Sellars v. United States

Decision Date27 April 1979
Docket NumberNo. 10508.,10508.
PartiesAndre SELLARS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Kenneth H. Shepherd, Washington, D. C., for appellant.

Mary H. Weiss, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before HARRIS and MACK, Associate Judges, and REILLY, Chief Judge, Retired.

HARRIS, Associate Judge:

A grand jury indicted appellant charging the second-degree murder of Epluribus Thomas, D.C.Code, 1973, § 22-2403; assault on his brother, Clyde Thomas, with intent to kill while armed, id., §§ 22-501, -3202; the lesser-included offense of assault with intent to kill, id., § 22 501; and carrying a pistol without a license, id., § 22-3204. Appellant was convicted by a jury of the manslaughter of Epluribus Thomas, id., § 22-2405, and of carrying a pistol without a license. He makes several attacks upon his convictions. None is persuasive; we affirm.

I

The government's evidence was that the Thomases drove in Epluribus' car into the parking lot of a convenience store, intending to buy cigarettes. Clyde saw appellant approach, carrying two pistols. Epluribus got out of the car and exchanged some words with appellant about a debt which the latter owed him. Appellant then shot him fatally. Immediately thereafter, appellant turned on Clyde, who was standing outside the car. Appellant announced that he was going to kill Clyde, and shot him several times. After the shootings, appellant fled the scene in a car driven by his brother. As they drove off, appellant leaned out the window and shot a man lying on the ground (apparently Epluribus). The body jumped when the bullet hit it. One government witness testified that appellant admitted to her that he had shot the Thomas brothers, but appellant had added that he thought Clyde had been reaching for a gun inside Epluribus' car.1

Appellant claimed that he acted in selfdefense. He presented evidence that a few days before the shootings he had intervened in a fight to stop an assault by Clyde on another man, and that as a result of that intervention Clyde had threatened to kill him. He also testified that Clyde had a reputation for violence. On the day of the shootings, appellant met two acquaintances at the convenience store. One of those acquaintances, Merrill Logan, recently had been beaten by the Thomas brothers, and he advised appellant that the brothers were "out to get [appellant]." At that moment, the Thomas brothers drove into the store's parking lot. Epluribus started to get out of his car and told everyone to "freeze" or they would be shot. Appellant, thinking that the Thomas brothers were armed, took Logan's gun from a paper bag underneath the car next to him and also grabbed a second gun from Logan. He saw Epluribus reach for something in a bag and shot him, and then shot a second time when he spun around. He then ordered Clyde out of the car. When Clyde acted as though he was about to reach into the car, appellant shot him in the back. Appellant denied firing another shot into Epluribus as he drove away. Although a holster was removed from the trunk of Epluribus' car, neither Clyde nor Epluribus had been armed. The bag purportedly held by Epluribus was not recovered.

After the close of the evidence, the prosecutor and defense counsel gave their final arguments. During the prosecutor's summation, the following occurred:

[THE PROSECUTOR]: As that car pulled away he [defendant] took one of those guns and he put another shot into Epluribus Thomas.

Now, [the witness] knows that shot took effect because [Epluribus'] body jumped when it hit. Doesn't that tell you more than anything else in this case about what Mr. Andre Sellars had in mind?

You know, when a firing squad executes somebody, at least in some military republics and some dictatorships, they have what is called a coup de grace. That's a French expression

[DEFENSE COUNSEL]: We object to it, Your Honor.

THE COURT: Objection overruled, sir.

[THE PROSECUTOR]: What it is when a man is shot by a firing squad, the leader of that firing squad then goes up to the man who is being executed and takes a pistol and puts one final bullet in that man's head to make sure he's dead. Andre Sellars as he drove, or as he rode out of that 711 parking lot with his brother driving, administered the coup de grace to Epluribus Thomas who was laying on the ground, just to make sure he was dead.

Doesn't that tell you more than anything what this man's intentions were?

Thank you.

The next morning, before jury instructions were given, defense counsel proffered testimony by one George Cobb to the effect that after the shootings he saw Victoria Thomas, a sister of Clyde and Epluribus, talking with Clyde. Allegedly, Victoria then retrieved a gun from beneath the passenger seat of Epluribus' car and put it in her bag. The government took the position that if Cobb were permitted to testify, then it should be allowed an opportunity to interview Victoria and determine whether she also should be called. The trial court declined to reopen the case, finding the proffered testimony to be irrelevant.

The jury convicted appellant of the lesser-included offense of manslaughter of Epluribus and of carrying a pistol without a license, and acquitted him of the assault counts as to Clyde Thomas. The members of the jury were polled on the two convictions. Each juror specifically agreed with the verdicts.

Several days later, the trial judge received a note from the jury foreman. It alleged that the jurors had agreed that appellant acted in self-defense, but that the verdict did not convey that agreement. The trial judge held a hearing in chambers, questioning each juror individually in the presence of the prosecutor, appellant, and defense counsel about the verdict. Three jurors reaffirmed the verdict as rendered. The foreman virtually admitted that he had changed his mind about appellant's guilt after the jury was discharged. The remaining jurors said they had believed appellant acted in self-defense and had intended the manslaughter verdict to reflect that conclusion. They apparently had misunderstood one portion of the court's charge, which read as follows:

If you find that the Government has failed to prove beyond a reasonable doubt that this defendant did not act in self-defense, in connection with the actions he took against both Epluribus Thomas and Clyde Thomas, you must find the defendant not guilty.

