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September 13, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Colleen Kollar-Kotelly, Trial Judge

Steadman and Schwelb, Associate Judges, and Belson, Senior Judge.*

The opinion of the court was delivered by: Belson

Appellant Hubert Guillard challenges his conviction for simple assault, D.C. Code § 22-504 (1989). His principal contention is that the trial Judge erroneously denied his request for a self-defense instruction. We agree, and remand for a new trial.

On June 6, 1988, a hot day, appellant Hubert Guillard, a chef at the Tiberio Restaurant, and two other Tiberio chefs, Rene Toxuant and Wygbert Kriel, were eating at a table in the restaurant kitchen when complainant Dennis Degiampietro, a sixty-three-year-old waiter at Tiberio, opened a kitchen door leading outside to get some fresh air. After Degiampietro opened the door, Toxuant told him several times to close it. Degiampietro, by his own admission, responded each time: "fuck you," but testified that he did not expect such language to give offense in light of the usual tenor of conversation in the kitchen. Then Toxuant got up, closed the door, and told Degiampietro to get out of the kitchen. As Degiampietro proceeded to leave the kitchen, Toxuant and Guillard began to follow him. Then, according to Degiampietro, Guillard overcame him and threw him to the ground without any provocation.

Guillard and his witnesses, however, painted a far different picture of what took place as Degiampietro proceeded to leave the kitchen. They testified that Degiampietro threw a trash can at Toxuant. Then Degiampietro began to throw plates. At that point, Guillard got up, approached Degiampietro, and told him to stop. Instead of stopping, Degiampietro threw a plate and then a tray at Guillard. With his arms lifted to protect his face, Guillard took a step forward; as he did so, Degiampietro took a step backward and fell. After the close of all the evidence, the trial Judge denied Guillard's request for a self-defense instruction stating:

I went through the testimony very carefully last night of all of the witnesses, because it should be -- if there's some evidence, no matter where it comes out -- so I went over the Government's witnesses and I went over your witnesses. There is nothing in here that indicates that there was any assault. There is, I think, an accident. I mean, your defense, as far as I can see, really is more in the nature -- that this was an accident that occurred to Mr. Degiampietro.

Summarizing her concern after pointing out again that the defense witnesses did not acknowledge that Guillard had ever struck the complaining witness, the trial Judge explained:

That's not enough. I mean, self defense is a situation where you have assaulted him in some way and your explanation for having done so is because you were defending yourself. There is no testimony here that did anything to .

It was clear that the trial Judge was satisfied that there was sufficient evidence from other sources that Guillard assaulted Degiampietro, for she allowed the case to go to the jury.

Guillard contends that the trial court improperly denied his request for a jury instruction on self-defense. Generally, "'a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.'" Reid v. United States, 581 A.2d 359, 367 (D.C. 1990) (quoting Adams v. United States, 558 A.2d 348, 349 (D.C. 1989) (quoting in turn Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988))). Thus, the trial court should give a self-defense jury instruction if there is an evidentiary basis in the record to support it. See id. A defendant's decision, however, to establish "different or even contradictory defenses" does not jeopardize "the availability of a self-defense jury instruction as long as self-defense is reasonably raised by the evidence." Id. *fn1

"In determining whether a defense instruction was properly denied, we review the evidence in the light most favorable to the defendant." Adams, supra, 558 A.2d at 349. Guillard maintained from the beginning of trial that one of his defense theories would be self-defense. Thus, the trial court allowed him to present evidence that Degiampietro had a reputation among his co-workers for violent and aggressive behavior and that Degiampietro had been the aggressor on the day of the assault. Several witnesses testified that during the incident Degiampietro had thrown a trash can and plates at Toxuant and also had thrown plates and a tray at Guillard. When Guillard took the stand and was asked whether he had assaulted Degiampietro, he replied (unresponsively), "I was the one who was assaulted."

The trial Judge had to determine whether the evidence was sufficient to raise issues as to whether (1) Guillard actually believed he was in imminent danger of bodily harm, and (2) he had reasonable grounds for that belief. Criminal Jury Instructions for the District of Columbia, No. 5.13 (3d ed. 1978). Although the trial Judge stated that she had reviewed her notes with respect to all the witness, she focused exclusively on the testimony of the defense witnesses in making the determination that there was no evidence of assault on Degiampietro. It was necessary to consider also the testimony of the government witnesses to determine whether there was any evidence that fairly raised the issue of self-defense. Harling v. United States, 387 A.2d 1101, 1103 n.1 (D.C. 1978) ("As to the self-defense claim, we simply note that an accused is entitled to a self-defense instruction if the evidence, either that of the defense or prosecution, fairly raises the issue." (emphasis added)); see also Reid, supra, 581 A.2d at 367 ("There was some basis in the evidence presented by the government that supported [the defendant's] claim to a self-defense instruction." (emphasis added)).

In this case, two government witnesses testified with respect to the alleged assault. Degiampietro testified that Guillard "assaulted me and he pushed me -- and he pushed me to the table of the dish washer. He knocked me down to the floor. . . . With all his strength. He came over to me like that and I fell down[.]" Another witness, Raul Revollo, testified that he clearly saw Guillard throw Degiampietro "real hard like against the dishwasher table. And the (sic) he fell down like a sack of potatoes."

Nevertheless, the government asserts that the trial Judge properly denied the self-defense instruction, arguing that the jury would have "to engage in 'bizarre reconstruction' of the evidence" to find that Guillard acted in self-defense. See Wood v. United States, 472 A.2d 408, 410 (D.C. 1984). We disagree. With respect to the events of the assault, the jury reasonably could credit the testimony of the government's eyewitness, along with the photographs of Degiampietro, to find that Guillard did assault Degiampietro. Second, the jury reasonably could credit Guillard and his witnesses with respect to the events that immediately preceded the alleged assault, i.e. that Degiampietro threw the trash can and threw plates and a tray at Guillard, to find that Degiampietro, not Guillard, was the initial aggressor. These facts alone ...

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