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February 7, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Tyrone Swanson appeals his conviction of second-degree murder while armed, D.C. Code §§ 22-2403, -3202 (1989 Repl.), two counts of assault with a dangerous weapon, id. § 22-502 (1989 Repl.), carrying a pistol without a license, id. § 22-3204 (1989 Repl.), and obstruction of Justice, id. § 22-722 (a)(1) (1989 Repl.), *fn1 on the ground of instructional error. He contends that the trial Judge improperly instructed the jury on (1) exculpating and mitigating factors with respect to second-degree murder and manslaughter, (2) malice, (3) self-defense, and (4) the state of mind for voluntary manslaughter. All except his last claim are meritless; as to the last claim we find no plain error. Accordingly, we affirm.


Appellant arrived in the Washington area from Cleveland, Ohio, in February 1987, along with Jeri Burton and two other women, to practice his trade as a pimp. On the evening of February 21, 1987, Burton began soliciting sex for money in Washington, D.C. At approximately 2:00 a.m. on February 22, 1987, Samuel Lee Evans asked Burton for a "date" and she eventually agreed to provide a few minutes for $50. As the couple started walking down the street, Burton secretly indicated to appellant that he should follow them. When Evans led her down an alley, Burton became scared. As she began to leave, Evans choked her and dragged her back into the alley. To defend herself, Burton tried stabbing Evans with a knife but Evans grabbed her hand and forced Burton to stab herself in the head.

In response to Burton's scream for help, appellant came into the alley, pulled out a gun, pointed it at Evans and jerked his hand in an apparent, unsuccessful attempt to shoot Evans. Evans ran out of the alley, with appellant chasing him. The men stopped in front of the Governor's House Holiday Inn on Rhode Island Avenue, where Evans yelled, "Get a police ; let me in; this man crazy."

Burton, catching up with the two men outside the Holiday Inn, told appellant not to kill Evans, just beat him up instead. When Burton turned to Evans and said "I will kill you before you kill us," appellant turned around and began hitting Evans with his fists. He then went down the street and returned with a wooden board and began beating Evans with it. At some point, appellant backed away from Evans and pulled a gun; Burton told appellant not to kill the man, and appellant ordered Burton to hide the gun in the bushes. Then appellant told Burton to retrieve the gun, put it in his pocket, and go back to the car. After Burton complied, appellant resumed beating Evans with the board. As Burton walked toward the car, she heard a gunshot.

A Holiday Inn security guard saw an "older man" swing a knife at a "younger man," in order to keep the younger man away at the time the older man was shot. *fn2 Then, just before he heard a gunshot, the guard heard the older man say "he got a gun, he got a gun ." A passer-by in a car testified that as the older man stood up, the younger man put his hand in his jacket, and after his hand came out the old man fell; the witness heard a gunshot at the time the older man fell. Furthermore, another security guard, at the Gramercy Hotel located directly across the street from the Holiday Inn, saw the younger man, after looking in both directions in an apparent attempt to determine whether anyone was watching, shoot the older man with a gun after first beating him with a board outside the Holiday Inn. In all, six witnesses saw an older man being beaten by a younger man with a board outside the Holiday Inn; five testified that the man being hit sought only to shield himself with his hands and never displayed any weapon or attacked the man who was beating him. *fn3

In his defense, appellant called one witness who testified about a previous incident in which Evans had forced her and her friend at knifepoint into an abandoned home and raped her while her friend stood by crying.


Appellant contends that the trial Judge made numerous errors in instructing the jury. His contention that the Judge failed to define "justification or excuse," "adequate provocation," and "heat of passion in response to adequate provocation" in instructing the jury on mitigating circumstances is raised for the first time on appeal, and we find no plain error. *fn4 Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc). Declining defense counsel's request to supplement the standard instructions on second-degree murder and voluntary manslaughter while armed with instructions about the government's burden of disproving self-defense and defense of another person, the trial Judge gave the standard instruction on murder in the second-degree, and thereafter gave the self-defense instruction separately from the substantive homicide instructions. *fn5 The trial Judge did not abuse his discretion in choosing this method of instruction, which was "within the range of permissible alternatives." *fn6 Bush v. United States, 516 A.2d 186, 195 (D.C. 1986) (quoting Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979)). Over the government's objection, the Judge instructed the jury on the defense theory of the case, self-defense and defense of another, in connection with second-degree murder while armed, manslaughter while armed, assault with a dangerous weapon and simple assault. *fn7 Hence, mitigating circumstances were not left undefined.

Likewise, appellant's contention that the Judge's instruction on "express or implied malice" constituted reversible error, because the instructions tended to confuse the jurors, thereby preventing them from "understand that malice rests, in part, on the presence of three different states of mind," is meritless. The Judge denied defense counsel's only request, that the Judge delete from the standard instruction on second-degree murder the sentence on express malice, on the ground that the jury might rely on the procuring offense as a predicate for inferring express malice. *fn8 On appeal, he maintains that the Judge failed to instruct clearly on the three states of mind required for malice. Hence, we review for plain error. Watts, supra, 361 A.2d at 709.

At common law, murder constituted an unjustified or unexcused homicide committed with "malice aforethought." Comber, supra note 4, 584 A.2d at 38. The court has recognized that "malice aforethought" is merely a technical phrase that "denotes four types of murder, each accompanied by distinct mental states." Id. (citing Byrd v. United States, 500 A.2d 1376, 1385 (D.C. 1985), adopted en banc, Byrd v. United States, 510 A.2d 1035, 1037 (D.C. 1986)). These four types of murder cover individuals who, in causing another's death, specifically intended to kill, intended to cause serious bodily harm, acted with a "wanton and willful disregard of an unreasonable human risk" (i.e., depraved heart murder), or killed during the intentional commission of a felony. Id. at 38-39.

Contrary to appellant's contentions, we conclude that the trial Judge did not abuse his discretion, see Bush, supra, 516 A.2d at 195, in part because the instructions to the jury described the three states of mind which might constitute malice. *fn9 The instruction clearly indicated that malice implies a state of mind which may include a specific intent to kill, an intent to commit serious bodily harm, or an intent to act in a manner "regardless of the life and safety of others" (depraved heart murder). While the en banc court has expressed, more than one year after appellant's trial, a preference for listing the three mental states instead of providing the standard redbook instruction, Comber, supra note 4, 584 A.2d at 42 n.18, the trial Judge had no sua sponte duty to adopt such a form of instruction in appellant's earlier-tried case. In view of the instructions given, we find no basis to conclude that plain error occurred. *fn10 The Judge conveyed the idea that malice can be mitigated by an unreasonable reaction to a fear of imminent danger or violence in his instructions on heat of passion caused by adequate provocation. ...

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