Jennings v. US

• Decision Date: 29 April 2010
• Docket Number: No. 07-CF-711.,07-CF-711.
• Citation: Jennings v. United States, 993 A.2d 1077 (D.C. 2010)
• Parties: Ricardo JENNINGS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

993 A.2d 1077

Ricardo JENNINGS, Appellant, v.UNITED STATES, Appellee.

No. 07-CF-711.

District of Columbia Court of Appeals.

Argued March 4, 2010.

Decided April 29, 2010.

O. Dean Sanderford, Public Defender Service, with whom James Klein and Corinne Beckwith, Public Defender Service, were on the brief, for appellant.

Peter S. Smith, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Roy W. McLeese III, Mary B. McCord, and Douglas Klein, Assistant United States Attorneys, were on the brief, for appellee.

Before PRYOR, FERREN, and KING, Senior Judges.

PRYOR, Senior Judge:

Appellant was charged with first-degree premeditated murder while armed, possession of a firearm during a crime of violence, and possession of a prohibited weapon.D.C.Code §§ 22-2101, -4502, -4515(b), (c)(2001).After a jury trial, he was acquitted of first-degree murder but convicted of second-degree murder, as a lesser-included offense, and both weapons charges.He now appeals his conviction on the basis that it was error to instruct the jury on the lesser-included charge based on the evidence presented.We affirm.

I.

In June 2004, a group of residents in the 1500 block of Second Street, Southwest were congregating outside their apartments to socialize.Around 10:30 p.m., Ernest Jennings, appellant's uncle, knocked over a trash can near the group, spreading garbage and broken glass on the ground.He appeared to be intoxicated and refused to pick up the trash can and debris.An argument ensued between Ernest Jennings and several members of the group, who insisted he clean up the trash.Appellant was at his aunt's apartment nearby when he was called to come get his uncle.After several unsuccessful attempts, appellant convinced his uncle to get into a car and the two drove away.

At about 2:00 a.m. the next morning, a smaller group of individuals continued to socialize in lawn chairs assembled in the courtyard of an apartment building on Second Street.Kelly Hull, the sister of the man who was later killed, was about to leave with her brother, Jamal.He waited for her by his car parked in front of the apartment building.Kelly Hull walked out of the courtyard and around the side of the building into an area between the buildings to urinate.While there, she was passed by a man carrying a rifle whom she recognized as appellant based on her knowledge of him "around the neighborhood."The man told her to "get ... out of here" and continued walking until he reached a gate in the area.He then raised the gun and fired "a lot of" shots into the street beyond the building before fleeing.Police found ten shell casings scattered in a line leading from the area over a distance of eleven to forty-seven feet from the curb.All of the casings were determined to have come from the same firearm, and expert testimony at trial established that the casings would have landed about three feet from the shooter as each shot was fired.

Kelly Hull emerged from the area where she had been and saw her brother Jamal lying in the street.At trial she admitted that, on the night of the shooting, she had been drinking and that she was "addicted to PCP" but denied that either circumstance affected her ability to recognize appellant as the shooter.She also testified that she had seen Ernest Jennings leaning on a gate an hour before the shooting.The parties stipulated that Ernest Jennings was "badly beaten" by unknown individuals shortly after the shooting in a building about a block away.

At the conclusion of the trial, the defense moved for judgment of acquittal, arguing that the government had failed to establish the identity of the shooter as well as proof of premeditation and premeditation necessary for a first-degree murder conviction.The record reflects that the defense had vigorously asserted the deficiency of proof related to the identification of appellant as the person who fired the shots.The motion was denied and the government requested a second-degree murder charge as a lesser-included offense.The government suggested that the evidence could equally support the view that appellant fired the shots generally in the area of the group, evincing a conscious disregard for the extreme risk of death or serious bodily injury that could result.Notwithstanding the challenge regarding the issue of identify, the judge concluded an instruction was appropriate under a "depraved heart theory."Relying on Comber v. United States,the trial court observed that second-degree instructions were warranted in situations that included:

firing a bullet into a room occupied, as the defendant knows, by several people, starting a fire at the front door of an occupied dwelling, shooting into a moving automobile necessarily occupied by human beings, playing a game of Russian roulette with another person, and selling pure, i.e., undiluted heroin.It just seems to me that a rational construction of the facts in this case could fit perfectly within those categories....The government's theory is that the defendant goes back and intentionally shoots Jamal Hull.But the law allows the government as a fall back to say that he went back and intentionally fired into the block, knowing that people where there and understanding that by doing so he was creating a grave risk of death or serious bodily injury to the people who were in the line of fire.

