U.S. v. Browner

• Decision Date: 16 November 1989
• Docket Number: No. 88-1838,88-1838
• Citation: 889 F.2d 549
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gina Antoinette BROWNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 549

889 F.2d 549

UNITED STATES of America, Plaintiff-Appellee, v. Gina Antoinette BROWNER, Defendant-Appellant.

No. 88-1838.

United States Court of Appeals, Fifth Circuit.

Nov. 16, 1989.

Ricardo D. Gonzalez, Walter L. Boyaki, Miranda & Boyaki, El Paso, Tex., for defendant-appellant.

Philip Police, LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, GARWOOD, and DUHE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Gina Antoinette Browner (Mrs. Browner) was charged with voluntary manslaughter in connection with the stabbing death of Curtis Browner (Mr. Browner), her husband. She was convicted following a jury trial in the United States District Court for the Western District of Texas. In this appeal from her conviction, she primarily challenges the district court's refusal to instruct the jury on the lesser included offense of involuntary manslaughter. We agree with this contention and accordingly reverse and remand for another trial.

Facts and Proceedings Below

Mr. and Mrs. Browner were married in 1985. Mr. Browner served as a Private First Class in the United States Army, and in early 1987 he was transferred to Fort Bliss Military Reservation near El Paso, Texas. The couple lived in on-base housing with Mrs. Browner's three-year-old daughter, Stephanie, who was a child of hers from a prior relationship.

The evidence showed that the Browners' marriage was replete with violence. Explosive public arguments between the two of them were apparently a frequent event both in their housing area and in the mess hall where Mr. Browner worked. The violence was mutual. On the one hand, Mr. Browner had a short temper that often degenerated into physical abuse of his wife and her daughter. On the other hand, at least three of their arguments culminated in Mrs. Browner publicly threatening Mr. Browner with large kitchen knives, all within the first several weeks of their residence at Fort Bliss.

On February 7, 1987, yet another fight erupted between Mr. and Mrs. Browner, and ultimately resulted in Mr. Browner's death. On that evening, Mr. Browner had been helping his friend Specialist Robert Hughes fix the frame to his waterbed. When Mr. Browner returned to his apartment to get a faucet adaptor to refill the waterbed mattress, he and his wife began to fight. Mrs. Browner testified that her husband began threatening and taunting her, shouting at her, following her throughout the house, preventing her from leaving. According to Mrs. Browner, he struck her daughter Stephanie as well. Finally, Mrs. Browner testified, she and Mr. Browner ended up in the kitchen, where he backed her into a corner near a cannister of knives. She pulled one of the knives from behind her back with her right hand, although she is left-handed. She threatened him with it, shouting at him to leave her alone. When she pulled the knife, he became even more enraged. A struggle ensued, and Mrs. Browner claims that she accidentally stabbed her husband in the shoulder.

The jury could have concluded that while most shoulder wounds are not life threatening, the wound Mrs. Browner inflicted on her husband breached a narrow gap between his arm bone and rib cage, and severed a major artery in his chest. He began bleeding profusely, and he was dead within a half hour. Mrs. Browner called for an ambulance and called Specialist Hughes, who immediately came to the scene. Military Police arrived a few minutes later, and some time after that the Emergency Medical Service ambulance arrived as well. All attempts to revive Mr. Browner on the scene and in the emergency room of a nearby hospital failed.

On April 21, 1988, a grand jury charged Mrs. Browner with voluntary manslaughter committed in the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. Sec. 1112. ¹ At the close of the evidence after a three-day trial, defense counsel requested the district court to instruct the jury on involuntary manslaughter as a lesser included offense, but without explanation the court refused. Mrs. Browner was convicted. On her appeal, she again challenges the district court's denial of her request for an involuntary manslaughter instruction.

