U.S. v. Taylor, 73--2275

• Decision Date: 04 August 1975
• Docket Number: No. 73--2275,73--2275
• Citation: 167 U.S.App.D.C. 62,510 F.2d 1283
• Parties: UNITED STATES of America v. James TAYLOR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1283

510 F.2d 1283

167 U.S.App.D.C. 62

UNITED STATES of America v. James TAYLOR, Appellant.

No. 73--2275.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 27, 1974.

Decided April 7, 1975.

Supplemental Opinion April 24, 1975.

Rehearing En Banc Denied Aug. 4, 1975.

See 516 F.2d 1243.

Martin D. Minsker, Washington, D.C. (appointed by this Court), for appellant.

David N. Addis, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry, James F. McMullin and Roger M. Adelman, Asst. U.S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and JUSTICE, ^* Opinion for the Court filed by Senior Circuit Judge FAHY.

United States District Judge for the Eastern District of Texas.

FAHY, Senior Circuit Judge:

On a two-count indictment for murder in the first degree (22 D.C.Code § 2401), and carrying a dangerous weapon (22 D.C.Code § 3204), appellant was convicted of second degree murder ¹ and the weapons charge. There are three questions he presses which warrant discussion: firstly, that the evidence was not sufficient to support a verdict of second degree murder; secondly, that the instruction on self-defense imposed upon appellant an erroneous obligation to retreat; thirdly, that the portion of the bifurcated trial devoted to the issue of mental responsibility should be set aside due to the circumstances and manner in which that issue was submitted to the jury. We do not find reversible error in the two respects directed to the 'guilt' phase of the trial. As to the third contention, however, we agree that the verdict rendered on the second phase of the bifurcated trial--devoted to the issue of mental responsibility--should be set aside and that phase of the case remanded.

I

We outline the factual situation sufficiently to give understanding to our decision that we find no reversible error in the conduct of the 'guilt' or first phase of the trial.

There was evidence to the following effect: near midnight on November 7, 1970, outside the United House of Prayer in this City, appellant became involved in an argument with one Eddy Black, also known as Eddy Wallace. The altercation began at the doorway leading from the church cafeteria to an outdoor patio. Mr. Black was seen physically assaulting his female companion, described at trial as Mr. Black's common-law wife, with some testimony she was appellant's grandmother, although this relationship was not clearly established. A friend of appellant, William Hainesworth, testified that appellant had drawn a gun. Hainesworth talked to him and appellant dropped the gun to his side. Mr. Black ran back into the cafeteria. At about this time a shot was fired in appellant's direction by someone across the cafeteria from where appellant and Hainesworth were standing. It came from the vicinity of a group of people, and the identity of the one who fired it was never established. Following the shot appellant ran after Mr. Black through the cafeteria into the church building, pursued in turn by William Barber, the deceased, who was a special police officer employed by the church. During the chase appellant had a gun in his hand and fired one shot at Mr. Black. Deceased's gun remained in its holster until just before the abrupt end of the brief pursuit. Mr. Black left the church through a street door, with appellant close behind and the deceased close behind appellant. The deceased came through the door as appellant, who had turned to face him, stood on the steps leading from the door. At a distance of about ten feet appellant fired at deceased 'point blank' according to a witness. After the first shot deceased cried out, 'I'm hit.' Appellant, according to the witness, fired two more shots. From evidence of gunpowder residue, one of these shots was fired approximately two inches from deceased's back. ² The first shot caused a wound in the abdomen which was mortal.

There was a bullet hole in appellant's shoe, and reliable testimony that it was caused by a bullet from deceased's gun; but at what point it was fired does not appear. An uninvolved eyewitness to Appellant was arrested near the church by a Metropolitan Police Officer. After his indictment on December 30, 1970, by order of the District Court of January 26, 1971, he was committed to St. Elizabeths Hospital for a sixty-day period to determine his competency to stand trial (24 D.C.Code, § 301(a)). On April 14 following he was found incompetent for that purpose after a report by the Medical Staff Conference at St. Elizabeths. There was ascribed to appellant by the report a mental disease diagnosed as 'Adjustment Reaction of Adult Life, With Psychotic Reaction (Ganser's Syndrome)'. Appellant remained at St. Elizabeths Hospital for nearly two years, until March 8, 1973, when the District Court was notified by the Hospital that appellant was then competent to stand trial. The trial now under review ensued.

the shooting, a friend of appellant, testified that appellant fired first, and that he did not see deceased fire at all. The only other disinterested witness to the shooting said deceased in running did not have his gun out but was trying to take it out, and when he was first shot he had not gotten it out.