The court denied relief and imposed sentence. This appeal followed.

II

Appellant challenges the sufficiency of the evidence to sustain the manslaughter verdict. He appears to contend that the jury could have found the malice required for a murder conviction, or that the killing was a justifiable act of self-defense, but that it could not have found reckless "conduct involving extreme danger of death or serious bodily injury and gross deviation from the standard of conduct that a reasonable man would observe." United States v. Dixon, 135 U.S.App.D.C. 401, 407, 419 F.2d 288, 294 (1969) (LEVENTHAL, J., concurring); see United States v. Bradford, D.C. App., 344 A.2d 208, 215 (1975); United States v. Dent, 155 U.S.App.D.C. 278, 279, 477 F.2d 447, 448 (1973).

The jury, however, readily could have rejected appellant's claim of self-defense on the ground that his allegedly self-protective reaction was so excessive or unreasonable as to show the requisite culpability for manslaughter. Pendergrast v. United States, D.C.App., 332 A.2d 919, 925-26 & 926 n. 4 (1975); United States v. Wharton, 139 U.S. App.D.C. 293, 301, 433 F.2d 451, 459 (1970); see United States v. Dixon, supra, 135 U.S. App.D.C. at 402-03, 419 F.2d at 289-90. See also Carmichael v. United States, D.C. App., 363 A.2d 302 (1976); United States v. Dent, supra. As the United States Court of Appeals observed in United States v. Wharton, supra:

Appellant's jury may have recognized an obstacle to finding self-defense simply from the amount of force used to repel the deceased's attack. And if the jury rejected self-defense just because appellant imprudently misjudged the response necessary in the situation, his offense might well have been manslaughter, arising from the unreasonableness of the judgment he made. [139 U.S.App.D.C. at 301, 433 F.2d at 459 (footnote omitted).]

This doctrine permits a jury to find that homicidal conduct in cases like the present one constitutes manslaughter. The record contains ample evidence that appellant at a minimum acted with grave recklessness.

III

The trial prosecutor's remarks, made over defense objection, about execution and a "coup de grace" might better have been left unsaid. Similar remarks have been condemned in the past. See United States v. DeLoach, 164 U.S.App.D.C. 116, 124, 504 F.2d 185, 193 (1974); United States v. Jones, 157 U.S.App.D.C. 158, 164, 482 F.2d 747, 753 (1973); Taylor v. United States, 134 U.S.App.D.C. 188, 413 F.2d 1095 (1969); cf. Villacres v. United States, D.C.App., 357 A.2d 423, 427, 28 (1976). The government (as it generally does in cases of alleged prosecutorial excess) notes that "a criminal trial is not a minuet." Taylor v. United States, supra, 134 U.S.App.D.C. at 189, 413 F.2d at 1096. However, as Judge (now Chief Justice) BURGER pointed out in Taylor, prosecutors should adhere to standards which "uphold the dignity of the Government." Ibid.

A comment of this sort, however, does not automatically call for reversal. See, e. g., United States v. Jones, supra, 157 U.S.App.D.C. at 164, 482 F.2d at 753. An appellant is entitled to a new trial based upon prosecutorial misconduct only if, after balancing the gravity of the prosecutorial misconduct against the weight of the evidence against appellant, we are unable to say that the conduct did not substantially sway the judgment of the jury. See ...

To continue reading

Request your trial
47 cases
  • JOHNSON v. U.S.
    • United States
    • D.C. Court of Appeals
    • October 17, 1996
    ...of him in the autopsy in Maryland. Referring to the "execution" of the two boys may have been unduly dramatic. See Sellars v. United States, 401 A.2d 974, 977-78 (D.C. 1979) (describing shooting as execution). Similarly, noting that one bullet came from "one boy's ear" and that another bull......
  • Khaalis v. United States
    • United States
    • D.C. Court of Appeals
    • October 22, 1979
    ...without a hearing.102 B. There is a wise, traditional rule that a juror cannot impeach his or her own verdict. Sellars v. United States, D.C.App., 401 A.2d 974, 981-82 (1979); see McDonald v. Pleas, 288 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1800 (1915). ABA Project on Minimum Standards for ......
  • Porter v. United States
    • United States
    • D.C. Court of Appeals
    • February 16, 2012
    ...A.2d 235, 237 (D.C.1977) vi. Rule 32 (1) Warren v. United States, 436 A.2d 821, 841 n. 45 (D.C.1981) vii. Rule 33 (1) Sellars v. United States, 401 A.2d 974, 978 (D.C.1979) (2) Diamen v. United States, 725 A.2d 501, 506 (D.C.1999) viii. Rule 35 (1) Brown v. United States, 795 A.2d 56, 61 (D......
  • Jones v. United States
    • United States
    • D.C. Court of Appeals
    • May 31, 1984
    ... ... Reid by defense counsel in closing argument, when the issue of Mr. Reid's fear was first raised, the defense opened the door for the prosecutor properly to meet the attack. Medina v. United States, 315 A.2d 169 (D.C.1974). That his comment about guns might better have been left unsaid, Sellars ... Page 249 ... v. United States, 401 A.2d 974, 977 (D.C. 1979), does not cause us to conclude that it was plain error. The comment was a passing remark (a few sentences) in the course of a rebuttal argument (14 pages) that focused on the weaknesses of the alibi defense by reviewing the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT