Moore v. US, 90-837.

• Decision Date: 27 November 1991
• Docket Number: No. 90-837.,90-837.
• Parties: Tommie L. MOORE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

599 A.2d 1381

Tommie L. MOORE, Appellant, v. UNITED STATES, Appellee.

No. 90-837.

District of Columbia Court of Appeals.

Argued September 16, 1991.

Decided November 27, 1991.

Howard F. Bramson, Washington, D.C. appointed by this court, for appellant.

Robin Ashton, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and William J. Hochul, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before STEADMAN, SCHWELB and FARRELL, Associate Judges.

SCHWELB, Associate Judge:

I

Moore was convicted by a jury of mayhem, in violation of D.C.Code § 22-506 (1989), and assault with a dangerous weapon (shod foot) (ADW), in violation of D.C.Code § 22-502 (1989). These convictions arose out of an incident in which, while wearing work boots, Moore allegedly kicked a young woman in the eye and face, lacerating her cornea and permanently blinding or near-blinding her in one eye.

According to the complaining witness, Moore approached her in the street in the early morning hours of May 23, 1989 and requested sex. After she refused his advances, he choked and punched her. The complaining witness broke away and ran across the street, but tripped and fell. Moore caught up with her and renewed his assault, hitting her and kicking her in the eye. The complainant's account of the beating and kicking was substantially corroborated by a woman (a stranger both to Moore and to his victim) who was able to observe the altercation from her window.

According to Moore, the complaining witness was a prostitute who stole money from him while he and another woman were consummating romantic activity in his apartment. Moore admitted slapping the complainant and chasing her into the street, but denied kicking her. Moore claimed that the complainant injured her eye when she fell against the curb.

The jury resolved the decisive factual issues in the prosecution's favor, and Moore was sentenced to serve two concurrent prison terms of two to six years. The judge recommended that he be granted work release after fifteen months of incarceration.

On appeal, Moore contends that the trial judge committed reversible error by denying his motion for judgment of acquittal on the ADW charge, by permitting a third year resident in ophthalmology to testify as to her opinion regarding the permanence of the injury to the complainant's eye, and by refusing to instruct the jury with respect to simple assault as a lesser included offense of mayhem. We are unpersuaded by either of the first two contentions¹ but find merit in the third. Accordingly, we affirm Moore's ADW conviction but vacate his conviction for mayhem.²

II

The judge instructed the jurors on assault as a lesser included offense of ADW. He did not, however, instruct them that assault is also a lesser included offense of mayhem. As a result, on the mayhem count, the jury had only two alternatives, namely, to convict Moore of mayhem or to acquit him outright. Moore contends that it was reversible error not to give the jury the third choice of convicting him of the lesser included offense of assault.

It is not disputed by the government that assault is in fact a lesser included offense of mayhem. As we recently stated in Edwards v. United States, 583 A.2d 661, 668 (D.C.1990),

the elements of mayhem are: (1) that the defendant caused permanent disabling injury to another; (2) that he had the general intent to do the injurious act; and (3) that he did so willfully and maliciously. Wynn v. United States, 538 A.2d 1139, 1145 (D.C.1988).

A "battery type" assault such as that alleged here is an attempt or effort, with force or violence, to do injury to the person of another; the prosecution must prove that the defendant had the apparent present ability to carry out such an attempt or effort, and had a general intent to do the act or acts constituting the assault. Williamson v. United States, 445 A.2d 975, 978 (D.C.1982); Jones v. United States, 401 A.2d 473, 475 (D.C.1979); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.11 (3d ed.1975). We held in Edwards, supra, that assault is a lesser included offense of malicious disfigurement, id., 583 A.2d at 668, and now conclude that it is likewise a lesser included offense of mayhem.³

"A defendant is entitled to a lesser included offense instruction when ... all elements of the lesser offense are included in the offense charged, and when there is a sufficient evidentiary basis for the lesser charge." Simmons v. United States, 554 A.2d 1167, 1170 (D.C.1989). In the present case, Moore testified that he slapped the complaining witness but did not kick her. He vigorously challenged the allegation that his accuser suffered disabling permanent injury. If the jury had entertained a reasonable doubt that Moore kicked the complainant (rather than merely slapping her), or if it was not satisfied that the prosecutor had proved that the injury to the woman's eye was permanent, it could rationally have found Moore not guilty of mayhem but guilty of assault.⁴ Under these circumstances, he was entitled, upon timely request, to an instruction on assault in connection with the mayhem count.

During discussion with counsel as to whether such an instruction should have been given, the judge remarked that the jurors

are not going to find this person guilty of assault. If anything, they're going to find him guilty of mayhem, in my view, on this evidence.

It is not clear whether this was simply a casual comment separate from the judge's legal analysis, or whether the judge included in his decision-making calculus his personal assessment of the evidence against Moore. Whatever may have been intended, a defendant's right to a lesser included offense instruction does not depend on a judge's opinion of the weight of the evidence. As the Supreme Court explained almost a century ago in Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 843, 40 L.Ed. 980 (1896),

a judge may be entirely satisfied from the whole evidence in the case, that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.

See also Beck v. Alabama, 447 U.S. 625, 636, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (quoting Stevenson); Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973).

The judge also expressed doubt that Moore could be prejudiced if the jury were given a choice between finding him guilty of mayhem and acquitting him.⁵ We cannot say that the judge's view was illogical; if the jurors could not find beyond a reasonable doubt that the complainant's injuries were permanent, they were obligated under the court's instructions to acquit the defendant. Indeed, the lesser included offense doctrine evolved at common law "to prevent the prosecution from failing where some element of the crime charged was not made out." Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966) (emphasis added) (quoting People v. Mussenden, 308 N.Y. 558, 562, 127 N.E.2d 551, 553 (1955)), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).

The Supreme Court has held in this context, however, that theoretical considerations must yield to the Court's perception of what might happen in reality:

True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option—convicting the defendant of simple assault— could not have resulted in a different verdict.

Keeble, supra, 412 U.S. at 212-13, 93 S.Ct. at 1997-98 (emphasis in original); Beck, supra, 447 U.S. at 635, 100 S.Ct. at 2388 (quoting Keeble); see also Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159, 82 L.Ed.2d 340 (1984) ("the goal of the Beck rule ... is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence").

III

The government does not take issue with these principles, but contends that Moore was not entitled to an instruction on assault as a lesser included offense of mayhem because, it claims, he failed to make a timely request for one. Correctly noting that proposed instructions must be submitted prior to closing argument, so that counsel are in a position to know, at the time they frame those arguments, what the judge's instructions will be, see Shreeves v. United States, 395 A.2d 774, 786 (D.C.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979), the government contended below, and now...