U.S. v. Black, 81-5244

• Decision Date: 28 September 1982
• Docket Number: No. 81-5244,81-5244
• Citation: 692 F.2d 314
• Parties: 11 Fed. R. Evid. Serv. 1124 UNITED STATES of America, Appellee, v. Robert D. BLACK, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 314

692 F.2d 314

11 Fed. R. Evid. Serv. 1124

UNITED STATES of America, Appellee, v. Robert D. BLACK, Appellant.

No. 81-5244.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1982.

Decided Sept. 28, 1982.

David J. Fudella, Alexandria, Va. (John D. Grad, Hirschkop & Grad, P.C., Alexandria, Va., on brief), for appellant.

William G. Otis, Sp. Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Rosemary E. Glynn, Sp. Asst. U.S. Atty., Washington, D. C., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Robert D. Black, an inmate of the Lorton Reformatory, appeals his conviction for assaulting and impeding a correctional officer with a deadly weapon. Assigned as grounds for reversal are (1) the admission of certain evidence which defendant contends was irrelevant and unduly prejudicial, and (2) the jury instruction on the issue of self-defense. Finding that the self-defense instruction was indeed erroneous, we reverse and remand for a new trial.

I.

Black was charged in a single-count indictment under 22 D.C.Code Sec. 505(b) (1981) for using "a dangerous and deadly weapon, that is, a knife" in "assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], and interfer[ing] with" a correctional officer engaged in the performance of official duties. The incident in question took place in a cell block at Lorton when Black refused Officer Alvin Henry's order that he return to his cell. It is undisputed that Black threatened Henry with a homemade knife, backed Henry off, and finally returned to his cell. Black testified that he drew his weapon only after Henry swung at him with a putty knife. Officer Henry denied that he wielded a putty knife or any other weapon.

II.

At trial, the court admitted Officer Henry's testimony that Black, after returning to his cell, threw human feces at Henry. ¹ Defense counsel objected to the introduction of this evidence as irrelevant and unduly prejudicial. The district court, however, ruled the evidence relevant and admissible as "part of the overall scheme of" the crime.

The parties treat the admissibility of this evidence as being governed by Federal Evidence Rule 404(b). ² Black argues that the testimony constituted evidence of "other crimes" which should have been excluded. The government counters that the incident followed so closely on the armed confrontation that evidence of the subsequent act was admissible on a "res gestae" theory as an exception to Rule 404(b).

We need not choose between these opposing positions, for the fact is that Black was charged with "assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], and interfer[ing] with" Henry in the performance of Henry's official duties and with using a knife in so doing. The statute under which Black was charged does not treat use of a deadly weapon as a separate violation but instead as a factor which aggravates the offense of assaulting or interfering with a public officer. ³

According to Henry, Black threw excrement in an effort to drive Henry away from Black's cell and thereby gain an opportunity to hide the knife. Such conduct, if it occurred, was not merely part of the context of the crime; it was part of the crime itself--a continuing course of interference with Henry's execution of his duties. ⁴ Thus, Henry's testimony in this regard introduced no "other act," but rather dealt directly with an ultimate issue of fact. Viewed in this way, Henry's testimony is obviously relevant and falls outside the scope of Rule 404(b).

Having determined that Rule 404(b) does not mandate exclusion of Henry's testimony, we affirm the district court's decision to admit the evidence under Rule 403. ⁵ Black argues that evidence that he threw human feces at Henry was so inflammatory that it should have been excluded even if it was relevant. Under Rule 403, however, relevant evidence is excludible only if its prejudicial effect substantially outweighs its probative value. The balance is for the trial court to strike, and its decision to admit evidence over a Rule 403 objection will be reversed only if it constitutes an abuse of discretion. See United States v. Tibbetts, 565 F.2d 867, 868-69 (4 Cir. 1977).

As noted above, the testimony in question went directly to an ultimate issue of fact. Hence, the probative value of the evidence was high. No doubt, its prejudicial impact was also great. In our view, however, the balance was not so uneven that admission of Henry's testimony can be deemed an abuse of discretion.

III.

