SWANN v. U.S.

• Citation: 648 A.2d 928
• Decision Date: 11 October 1994
• Docket Number: No. 91-CF-1141,91-CF-1141
• Parties: Theodore SWANN III, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

648 A.2d 928

Theodore SWANN III, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-1141.

District of Columbia Court of Appeals.

Argued October 5, 1993.

Decided October 11, 1994.

APPEAL FROM THE SUPERIOR COURT, MICHAEL L. RANKIN, J.

Stephanie Harrison, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Chrisellen R. Kolb, Asst. U.S. Atty., with whom J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, and John R. Fisher, Elizabeth Trosman and N. Paul Patterson, Asst. U.S. Attys., were on the brief, for appellee.

Before STEADMAN and SCHWELB, Associate Judges, and MACK, Senior Judge. ^*.

Former Chief Judge ROGERS was a member of the division that heard oral argument in this case. After her departure from the court, Associate Judge SCHWELB was selected by lot to replace her.

STEADMAN, Associate Judge:

This case arises out of a basketball court dispute between appellant, Theodore Swann, and the decedent, Steven Crawford. Appellant testified that he thought Crawford was about to draw a gun on him, so he drew first and shot at Crawford, killing him. A self-defense instruction was given, but the trial court refused to instruct the jury on voluntary manslaughter under a theory of imperfect self defense. Appellant was convicted of first-degree premeditated murder.

The principal issue on appeal is whether appellant was entitled to a voluntary manslaughter instruction on a theory of imperfect self-defense. We hold that he was entitled to the requested instruction, but we further hold that the failure to give the requested instruction provides no ground for a new trial on the facts here where appellant was convicted of first-degree premeditated murder.

I.

In early March of 1988, at about four in the afternoon, Crawford and two friends drove to a basketball court to shoot baskets. Appellant arrived soon thereafter, also accompanied by two friends. The two groups watched the basketball game already underway and shot baskets when the game was at the other end of the court.

There was conflicting testimony as to how the argument between Crawford and appellant originated and the progress of events thereafter. Appellant's version was as follows. Appellant was bouncing a ball which Crawford "tried to penetrate," causing the ball to hit appellant in the stomach, where he had recently been stabbed, and then to hit his foot.¹ Crawford told appellant to get off the court, and the two started to argue.² As appellant walked past Crawford, Crawford said, "You think you stabbed up now, just watch."³ Then Crawford put his hands to his side and appeared to be reaching for his back pocket.⁴ Appellant had seen a bulge in Crawford's pocket and thought that Crawford was retrieving a gun in order to kill him.Appellant then pulled a gun from his waistband and shot Crawford twice in the head.⁵

Appellant asserted that he had a number of reasons for believing that Crawford was going to kill him: (1) appellant had a heightened sense of fear since the stabbing and thus carried the gun to the basketball court because he was afraid of retaliation from his previous attackers; (2) Crawford alluded to appellant's previous stabbing by saying, "you think you stabbed up now, just watch:" and (3) appellant had heard that Crawford had killed someone with a gun.

II.

We turn to the issue whether the trial court erred in refusing to instruct on voluntary manslaughter under a theory of imperfect self-defense.

A.

The standards for an acquittal on the ground of self-defense in a homicide case are exacting. First, the defendant must have an actual belief both that he or she is in imminent danger of serious bodily harm or death and in the need to use deadly force in order to save himself or herself. Second, in both cases, in addition to such an actual belief, the defendant's belief must be objectively reasonable.⁶ Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (per curiam); United States v. Peterson, 157 U.S.App.D.C. 219, 226-27, 483 F.2d 1222, 1229-30, cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244 (1973); see CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, Nos. 5.12, 5.13 (4th ed. 1993).⁷ A problem arises, however, where the jury may conclude from the evidence that the defendant's belief that he was in imminent danger and that he had to use deadly force to repel that danger was in fact actually and honestly held but was in one or both respects objectively unreasonable. It is in such circumstances that the issue arises whether a defendant is entitled to an instruction on the law of voluntary manslaughter under the so-called "imperfect self-defense" doctrine. That is appellant's claim here.

