra, No. 5.15; accord Williams v. United States, 131 U.S.App.D.C. 153, 156-57, 403 F.2d 176, 179-80 (1968). In sum, the victim's subjective perceptions are the prime determinant of the right to use force—and the degree of force required— in self-defense, subject only to the constraint that those perceptions be reasonable under the circumstances.

Given the subjective aspect of the right of self-defense, we find no rational basis for permitting an intervenor to come to the defense of a third person, with all the attendant risks, but conditioning that right on the victim's rather than the intervenor's reasonable perceptions. Obviously, in attempting to determine what the intervenor's perceptions actually and reasonably were, the trier of fact will find relevant the victim's own perceptions. But when it comes to determining whether—and to what degree—force is reasonably necessary to defend a third person under attack, the focus ultimately must be on the intervenor's, not on the victim's, reasonable perceptions of the situation.

It follows that an intervenor may be entitled to use more, or less, force than the victim reasonably could use, depending on their respective perceptions and available resources. For example, an intervenor may reasonably be entitled to use greater force than the victim herself would perceive necessary if the intervenor knows, while the victim does not, that the attacker has killed before. On the other hand, when an intervenor on...