At the close of the evidence, Black requested an instruction on self-defense. ⁶ Under the requested instruction, the jury would have been required to acquit if it found that the corrections officer employed excessive force and Black responded with an amount of force he reasonably deemed necessary to avoid bodily harm to himself. The court, however, rejected the suggested instruction. It gave instead a charge to the effect that Black was entitled to defend himself with "deadly force" if he reasonably believed that such force was necessary to escape imminent death or serious bodily harm. ⁷ Black argues that the self-defense instruction was erroneous in two respects. First, he contends that the instruction misled the jury by framing the issue in terms of an accused's right vel non to use deadly force, whereas the evidence showed merely a threat to use force. Second, he argues that the instruction conditioned the right of self-defense on the presence of an imminent threat of death or serious bodily harm, whereas the law actually provides that one may repel a lesser threat with reasonable force.

We agree that the instruction given by the district court was designed for cases of deadly assault and was thus inappropriate in a case involving no more than a threat to use force. ⁸ There was no testimony that Black attempted to kill Officer Henry. All of the witnesses agreed that Black merely brandished the knife and threatened to use it. Hence the district court's repeated references to "deadly force" erroneously strayed from the evidence. That error, however, may have been harmless. Precisely because the evidence was so clear that Black only threatened deadly force and did not actually resort to it, a rational juror would not likely have been misled by the court's inapposite words. See generally United States v. Nyman, 649 F.2d 208, 211-12 (4 Cir. 1980).

Black's second argument is more compelling. The court several times repeated that Black's self-defense theory was justified only if he faced "imminent danger of death or serious bodily harm." Had Black attempted to kill Officer Henry, this instruction would have been correct. But the instruction implied that the lesser force which defendant actually employed could not justifiably have been directed at a threat less grave than death or serious injury. In this respect, the instruction misstated the law. Under the traditional rule, the quantum of force which one may use in self-defense is proportional to the threat which he reasonably apprehends. Professors LaFave and Scott have aptly summarized the governing principle:

In determining how much force one may use in self-defense, the law recognizes that the amount of force which he may justifiably use must be reasonably related to the threatened harm which he seeks to avoid. One may justifiably use nondeadly force against another in self-defense if he reasonably believes that the other is about to inflict unlawful bodily harm (it need not be death or serious bodily harm ) upon him (and also believes that it is necessary to use such force to prevent it). That is, under such circumstances he is not guilty of assault (if he merely threatens to use the nondeadly force or if he aims that force at the other but misses) or battery (if he injures the other by use of that force). He may justifiably use deadly force against the other in self-defense, however, only if he reasonably believes that the other is about to inflict unlawful death or serious bodily harm upon him (and also that it is necessary to use deadly force to prevent it).

W. LaFave & A. Scott, Handbook on Criminal Law 392-93 (1972) (footnotes omitted, emphasis partly in original). See Harris v. United States, 364 F.2d 701, 702 (D.C.Cir.1966) ("One who is attacked may repel the attack with whatever force he reasonably believes is necessary under the circumstances ...."). See generally Brown v. United States, 256 U.S. 335, 344, 41 S.Ct. 501, 502, 65 L.Ed. 961 (1921). Under this notion of proportionality, a danger which is not so great as to justify an actual killing in self-defense may nevertheless be serious enough to justify an unexecuted threat to use deadly force. See W. LaFave & A. Scott, supra, at 392 & n.13.

We assume, of course, that the jury followed the instruction laid down by the court. On the basis of the conflicting testimony presented at trial, the jury may have believed that Officer Henry struck Black with a putty knife and that Black reasonably feared bodily injury. Under a proper instruction, they might have concluded that Black's threat to use a knife was reasonably proportioned to the danger posed by Henry. The instruction given, however, foreclosed that conclusion. It permitted acquittal only if Black reasonably feared death or serious bodily harm.

Plainly, the court's instruction inadequately conveyed the law of self-defense. ⁹ This error could be deemed harmless only if Black's threat constituted excessive force as a matter of law, in which case he was entitled to no self-defense instruction at all. Cf. United States v. Johnson, 542 F.2d 230, 232-33 (5 Cir. 1976) (the invalidity of a seizure under the fourth amendment can never, without more, justify resistance by means of a threat of deadly force). But the district court correctly determined that self-defense was a question for the jury; the government...