SeeComber,584 A.2d 26, 39 n. 13(D.C.1990)(en banc).

The jury subsequently acquitted on the first-degree murder charge but convicted on the lesser included second-degree murder charge.He argues that the result was to unfairly encourage the jury to compromise on the lesser-included charge as its verdict.

II.

We review jury instructions on lesser-included offenses to determine if they are supported by the evidence.Shuler v. United States,677 A.2d 1014, 1017(D.C.1996).We have said that "this requirement is a minimal one; it means any evidence ... however weak."Id.(citation and quotation marks omitted).The evidence requirement is met "where there is conflicting testimony on the factual issue" and "where the lesser included offense is fairly inferable from the evidence including a reconstruction of the events gained by accepting testimony of some or all of the witnesses even in part."Coleman v. United States,948 A.2d 534, 551(D.C.2008).Thus, a lesser-included offense instruction is properly given "where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge."Id.If a jury crediting the evidence could rationally convict on the lesser-included offense, then "the court must give the instruction no matter how inclined it might be to discount that evidence."Id.However, no lesser-included offense instruction is permitted where the jury "would have to engage in an irrational or bizarre reconstruction of the facts of the case."Anderson v. United States,490 A.2d 1127, 1130(D.C.1985).

In the circumstances of this case, appellant contests the jury instruction which allowed the jury to convict him of second-degree murder in the alternative.Second-degree murder requires "malice aforethought," which can be satisfied in one of four ways according to Comber,584 A.2d at 26.These include (1) actions taken with a specific intent to kill but lacking in deliberate and premeditated malice, (2) acting with the specific intent to inflict serious bodily harm, (3) actions where the defendant knew subjectively that the act"created an extreme risk of death or serious bodily injury," and (4) killings occurring in the course of a felony.Id. at 38-39.

Here, it is the third type of action, sometimes called "depraved heart" murder, that the jury had to consider in appellant's case.We have described this as a killing that results from an action evidencing "a wanton and willful disregard of an unreasonable human risk as to constitute malice aforethought even if there is not actual intent to kill or injure."Id. at 39.In the District of Columbia, we hold that depraved heart murder can only be found where the perpetrator of the act"was subjectively aware that his or her conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless."Id.(footnote omitted).This may be shown by a "gross deviation from a reasonable standard of care" or by other acts that may lead the finder of fact to determine that the "defendant was aware of a serious risk of death or serious bodily harm."Id.

Appellant contends, for a variety of reasons, that giving the lesser-included second-degree murder instruction was unfair.First, he argues that the prosecution pursued a theory of first-degree murder throughout the trial, implicitly rejecting the idea that the murder could have been other than a premeditated and deliberate act.And second, appellant argues that the instruction was prejudicial because, by allowing the jury to consider the second-degree murder charge, the court made it likely that the jury would compromise on the lesser-included charge if it could not agree on either conviction under first-degree murder or outright acquittal.At trial, in support of the premeditated murder count, the government argued that the shooter in this case had "plenty of time to think about it" and so the result "was a premeditated act of brutal murder."In defense, appellant focused on the credibility of witness Kelly Hull, questioning her ability to accurately identify the shooter based on her past history of PCP addiction and her alcohol consumption on the night of the murder.The instruction as to a lesser offense is deemed unfair, it is urged, because it increased the likelihood—in this case—that a jury would compromise its verdict and settle on the lesser offense.

Of course, each side in a criminal prosecution is entitled, respectively,...