High v. U.S.
| Decision Date | 04 June 2009 |
| Docket Number | No. 03-CF-1397.,03-CF-1397. |
| Citation | 972 A.2d 829 |
| Parties | Melvin L. HIGH, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Veronice A. Holt, Washington, was on the brief for appellant.
Amanda J. Williams, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Thomas J. Tourish, Jr, and Angela G. Schmidt, Assistant United States Attorneys, were on the brief for the appellee.
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, and FARRELL, Senior Judge.1
Just after midnight on December 12, 2000, Melvin L. High shot his childhood friend, Lamar Gaither, fifteen times, killing the 20-year old on the street outside High's house.
High was indicted by a grand jury on September 19, 2001, for charges including first-degree murder while armed (D.C.Code §§ 22-2101, -3202 (2001)), possession of a firearm during a crime of violence or dangerous offense (§ 22-3204(b)), carrying a pistol without a license (§ 22-3204(a)), and unlawful possession of ammunition (§ 6-2361(3)).
After a jury trial on December 9, 2002, the jury convicted High of voluntary manslaughter while armed (as the lesser-included offense of first-degree murder while armed), possession of a firearm during a crime of violence, carrying a pistol without a license, and unlawful possession of ammunition.
On appeal, High's primary argument is that his conviction for voluntary manslaughter should be reversed because there was insufficient evidence of provocation to support instructing the jury on voluntary manslaughter as a lesser-included offense of murder. For the following reasons, we agree that there was instructional error; however, because it was harmless, we affirm.2
The morning of the murder, Gaither's mother, Diane, fixed Gaither and High breakfast at Gaither's home, and she took a picture of the two before they left the house. In the photo, High was wearing a green Eddie Bauer coat, a Redskins sweater, blue jeans and a red Redskins baseball cap.
After breakfast, Gaither and High drove to pick up Odell Smallwood, Gaither's cousin. Gaither smoked marijuana with Smallwood and drank alcohol with High. Later that day, the three men drove to a house to visit High's adult step-sister, Angela Nivens, and three of her friends. Smallwood and Gaither smoked more marijuana, while High and Gaither continued to drink. At some point that evening, Gaither went upstairs with Nivens where they stayed for 20 to 25 minutes before coming down together. Upon seeing the two return, High appeared none too pleased. When Gaither, High, and Smallwood left the house, High saw Nivens give Gaither a kiss on the cheek.
When the three men got into the car, High began yelling at Gaither and asking him what went on between himself and Nivens upstairs. According to Smallwood, High and Gaither were arguing back and forth with High yelling, "How the fuck you going to fuck my sister?," and Gaither responding, "Man, stop tripping off that shit." Smallwood testified that he had never seen High so upset.
High told Smallwood to drive him home. When they arrived, High got out of the car and went inside his house. Smallwood pulled the car over to the opposite side of the street, and Gaither got out of the car telling Smallwood that "he was going to go get his stuff." Smallwood remained in the car and waited for the two men to return.
About three or four minutes later, Smallwood heard "some shots" and ducked down inside the car. When he looked up, he saw High in the middle of the street standing over Gaither. Gaither was on his knees with his hand raised over his head. Smallwood could not see a weapon, but testified that it looked like High was hitting Gaither with his hand. Smallwood started the car, put it in reverse and backed down the street. Soon Smallwood heard several more shots, and when he looked back, he could see Gaither slouched down where he had been kneeling in the middle of the street.
Smallwood's testimony was corroborated in large part by Benson Medley, the boyfriend of High's mother, Cassaundra Britton. Medley testified that on the evening in question, he was at Britton's home around 10:00 P.M., when he heard "some people" walk past Britton's bedroom and head upstairs to the attic, where High roomed. After hearing a "commotion" or "tussling" upstairs that sounded like someone was moving furniture, Medley heard what sounded like two people coming back down the stairs. Later, when Medley looked out of the window, he saw High and Gaither standing on the sidewalk talking loudly. Medley turned away from the window to watch Monday Night Football and, a few seconds later, heard a gunshot.
