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12/21/90 GILBERT J. COMBER v. UNITED STATES

December 21, 1990

GILBERT J. COMBER, APPELLANT
v.
UNITED STATES, APPELLEE. EDWARD L. HAYWARD, APPELLANT V. UNITED STATES, APPELLEE



Hon. Nan R. Huhn, Trial Judge in No. 87-249; Hon. Robert M. Scott, Trial Judge in No. 89-31

En Banc. Rogers, Chief Judge, Newman, Ferren, Belson, Terry, Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Steadman

On Rehearing En Banc

In these consolidated appeals, we are faced with the immediate question of what jury instructions for the crime of manslaughter are appropriate where a person dies as a result of bare-fisted blows to the face. Like an unraveling string, this inquiry has led to and necessitated a more general examination of the law of manslaughter and particularly its division in our jurisdiction into "voluntary" and "involuntary" components. *fn1 In No. 87-249, Joseph Pinkney died after appellant Comber struck him either once or twice in the face with his bare fist. In No. 89-31, Geriel Butler died after appellant Hayward, in two incidents separated by five to twenty-five minutes, punched him twice in the face. Both men were indicted for second-degree murder in violation of D.C. Code § 22-2403 (1989) and were tried before juries. In each case, the jury acquitted the defendant of second-degree murder but returned a guilty verdict on the lesser-included charge of voluntary manslaughter. Id. § 22-2405. Both appellants challenge the voluntary manslaughter instructions upon which the juries based their verdicts. They also raise challenges pertaining to involuntary manslaughter instructions: appellant Hayward claims the trial court erred in refusing to give such an instruction, while appellant Comber claims the involuntary manslaughter instruction in his case was improper. Because we agree with these contentions of instructional error, we reverse and remand for new trials.

I. THE HOMICIDES

A. Appellant Comber

Gilbert Comber apparently did not approve of his sister Mary Comber's relationship with Joseph Pinkney. On February 3, 1986, Pinkney, Mary's former boyfriend, came to the Comber residence to visit her. When Ms. Comber attempted to leave the house to speak with Pinkney, appellant intervened and would not permit her to leave. Appellant and Ms. Comber began to struggle, and appellant hit her. After Pinkney saw this, he and appellant began to argue. However, the two men were separated, and Pinkney left the area before any further violence erupted. During the afternoon of February 4, Pinkney and Mary Comber arrived at the Comber residence after having spent the day together. The two had decided to get married, and had been drinking with friends. A friend of the Combers mistakenly told appellant that Pinkney and Ms. Comber had secretly been married. Saying he was going to get his sister, appellant went out to the alley where Ms. Comber and Mr. Pinkney had parked their car. Witnesses differed as to what happened next. All agreed, however, that Comber, who was substantially smaller by weight than Pinkney, punched Pinkney either once or twice in the face. Pinkney, who was extremely intoxicated at the time of death, fell down, and appellant returned to his house. Though Pinkney was still conscious after being knocked to the ground, he later lapsed into unconsciousness; by the time police arrived, he appeared to be dead. The medical examiner who performed an autopsy on Pinkney's body testified that the cause of death was one or more extremely forceful blows to the face which caused subarachnoid brain hemorrhaging, or bleeding in the part of the brain which controls the heartbeat and respiration. According to the medical examiner, there was no evidence that Pinkney's death resulted from his head striking the pavement when he fell. Appellant Comber testified that he struck Mr. Pinkney only once, and in self-defense. He stated that Pinkney took a swing at him when he tried to get his sister to return to the house with him, and that he never intended to kill Pinkney.

B. Appellant Hayward

In the early morning hours of November 27, 1987, appellant Hayward struck Geriel Butler in the jaw. Butler fell into the street, hit his head, and lost consciousness. He soon regained consciousness, stood up, and walked away. Witnesses disagreed about precisely what happened next, but they all agreed that appellant Hayward and Butler encountered one another again a short time later near a van from which a vendor sold clothes. Appellant Hayward again punched Butler in the jaw. As Butler fell to the ground, the back of his head struck the concrete. Butler lost consciousness and died later that morning at D.C. General Hospital. The medical examiner who performed an autopsy on Butler's body testified that the cause of death was swelling and herniation of the brain, caused by the impact to the back of Butler's head when he fell and hit the ground.

Appellant Hayward testified that he struck Butler in self-defense. He stated that Butler approached him and asked to purchase drugs. After being rebuffed, Butler hollered at appellant Hayward and approached him with his fist balled up. Thinking Butler was about to hit him, appellant Hayward struck Butler. Hayward stated that he then walked across the street to the clothes van, where a short time later Butler again approached, shaking his fist and seeking retribution for the earlier incident. Thinking that Butler would strike him, Hayward again hit Butler, who fell, hitting his head on the concrete.

II. THE INSTRUCTIONS

A. Appellant Comber

After extended Discussions, the trial court in Comber's case decided to instruct the jury on both the lesser-included offenses of voluntary manslaughter and involuntary manslaughter. As to each offense, the Judge modified the District's standard jury instructions. The court gave the following instructions on voluntary manslaughter:

Now, let me read to you the jury instructions on voluntary manslaughter.

Manslaughter is the unlawful killing of a human being without malice. Manslaughter is committed when a human being is killed unlawfully in the sudden heat of passion caused by adequate provocation as the Court has already defined those terms for you. The elements of this offense, each of which the Government must prove beyond a reasonable doubt are as follows:

One: That the defendant inflicted an injury or injuries upon the deceased from which the deceased died.

Two: That the killing was committed without legal justification or excuse.

And three: That the defendant intended to commit the acts which inflicted the injury or injuries.

To establish the first essential element it is necessary that the defendant have inflicted an injury or injuries upon the deceased and that the deceased died as a result of such injury or injuries.

To establish the second essential element of the offense it is necessary that you find the defendant guilty beyond a reasonable doubt, that the defendant did not act in self-defense.

And to establish the third essential element it is necessary that you find that the defendant intended to commit the act which inflicted the injury or injuries upon the deceased. *fn2

(Emphases added.)

On the crime of involuntary manslaughter, the trial court instructed the jury as follows:

Involuntary manslaughter is the unlawful killing of a human being without malice. It may be a killing committed without a specific intent to kill or even without the specific intent to inflict injury which causes death. One may be found guilty of involuntary manslaughter if you find that his conduct was so reckless that it involved extreme danger of death or serious bodily harm and was a gross deviation from the standard of conduct a reasonable person should have observed under the circumstances.

Now, the elements of this offense, each of which the Government must prove beyond a reasonable doubt, are as follows:

One: That the defendant inflicted an injury upon the deceased from which the deceased died.

Two: That the injury was a result of a course of conduct involving extreme danger of death or serious bodily injury.

Three: That although the conduct was not intentional it amounted to recklessness and was a gross deviation from the standard of conduct that a ...


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