II

, 1. We think the evidence was sufficient to support the verdict of second degree murder and of carrying a dangerous weapon, considered apart from the issue of mental responsibility. As to the offense of carrying a dangerous weapon there can be no dispute. As to the homicide, the testimony of the two uninvolved eyewitnesses, as well as that of another witness, makes clear that appellant was pursuing Black, armed with a handgun. The circumstances of record permit no rational conclusion other than that appellant was threatening Black with serious bodily injury, and, also, that appellant was aware of being followed by deceased. Upon running out an open door appellant turned and shot this uniformed officer, mortally wounding him. The evidence clearly did not require the jury to find it was in self-defense, or that any element of second degree murder was lacking, that is, that the homicide was without malice aforethought, or came within any of the exceptions enumerated in the definition of second degree murder. 22 D.C. Code § 2403. ³

2. Appellant contends there was imposed upon him an erroneous obligation to retreat by the following language of the court's instructions to the jury:

Before a person can avail himself of the plea of self defense, he must do everything in his power consistent with his safety to avoid the danger and avoid the necessity of taking life. If one has reason to believe that he will be attacked in a manner which threatens him with bodily injury, he must avoid the attack if it is possible to do so; and the right of self defense does not arise until he has done everything in his power to prevent its necessity. In other words, no necessity for killing an assailant can exist so long as there is a safe way open to escape the conflict.

This statement of the law had been approved by this court in United States v. Peterson, 157 U.S.App.D.C. 219, 483 F.2d 1222, 1231, cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244 (1973), upon the basis of the earlier decision in Laney v. United States, 54 U.S.App.D.C. 52, 294 F. 412 (1923). The Laney opinion, however, also contains the following qualification of the duty to retreat:

We are aware of the wide diversity of opinion as to the duty to retreat, but this difference arises from the circumstances of the particular case under consideration, rather than from any difference of conception as to the Nor is one required to retreat when he is assailed in a place where he has a right to be, unless by so doing an affray can be clearly avoided. He may stand upon his rights, and resist the attack to the extent apparently necessary to avoid death or great bodily harm. ⁴

rule itself. Time, place, and conditions may create a situation which would clearly justify a modification of the rule. For example, the common-law rule, which required the assailed to retreat to the wall, had its origin before the general introduction of firearms. If a person is threatened with death or great bodily harm by an assailant, armed with a modern rifle, in open space, away from safety, it would be ridiculous to require him to retreat. Indeed, to retreat would be to invite almost certain death.

54 U.S.App.D.C. at 58--9, 294 F. at 414--415.

We need not embark upon an extended discussion of the elements of self-defense in the varity of factual situations in which it may be claimed, or agree that the part of the Peterson opinion upon which the challenged instruction rests is altogether consistent internally, or states the duty to retreat in all circumstances. It is possible to read the instruction as somewhat ambiguous in requiring one who is threatened to 'do everything in his power consistent with his safety to avoid the danger' and at the same time obligating him to 'avoid the attack if it is possible to do so.' Such a reading, however, affords no help to appellant, as we now explain. Our court in Peterson, supra, in a respect important to the present case, also holds as follows:

The right of homicidal self-defense is granted only to those free from fault in the difficulty; it is denied to slayers who incite the fatal attack, encourage the fatal quarrel or otherwise promote the necessitous occasion for taking life. . . . In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation. Only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense. (Footnotes omitted.)

483 F.2d at 1231.

Appellant was in no better position than an aggressor. The deceased, in the uniform of an officer of the law, with his pistol in its holster, was following appellant ...