Murray v. District of Columbia

• Decision Date: 03 June 1976
• Docket Number: No. 9968.,9968.
• Citation: 358 A.2d 651
• Parties: Bruce Marcus MURRAY, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

358 A.2d 651

Bruce Marcus MURRAY, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 9968.

District of Columbia Court of Appeals.

Argued March 23, 1976.

Decided June 3, 1976.

Thomas Hylden, law student counsel, with whom Susan J. Bryant, Washington, D. C., was on the brief, for appellant.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before FICKLING, KERN and NEBEKER, Associate Judges.

FICKLING, Associate Judge:

This is an appeal from a jury trial conviction of reckless driving in violation of D.C.Code 1973, § 40-605(b). The issues raised on appeal are (1) whether the trial court erred by amending the instructions to the jury after final argument and the commencement of deliberations; and (2) whether appellant was denied his constitutional right to final summation by virtue of the supplemental instructions to the jury. We affirm.

On March 6, 1975, appellant was charged by information with committing the offense of reckless driving in violation of D.C. Code 1973, § 40-605(b).¹ The information, tracking the language of the latter portion of the above statute, charged that on March 4, 1975, appellant committed the offense of reckless driving

in that he did then and there operate a vehicle without due caution and circumspection and at a speed and in a manner so as to endanger or be likely to endanger persons and property in violation of section 40-605(b) of The District of Columbia Code.

At trial, after the close of all the evidence but before final argument, the trial court pursuant to Super.Ct.Cr.R. 30,² informed counsel for both sides that as part of its instructions it would read the statutory definition of reckless driving to the jury. Trial counsel for appellant began his final argument by reading § 40-605(b) in its entirety to the jury. Government counsel immediately objected, stating:

Your Honor, I object, he is not reading the part of the charge with [w]hich the defendant is charged.

The court overruled the objection, stating that it would later instruct the jury on the law. Counsel then proceeded to couch the remainder of his final summation solely in terms of the uncharged portion of the statute, arguing that his client lacked a "wilful or wanton disregard of the rights or safety of others."

After all final arguments were given, the trial judge instructed the jury concerning the definition of reckless driving as follows:

Now, what do we mean by reckless driving. The statute reads, "any person who drives any vehicle upon a highway carelessly and heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving. ["] Now, what do we mean by wilful or wanton. An act is done wilfully i[f] it is done knowingly, intentionally and deliberately. An act is done wantonly if done with cavalier and heedless disregard of the consequences of that act.

Both sides expressed satisfaction with the court's instructions, and the jury was sent out to deliberate.

After some five hours of deliberation, the jury sent the trial judge a note requesting the definitions of the terms "reckless," "wanton," "intent," and "willfulness." Although government counsel had no objection to reinstruction on these terms, he again reminded the court that the information did not charge willful or wanton conduct. The trial judge agreed that the instructions had been overinclusive. Over the objection of appellant's counsel, the court indicated that it would inform the jury of the erroneous instruction.

Upon its return, the judge reinstructed the jury as follows:

Under the reckless driving statute there are two different offenses. Unfortunately, yesterday, the Court instructed you with respect to both offenses.

One offense is to drive carelessly and heedlessly in willful and wanton disregard of the rights and safety of others. That was not the offense charged here. It was my error in instructing you as to both offenses under the reckless driving statute.

What was charged here is that the defendant did on the date in question, at the place in question, operate a vehicle without due caution and circumspection, and at a speed and in a manner so as to endanger or be likely to endanger persons or property.

Thus, there is no need for me to define the term wanton, since that is not an element of the offense charged, nor is there need to define willfulness since that is not an element of the offense charged.

After further deliberations, the jury found appellant guilty as charged. This appeal followed.

First, we conclude that it was not error for the trial judge to withdraw from the jury's consideration the inapplicable portions of the court's previous overinclusive instruction concerning the definition of reckless driving. It is settled law that the decision whether and how to reinstruct a jury is within the sound discretion of the trial court. See United States v. Wharton, 139 U.S.App.D.C. 293, 296 n. 9, ...