In Comber, supra note 6, the en banc court had occasion to explore at some length the basic concepts underlying the crime of voluntary manslaughter. "[I]n all voluntary manslaughters, the perpetrator acts with a state of mind which, but for the presence of legally recognized mitigating circumstances, would constitute malice aforethought, as the phrase has been defined for purposes of second-degree murder." 584 A.2d at 37. On the other hand, a defendant is not guilty of any crime at all if he kills with "justification or excuse."⁸ Id. at 40-41. In particular, as relevant here, "even an intentional killing, if it comports with legally accepted notions of self-defense, is not malicious; it is excused and accordingly no crime at all." Id at 41 (citation omitted). "The absence of justification, excuse, or mitigation is thus an essential component of malice, and in turn of second-degree murder, on which the government bears the ultimate burden of persuasion." Id.

The question then becomes what are legally recognized mitigating circumstances that can justify a reduction from second-degree murder to voluntary manslaughter.The "mitigation principle is predicated on the legal system's recognition of the 'weaknesses' or 'infirmity' of human nature," and "[l]egally recognized mitigating factors serve to extenuate or 'dampen[]' the otherwise malicious nature of the perpetrator's mental state." Id. at 41 (citing United States v. Bradford, 344 A.2d 208, 214-15 (D.C. 1975)). In Comber, we noted that "such mitigating circumstances most frequently arise 'where the killer has been provoked or is acting in the heat of passion.' " Id. at 41 (quoting Bradford, supra, 344 A.2d at 215). However, we noted, mitigating circumstances may also be found in other circumstances, such as "when excessive force is used in self-defense" and "[a] killing is committed in the mistaken belief that one may be in mortal danger." Id. at 41 (quoting Logan v. United States, 483 A.2d 664, 671 (D.C. 1984)). Since a belief that is both actually held and objectively reasonable is a complete exoneration from a charge of homicide, it seems indisputable in light of the foregoing authorities that if so believed by the jury, a defendant's actual belief both in the presence of danger and the need to resort to force, even if one or both beliefs be objectively unreasonable, constitutes a legally sufficient mitigating factor to warrant a finding of voluntary manslaughter rather than second-degree murder.⁹

B.

The government does not take serious issue with the foregoing propositions in the abstract. It asserts, nonetheless, that appellant was not entitled to an instruction on imperfect self-defense manslaughter on the facts here. Its principal arguments invoke three distinct grounds.¹⁰

First, the government argues that the claim of imperfect self-defense should be analyzed under the "adequate provocation" prong of voluntary manslaughter. It notes that in Comber, we said that a voluntary manslaughter instruction is justified "where the killer has been provoked or is acting in the heat of passion, with the latter including fear, resentment and terror, as well as rage and anger." Comber, supra note 6, 584 A.2d at 41 (quoting Bradford, supra, 344 A.2d at 215). Focusing upon the words "fear" and "terror," the government argues that the "provocation" here was inadequate as a matter of law.

As we understand it, this "provocation" argument focuses upon the requirement in a true self-defense claim that the defendant actually and reasonably believes that his life is in peril. Because the presence of adequate provocation in mitigation analysis to reduce second-degree murder to manslaughter is based solely upon an objective analysis of the factual situation, see CRIMINAL JURY INSTRUCTIONS, supra, Nos. 4.18, 4. 19, 4.20, 4.21 ("adequate provocation if his/her action is provoked by conduct that wouldcause an ordinary, reasonable person in the heat of the moment to lose his/her self-control"); 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7.10(b)(10) (2d ed. 1986), this same approach, it is said, should be used where the issue arises in the context of an imperfect self-defense claim.

While this argument is not without force, we think that an imperfect self-defense claim must be viewed through a different prism. Unlike other aspects of provocation, which can only reduce a homicide to manslaughter, a state of mind arising out of a self-defense situation justifies outright exoneration if reasonable. Because the subjective state of mind required for an imperfect self-defense claim is identical to that required for a true self-defense claim, we can find in the controlling authority no suggestion that an actual, albeit unreasonable, belief that one's life is in danger cannot serve as a mitigating factor justifying a voluntary manslaughter instruction where also coupled with an actual belief that the force used was necessary in self-defense. Thus, however the emotions of fear and terror unrelated to self-defense may relate to mitigation of second-degree murder where the killing was provoked or the defendant acted in the heat of passion, we think that analysis cannot be controlling on the distinct issue of a killing...