Zeledon v. US, No. 98-CF-427.

• Docket Nº: No. 98-CF-427.
• Citation: 770 A.2d 972
• Case Date: April 12, 2001
• Court: Court of Appeals of Columbia District

770 A.2d 972

Jose A. ZELEDON, Appellant,
v.
UNITED STATES, Appellee

No. 98-CF-427.

District of Columbia Court of Appeals.

Argued March 20, 2001.

Decided April 12, 2001.

770 A.2d 973

Thomas D. Engle, Washington, DC, with whom Sharon L. Burka, was on the brief, for appellant

Jacqueline Bussiere-Burke, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Linda Otani McKinney, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, FARRELL, and GLICKMAN, Associate Judges.

FARRELL, Associate Judge:

Appellant was found guilty by a jury of aggravated assault while armed (D.C.Code §§ 22-504.1, -3202) (1996) and assault with a dangerous weapon (id. § 22-502). In her charge to the jury, the trial judge did not define "serious bodily injury," which the government had to prove appellant caused in order to convict him of aggravated assault. After the trial in this case, we held that the trial court must instruct the jury on the definition of serious bodily injury adopted in Nixon v. United States, 730 A.2d 145 (D.C.1999). See Gathy v. United States, 754 A.2d 912, 914, 916 (D.C. 2000). The primary question on this appeal is whether the failure to define that element requires reversal of appellant's aggravated assault conviction, as it did the

770 A.2d 974

similar conviction of the appellant in Gathy. See id. at 916.¹ The government's main argument is that, unlike Gathy, appellant failed to preserve the claim of instructional error, and that under the appropriate "plain error" standard of review reversal is not warranted. Unpersuaded by that argument, and unable to agree with the government that the instructional error was harmless in any case, we reverse appellant's conviction for aggravated assault while armed. At the same time, we find no reason to reverse his conviction for assault with a dangerous weapon

I.

We reject at the outset appellant's contention that the evidence failed to support his aggravated assault conviction.² Viewed in the light most favorable to the government, the evidence permitted the jury reasonably to find that appellant had stabbed his wife repeatedly with a knife and caused her, among other things, arterial bleeding and a broken collarbone. Unlike in Nixon, supra, there was medical testimony that the bleeding was severe enough to have resulted in death if left untreated. Also, circumstantial evidence of the victim's condition (including her screaming) allowed the jury to conclude that she suffered extreme physical pain from the stabbings and broken collarbone. See Gathy, 754 A.2d at 918 ("[A] reasonable juror could infer from the nature of [the victim's] injuries, and from his reaction to them, that the pain was extreme"). Regarding the substantial risk of death, appellant points to the fact that the victim received timely treatment for her wounds, but we think it unlikely — in the extreme — that the legislature intended the "substantial risk" of death to depend on whether or not the victim was fortunate enough to receive medical care.

We therefore turn to appellant's claim that the failure to instruct on "serious bodily injury" requires reversal of that conviction.

A.

The government's main argument, as pointed out, is that appellant did not adequately object to the trial judge's failure to define the statutory phrase. The court has held that

[i]n order to preserve an issue of jury instructions for appeal, a party must state "distinctly the matter to which [he] objects and the grounds of the objection." Super. Ct.Crim. R. 30. In other words, objections to jury instructions must be specific enough to direct the judge's attention to the correct rule of law; a party's request for jury instructions must be made with sufficient precision to indicate distinctly the party's thesis.

Russell v. United States, 698 A.2d 1007, 1011 (D.C.1997). We examine the proceedings in light of this standard.

1.

The issue first arose during the discussion of jury instructions when the trial

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judge asked the parties their views on whether serious bodily injury should be defined to the jury. The prosecutor was "uncomfortable about trying to define it" and said, "I think it's a jury question." Appellant's counsel disagreed and asked that the element be defined to the jury in terms of "substantial risk of death," pointing to what she thought was support for that definition in the legislative history of the statute. The judge, however, viewed the legislature's intent as having been to adopt "the kind of standard language that has been around as a jury question for decades." When defense counsel renewed her request "for an instruction that says... a substantial risk of death," the judge disputed that definition — correctly, see note 2, supra — as underinclusive, but affirmed her intention not to define the concept at all because it "[has] been used many times in the District of Columbia [and] has been sent to the jury as a jury issue." Nonetheless, she left "open the possibility of defining it if and when [she] got a question [from the jury] seeking that it be defined."

Soon after the jury began deliberating, it in fact sent out a note asking: "Is there a legal definition or instruction concerning what constitutes serious bodily injury or is the jury to decide what qualifies as serious?" In keeping with her views stated earlier, the trial judge told the parties that "[t]here's no question ... I need to tell them that it is for the jury to decide what qualifies as serious." She was prepared to illustrate for them "what in various contexts [has] been described as serious bodily injury,"³ but would remind them that "in the end, it is for you to decide." Appellant's counsel disapproved of that course, stating, "I think that might confuse them" and that "our preference would be for the [c]ourt to simply tell the jury that they are the ones to decide." The judge yielded to the defense preference and, in response to the note, merely told the jury that "[b]ottom line, ladies and gentlemen, the jury is to decide what qualifies as serious."

2.

The government argues that appellant never "indicate[d] distinctly [his] thesis," Russell, 698 A.2d at 1011, that the court should define serious bodily injury and, indeed, "invited" the judge to forgo...