Shuler v. US, 94-CF-1244.

• Decision Date: 30 May 1996
• Docket Number: No. 94-CF-1244.,94-CF-1244.
• Citation: 677 A.2d 1014
• Parties: Anthony SHULER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

677 A.2d 1014

Anthony SHULER, Appellant, v. UNITED STATES, Appellee.

No. 94-CF-1244.

District of Columbia Court of Appeals.

Argued March 12, 1996.

Decided May 30, 1996.

Dale Warren Dover, Washington, DC, for appellant.

L. Jackson Thomas, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and FARRELL and RUIZ, Associate Judges.

FARRELL, Associate Judge.

Appellant was found guilty by a jury of, among other things, first degree premeditated murder while armed (D.C.Code §§ 22-2401, -3202 (1989)). For that crime he was sentenced to imprisonment for thirty years to life. His primary argument on appeal is that the trial judge erred in refusing to instruct the jury on the lesser included offense of second degree murder while armed. Our decisions have stated the relevant test to be "whether any evidence in the case, however weak, offered a rational basis for such an instruction." Hebron v. United States, 625 A.2d 884, 885 (D.C.1993) (citations omitted).¹ Considering appellant's defense at trial, the evidence supporting second degree murder here was marginal, but as we cannot say that a verdict of guilty on that count but not guilty of first degree murder would have been "irrational," Walker v. United States, 617 A.2d 525, 528 (D.C.1992), we must reverse and remand for a new trial.

I.

The government's principal witness in support of the charge of premeditated murder was Andrew Sharp. He had been jointly charged with appellant with the first degree murder of Leon Iracks, and had pled guilty to second degree murder while armed in return for his testimony at appellant's trial. He was awaiting sentence at the time. Sharp testified, in outline, that he, appellant, and a third person had shot Iracks repeatedly at the insistence of appellant, who feared that Iracks would identify him as the perpetrator of a stabbing a month earlier. According to Sharp, appellant spoke to him "quite a few times" about the need to kill Iracks.

Sharp explained that on the afternoon of October 24, 1992, appellant asked him to track down Iracks and bring him to appellant so that Iracks could be killed. Sharp found Iracks and spent the afternoon with him, then went to the home of a girlfriend around the corner from where the killing would later take place. While Sharp was eating dinner, an individual named Andre Washington knocked on the back door and asked Sharp to follow him. They walked together to the end of an adjoining alley where they met appellant and one Angelo Moore. Appellant handed Sharp a pistol; appellant and Moore were also armed with handguns. Except for Washington, the group walked to the 1400 block of First Street, S.W., where Sharp had last seen Iracks. When they found Iracks, appellant approached him and, without a word, shot him in the head. Iracks fell to the ground, whereupon all three men fired shots at him while standing over him. According to Sharp, none of the three wore masks, although appellant wore a hood. The group then retreated in the direction from which they had come, Sharp handing his gun back to appellant.

Forensic evidence established that Iracks suffered twenty-one gunshot wounds and that at least four different types of weapons had been used in the murder.

Appellant's defense was misidentification. He produced six witnesses who testified, with little variation among them, to having seen three to five men approach the scene just before the shooting took place. All were dressed in black or dark clothing and all wore masks, hoods, or both. None were known to the witnesses, but all were shorter and stockier than appellant, whom each witness knew. A seventh witness, appellant's brother-in-law, testified that appellant had been at his apartment near Bolling Air Force Base at the time of the murder.²

If this had been the sum total of the evidence, no lesser included offense issue would be presented. The trial judge would have been correct in her assessment that whether or not a reasonable doubt of appellant's guilt existed hung "on which side of this case the jury believes." But the government, recognizing Sharp's vulnerability as an admitted accomplice turned witness, also called Bonita Douglas to the stand. She lived adjacent to the murder scene and knew Sharp and appellant. She testified that on the night of the shooting she was watching television in her bedroom when she heard a conversation outside her window and, looking out, saw Iracks, Sharp, and appellant talking. When the prosecutor asked whether "they were arguing," she replied initially, "They had a conversation," but on cross-examination twice acknowledged that she had "heard the voices arguing."³ She observed the group for about five minutes and then went back to watching television. At one point she thought she heard one of the men ask, "Do you have it, where is it?" The conversation ended when, in "about a blink of an eye" after Douglas left the window (i.e., "a minute" later), she heard gunshots. She returned to the window and saw someone lying on the ground.