Discussion

Rule 31(c) of the Federal Rules of Criminal Procedure provides in relevant part that a "defendant may be found guilty of an offense necessarily included in the offense charged." This rule entitles a defendant to a jury instruction on any lesser included offense whenever two independent prerequisites have been met: (1) the elements of the lesser offense must be a subset of the elements of the charged offense; and (2) the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater. Schmuck v. United States, --- U.S. ----, 109 S.Ct. 1443, 1450 & n. 8, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). The purpose of this protection is to prevent juries from improperly resolving their doubts in favor of conviction when one or more of the elements of the charged offense remain unproven, but the defendant seems plainly guilty of some offense. See Keeble, 93 S.Ct. at 1998. On the facts of this case, both prerequisites were satisfied, and Mrs. Browner was entitled to the protection of the rule.

I. Is involuntary manslaughter a lesser included offense of voluntary manslaughter?

Determining whether the first prerequisite, or the "elements test," has been met requires a comparison of the statutory elements of the offenses involved without reference to the conduct proven at trial. Schmuck, 109 S.Ct. at 1450. Rule 31(c) requires that the lesser included offense be "necessarily included in the offense charged," and the Supreme Court has construed this language to mean that the statutory elements of the lesser offense must constitute a subset of the elements of the charged offense, so that the charging language in the indictment places the defendant on notice that he may be convicted of either crime. Id. at 1451.

The first issue in this case, therefore, is whether the elements of the federal crime of involuntary manslaughter constitute a subset of the elements of voluntary manslaughter. Both crimes are established in 18 U.S.C. Sec. 1112(a), which provides:

"(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

"Voluntary--Upon a sudden quarrel or heat of passion.

"Involuntary--In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death."

In contrast, the federal murder statute, 18 U.S.C. Sec. 1111(a), provides:

"(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

"Any other murder is murder in the second degree."

Unlike the homicide statutes in some modern penal codes that specifically define each element of the various degrees of criminal homicide, see, e.g., Tex.Penal Code Secs. 19.02-19.07 (1989); Model Penal Code Secs. 210.1-.4 (1985), the federal homicide statutes simply adopt the language of the traditional common-law offenses of murder and manslaughter. United States v. Shaw, 701 F.2d 367, 392 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984); see also 40 Am.Jur.2d Homicide Secs. 7 & 42 (1968); 40 C.J.S. Homicide Secs. 13 & 37 (1944). At both common law and in the federal statutes, the hierarchy of criminal homicide turns in large part on the ancient concept of "malice," a term of art the legal significance of which bears little if any relationship to the ordinary meaning of the word. See 2 W. LaFave & A. Scott, Substantive Criminal Law Secs. 7.1(a) & 7.9 (1986) (hereinafter LaFave & Scott); see also United States v. Chagra, 638 F.Supp. 1389, 1397-99 (W.D.Tex.), aff'd, 807 F.2d 398 (5th Cir.1986), cert. denied, 484 U.S. 832, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987).

Over the centuries, common-law "malice" in the homicide context has come to encompass at least three distinct mental states, any one of which constitutes sufficient culpability for murder. These mental states include: (1) intent to kill; (2) intent to do serious bodily injury; and (3) the existence of a "depraved heart," another term of art that refers to a level of extreme recklessness and wanton disregard for human life. ² LaFave & Scott, supra, Sec. 7.1, at 183. Each of these mental states constitutes malice under the federal murder statute as well. E.g., Chagra, 638 F.Supp. at 1401; see also Chagra, 807 F.2d at 402; United States v. Harrelson, 766 F.2d 186, 189 n. 5 (5th Cir.), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985); Shaw, 701 F.2d at 392 n. 20. Thus, second degree murder under the federal statute includes (1) the physical element of unlawfully causing the death of another, and (2) the mental element of malice, satisfied either by an intent to kill, an intent to cause serious bodily injury, or the existence of a depraved heart.

The common law did not originally distinguish between what are now the offenses of manslaughter and murder. E.g., LaFave & Scott, supra, Sec. 7.12, at 276-77. Eventually, however, the ancient courts separated the offenses, the distinction turning upon the presence or absence of malice. Id. at n. 1. The separate offense of voluntary...