Medley went back to the window and saw High standing next to a half-clothed Gaither who was staggering across the street to a spot next to a tree beneath a street light. After Medley saw Gaither and High make it across the street, he saw Gaither fall to his knees before High shot Gaither four or five times while Gaither was lying on the ground with his arm in front of his face. According to Medley, High then stepped back, hit the butt of his gun, and fired seven or eight more shots. Medley then called the police. Medley's account was corroborated, in part, by the testimony of two neighbors.
After all of the evidence had been presented, the trial court decided, sua sponte, to instruct the jury on second-degree murder and voluntary manslaughter as lesser-included offenses of first-degree murder. As it relates to the voluntary manslaughter instruction, the trial court contended that the instruction was warranted because the jury could conclude that High killed Gaither in the heat of passion provoked by the fact that Gaither may have engaged in sexual relations with High's step-sister, Nivens.
High objected to the jury being instructed on voluntary manslaughter, his defense being that someone else shot Gaither. However, the government (albeit with some reluctance) agreed with the trial court that there was sufficient evidence of provocation to warrant such an instruction. The jury ultimately convicted High of voluntary manslaughter.
High contends that the trial court erred, first, in sua sponte suggesting that the jury be instructed on voluntary manslaughter and second, in finding that there was sufficient evidence of adequate provocation to support such an instruction.
On several prior occasions we have recognized that a trial court's sua sponte suggestion of a lesser-included offense instruction is not error simply because the trial court acts of its own accord. See Hawthorne v. United States, 829 A.2d 948, 952 (D.C.2003) (); Mungo v. United States, 772 A.2d 240, 243-44 (D.C.2001) (); see also Bostick v. United States, 605 A.2d 916, 920 (D.C. 1992) (). We have explicitly recognized that "a trial court is under no duty to sit quietly and refrain from even mentioning a lesser included instruction until one of the parties requests it[.]" Hawthorne, supra, 829 A.2d at 952. Thus, even though generally it is the defendant or the government that requests such an instruction, the trial court need not stand idly by and wait for either party to raise the issue. Accordingly, High's claim that it was error for the trial court to sua sponte suggest to the parties that the jury be instructed on the lesser-included offense of voluntary manslaughter is without merit.
But regardless of whether the trial court is acting sua sponte, or at the behest of either party, a lesser-included offense instruction must be supported by sufficient evidence before it is properly presented to a jury. See Hawthorne, supra, 829 A.2d at 951-52. In this case, High argues that the trial court erred by giving the manslaughter instruction because there was insufficient evidence of adequate provocation to support the instruction.
Voluntary manslaughter is an unlawful, intentional killing that would be second-degree murder but for the presence of mitigating circumstances, which "exist where [the] person acts in the heat of passion caused by adequate provocation." Lee v. United States, 959 A.2d 1141, 1143 n. 5 (D.C.2008) (); accord, Comber v. United States, 584 A.2d 26, 42-47 (D.C.1990) (); United States v. Bradford, 344 A.2d 208, 214-15 (D.C.1975) (same). The presence of adequate provocation is necessary to mitigate murder to voluntary manslaughter. See Comber, supra, 584 at 42-47.
Whether there was adequate provocation is an objective inquiry. See Brown v. United States, 584 A.2d 537, 542-43 (D.C.1990) (). "The test of sufficiency of such provocation is that which would cause an ordinary man, a reasonable man, or an average man, to become aroused as to kill another." Id. (quotations and internal citation omitted). In other words, provocation is adequate where it would "naturally induce a reasonable man in the passion of the moment to lose self-control and commit the act on impulse and without reflection." Id. at 543 n. 17 (citing Austin v. United States, 382 F.2d 129, 137 (D.C.Cir.1967)). Therefore, in order to conclude that the evidence presented in High's case was sufficient to support a voluntary manslaughter instruction, we must be satisfied that a reasonable man would have been induced to lose self-control and kill his good friend, on impulse, without reflection, because he believed that his friend engaged in sexual relations with his adult step-sister.
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