II.

We first consider the government's argument that appellant waived entitlement to the lesser included offense instruction because he did not specifically call the trial judge's attention to Douglas' testimony arguably implying that the shooting erupted spontaneously ("in the blink of an eye") from a heated discussion between the three or more men, possibly about something Iracks could not produce ("Do you have it, where is it"). The government points to the general admonition in our cases that objections to proposed jury instructions or refusal to instruct "must be made with reasonable specificity." Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992); see also Cowan v. United States, 629 A.2d 496, 503 (D.C.1993).

Appellant's counsel expressly asked for an instruction on second degree murder while armed, pointing out that in his view "there is some basis for it" inasmuch as this "was a frenzy type of killing" ("the number of shots and things like that") in which "we don't really have a lot of evidence as to ... premeditation and deliberation other than what Mr. Sharp says." While this was at best an oblique allusion to Douglas' testimony about an argument followed suddenly by a shooting, the case law does not require more provided the request for a lesser offense instruction is expressly made and is supported in fact by evidence.

In Young v. United States, 114 U.S.App. D.C. 42, 309 F.2d 662 (1962), the court of appeals reversed for failure to give a lesser included offense instruction on simple assault where on the evidence presented the jury "could have reasonably thought Young free of any intent to commit a robbery," the crime charged. Id. at 43, 309 F.2d at 663. The court traced the differing conclusions the jury could have drawn from the testimony of Young's accomplice, observing that which of these versions to accept "was exclusively a jury choice." Id. The court acknowledged that defense counsel had furnished little help to the judge in arraying the different possibilities:

Defense counsel might well have given the trial judge more assistance in presenting what is at best a close question of the right to the claimed charge. While counsel are usually not permitted to argue rulings after they have been made, this problem might well have been avoided had counsel, in requesting the charge, pointed specifically to the testimony on which he relied for the added instruction and to the controlling authorities.

Id. The court nevertheless reversed the conviction.

In Belton v. United States, 127 U.S.App. D.C. 201, 382 F.2d 150 (1967), the court affirmed a refusal to instruct on the lesser included offense of manslaughter because there was no "`evidence fairly tending to bear upon the issue of manslaughter,' however weak." Id. at 206, 382 F.2d at 155 (quoting Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 843, 40 L.Ed. 980 (1896)). In doing so the court emphasized what might be termed the pragmatic importance of a specific citation by trial counsel to the testimony supporting the instruction. It "suggested that where the issue is close, the request of defense counsel may properly be given the benefit of the doubt." Id. at 207, 382 F.2d at 156. Therefore, "if the trial court had been specifically apprised of the reconstruction of events now put forward to us by appellate counsel, it would have been well advised to give the manslaughter instruction," id. (emphasis added), whether or not it was strictly required to. As Young had made clear, however, counsel's failure "reasonably to alert the judge to the factual predicate underlying the instruction" would not be decisive provided the instruction was requested and there was evidence "fairly tending to bear on" the lesser included offense. Id. at 207 & n. 16, 382 F.2d at 156 & n. 16. In United States v. Sinclair, 144 U.S.App.D.C. 13, 444 F.2d 888 (1971), the court summed up the matter by explaining that "the refusal to give the lesser-included offense instruction is not error when . . . the kind of reconstruction of events needed to support a lesser charge is neither fairly inferable from the testimony nor pointed out by defense trial counsel." Id. at 15, 444 F.2d at 890 (emphasis added).

In light of these authorities, we conclude that appellant preserved the claim of failure to instruct on the lesser included offense.

III.

To justify a lesser included offense instruction, "there must be evidence to support a finding of guilt on the lesser offense." Id. at 14, 444 F.2d at 889 (citing Sparf v. United States, 156 U.S. 51, 63, 15 S.Ct. 273, 278, 39 L.Ed. 343 (1895)). In general, however, it is not the judge's function to assess the quality of that evidence, which the jury may...