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07/10/90 AVA BROWN v. UNITED STATES

July 10, 1990

AVA BROWN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Peter H. Wolf, Trial Judge

Rogers, Chief Judge, Newman, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Newman

Ava Brown appeals her conviction for malicious destruction of property stemming from an incident in which Brown smashed the front windows and door of her mother's home in an effort to get inside and take possession of her runaway son, who was then staying at his grandmother's home. Brown charges that the court erred by (1) ruling that as a matter of law the grandmother's refusal to turn over Brown's son was inadequate provocation for Brown's act of destruction, and (2) refusing to permit Brown to introduce evidence of provocation -- specifically, that her mother had threatened on previous occasions to permanently remove Brown's son from her care by "institutionalizing" the boy. We reverse the conviction.

I

On Friday September 16, 1988, Lamar Brown, Ava Brown's twelve-year old son, ran away from home. His grandmother, Ava Brown's mother, Joylette Young, found him on a street on September 23 and took him home with her, where she called his father. His father and mother were separated. Young testified that she did not notify Brown that she had found Brown's son, because Brown had no telephone and the boy insisted that he did not wish to return to his mother's home.

Ava Brown searched unsuccessfully for her son for ten days. She contacted the police and the Youth Division and talked to friends and neighbors. On Monday September 26th, sometime after 8:00 p.m., she contacted a friend of Lamar's named Antoine and asked him if he knew Lamar's whereabouts. Antoine told Brown that Lamar had been picked up from an area playground by his grandmother, Ms. Young.

At about 9:40 that evening, Ava Brown, with her other son, Javan, in tow, appeared at the front door of her mother's home seeking her son. Ms. Young told Brown that she could not have the boy, because Brown had been physically and mentally abusing him and he did not want to return home with her. Brown insisted that she be allowed to come in and get the boy. Young refused. Brown picked up a wrought iron chair from the front porch and began smashing windows and the front door in an attempt to gain entry, destroying three windows, curtains, blinds, and the panes in a fifteen light door in the process.

According to Brown, Young broke some of the windows from the inside with a broomstick. According to Young, she had a nightstick and did not break any windows with it, but only wielded the stick in an effort to keep Brown out of the house.

Young called the police and then left the house via the basement with Lamar in an attempt to reach Young's car while Brown was occupied breaking through the front door. As the pair reached Young's car, they were observed by Lamar's younger brother, Javan, who called out to Lamar to come to him and his mother. Brown left the porch in an attempt to stop them, but was restrained by neighbors and held on the ground until the police arrived.

At trial, Brown conceded all elements of the charge except malice, arguing that she had been provoked by (1) her mother's earlier threats to institutionalize the boy to remove him from her care, and (2) her mother's refusal to allow her access to her son after a ten-day search for the boy.

Concerning the former point, Brown was prevented by the court from testifying about the alleged threats on grounds that, as a matter of law, Brown's motivations for trying to enter the house were irrelevant. However, during cross-examination of Young in the rebuttal portion of the trial, Brown's counsel was permitted to ask Young whether she had ever made any such threats or, more specifically, whether she had sent the police to Brown's home on one occasion "to institutionalize" Lamar. Young denied both charges.

Concerning the latter point, the court said to the jury:

You're instructed that as a matter of law it is not adequate provocation, justification, or excuse to damage or destroy property if somebody is not doing something that you think they should be doing, such as in this case, not turning over the defendant's son. As a matter of law, that is not ...


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