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April 10, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Trial Judge)

Before Terry, Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This appeal arises from the conviction of Bryan Bostick for second degree murder while armed under D.C. Code §§ 22-2403 and -3202 (1989). *fn1 Appellant argues, inter alia, that the trial court committed reversible error by refusing to include an instruction on provocation as part of the charge to the jury on the count of second degree murder. We agree.


Appellant was convicted in the slaying of Nathaniel Smith, known to his friends as Bubbles, a sixteen-year-old bystander at the scene of a violent encounter in front of the apartment building in which he lived. *fn2 At the start, a fight was looming between Shelton Troublefield and Ryan Phoenix, also known as Knuckles. It was apparently the continuation of an earlier fistfight. This time, the younger, smaller Knuckles had asked appellant Bostick to back him up, for protection. *fn3

During the confrontation, Vinnie ("Tony") McFadden, an older friend of Troublefield, came out of the building and told the pugilists to desist. At about the same time, Bostick interposed himself, encouraging Knuckles to knock Troublefield out, blocking the latter's path of retreat into the building. According to all the government eyewitnesses, Tony McFadden then grabbed Bostick by the neck, lifting him off the ground with one hand. At the same time, with his other hand, McFadden drew a .22 caliber gun and discharged one to three shots into the air. Bostick managed to free himself from McFadden's grip and fled a very short distance before turning and firing several shots back toward the doorway of the building, where McFadden was still standing. *fn4 McFadden testified that he continued to fire his weapon after Bostick had extricated himself. Appellant testified, after he got away from McFadden, "Like I say, I was running for my life. I just ain't want to get shot. . . . I'm running, I'm scared." According to forensics evidence, one .22 caliber shell, fired from a distance of at least eighteen inches, struck and killed Bubbles. *fn5


"'As a general proposition 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 (1988))). Moreover, in the Mathews decision, the Supreme Court made clear that the defendant's entitlement to such an instruction is not canceled or diminished by the claim of inconsistent, or even contradictory, defenses, even those inconsistent with the defendant's testimony. *fn6 We have followed this Mathews holding in several cases. Guillard v. United States, 596 A.2d 60, 62-64 (D.C. 1991); Reid v. United States, supra; Adams v. United States, supra; Gray v. United States, 549 A.2d 347, 349 n.2 (D.C. 1988). *fn7 To determine whether a defense instruction was properly denied, we review the evidence in the light most favorable to the defendant, but not so favorable as to have required the jury to engage in "bizarre reconstruction of the evidence." Adams, supra, 558 A.2d at 349; Wood v. United States, 472 A.2d 408, 410 (D.C. 1984).

In the instant case, sufficient evidence of provocation was presented, including testimony from the government's key witnesses, to support the requested defense instruction on mitigation of malice, *fn8 malice being an essential element of second degree murder to be proved by the government. *fn9 Comber v. United States, 584 A.2d 26, 41 (D.C. 1990) (en banc) ("The absence of justification, excuse, or mitigation is thus an essential component of malice, and in turn of second-degree murder, on which the government bears the ultimate burden of persuasion"); United States v. Alexander, 152 U.S. App. D.C. 371, 391, 471 F.2d 923, 943 ("It should be explained [to the jury] that provocation is not an element of manslaughter (whether voluntary or involuntary), but a defense to second degree murder" (emphasis in original)), cert. denied, 409 U.S. 1044 (1972). Put differently, although the absence of adequate provocation is not an element of second degree murder, its presence is a defense to that charge. However, the prosecution's obligation to disprove "mitigation arises only when there is some evidence of one or more of these circumstances in the case. . . . Accordingly, a jury need not be instructed on the issue[] of . . . mitigation unless either the government or defense case has generated some evidence of factor[]." Comber, supra, 584 A.2d at 41 n.17 (citations omitted); Brown v. United States, 584 A.2d 537, 543 (D.C. 1990) ("If there is sufficient evidence of provocation to go to the jury, the burden remains on the government to prove malice . . . and to prove the absence of adequate provocation beyond a reasonable doubt") Given the evidence of provocation here, the corresponding instruction should have been given and the government should have been required to disprove mitigation.

The standard jury instruction on provocation as a defense to second degree murder explains that the "'provocation' must be such as might naturally induce a reasonable person in the passion of the moment to lose self-control and commit the act on impulse and without reflection. A blow or other personal violence or imminent threat of violence may constitute adequate provocation." Criminal Jury Instructions for the District of Columbia, No. 4.23 (3d ed. 1978); see also Alexander v. United States, supra, 152 U.S. App. D.C. at 394-95, 471 F.2d at 946-47. While there is no list of "the specific categories of acceptable or unacceptable provocatory conduct," the caselaw assessing the sufficiency of provocation has considered a number of factors, for example, the means and severity of the provocation, the proportionality of the retaliation, and the timing of the retaliation. Brown, (supra) , 584 A.2d at 542; see, e.g., United States v. Wharton, 139 U.S. App. D.C. 293, 301, 433 F.2d 451, 458 (1970) (where appellant's universally controverted testimony was that victim had slugged him in the mouth before the retaliatory shooting, issue of adequate provocation was properly for the jury to decide); Kinard v. United States, 68 App. D.C. 250, 96 F.2d 522 (1938) (contradicted evidence that decedent wife pursued appellant with knife before killing sufficient to support adequate provocation and manslaughter instructions); Carter v. State, 505 A.2d 545 (Md. 1986) (evidence that victim drew knife on appellant during "altercation" and "tussle" sufficient to support adequate provocation instruction); Whitehead v. State, 262 A.2d 316, 319 (Md. 1970) ("There is adequate provocation when there is a mutual quarrel or combat . . . and in such situations the question of which one actually strikes the first blow is not controlling") (internal quotation marks and citation omitted); cf. West v. United States, 499 A.2d 860 (D.C. 1985) (as a matter of law, an unarmed victim's act of walking toward armed defendant while they exchanged words was not the sort of provocative act that would cause reasonable person to lose control and act without reflection); Jamison v. United States, 373 A.2d 594, 596 (D.C. 1977) (where defendant claimed he was provoked by victim's repeated robberies, but where defendant had ample time to reflect and "cool down," evidence insufficient for manslaughter instruction); Nicholson v. United States, 368 A.2d 561, 565 (D.C. 1977) (mere words or other "trivial or slight provocation entirely disproportionate to the violence of the retaliation, is not adequate provocation"); Hurt v. United States, 337 A.2d 215, 218 (D.C. 1975) (provocation inadequate to merit instruction where only possible provocation occurred forty-five minutes prior to shooting).

In the case before us, the testimony of government witnesses themselves confirms that McFadden's provocative conduct included physical battery of appellant and assaulting him with a deadly weapon. The escalation of violence was tragic, but not totally surprising. McFadden gripped appellant by the throat and lifted him off the ground, while discharging a gun close by. *fn10 This provocation went far beyond "mere words" to physical violence by McFadden against appellant's person, and appellant's response was nearly instantaneous once he pried himself loose and began to flee, fearing for his life, under possibly imagined direct fire. Viewing the facts in this light, a reasonable jury without resorting to "convolutions of logic" or "bizarre reconstruction," Adams, supra, 558 A.2d at 349, could find that the defendant reacted (in the language of the standard instruction) "in the passion of the moment . . . on impulse and without reflection" in response to McFadden's provocative conduct. Therefore, the instruction should have been given, and the jury should have been allowed to decide the issue of provocation. *fn11

The government also contended at trial, and argues on appeals, that when the defendant is charged with second degree murder an instruction on provocation may be given only if an instruction on the lesser-included offense of voluntary manslaughter is also given. Because in this case neither side requested the voluntary manslaughter instructions, the government argues, an instruction on provocation was rightly denied. However, the government has produced no authority in caselaw to support this proposition. *fn12 To the contrary, in this jurisdiction, it has been said that "the trial Judge should withhold charging on lesser included offense unless one of the parties requests its, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system by permitting counsel to decide on tactics." Walker v. United States, 135 U.S. App. D.C. 280, 283, 418 F.2d 1116, 1119 (1969). *fn13 Had the trial court given the proposed instruction on provocation, either side might properly have requested the instruction on manslaughter as a lesser included offense under second degree murder according to its own tactical plan. However, the absence of such a request is irrelevant in evaluating the appropriateness of including language on mitigation of malice in instructing the jury on an offense to which mitigation is a defense. Comber v. United States, supra. *fn14

Accordingly, the conviction of second-degree murder appealed from must be reversed and the case remanded ...

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