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05/12/92 ANGELA A. HARPER v. UNITED STATES

May 12, 1992

ANGELA A. HARPER, APPELLANT
v.
UNITED STATES, APPELLEE



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

Before Rogers, Chief Judge, and Schwelb, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM : In this appeal appellant Angela Harper raises the principal claim that the trial Judge erred by denying her request that the jury be instructed on self-defense. *fn1 We affirm.

I

Calvin Verrett went into a variety store to get change (he had only two $20 bills) for bus fare and was confronted and shot by appellant after he came out of the store to wait for a bus. Appellant, whom Mr. Verrett claimed never to have seen before, said "You're the one," and without hesitation shot him in the jaw, rendering him unconscious and causing permanent damage to his spinal cord.

An eyewitness, James Clanton, who was driving by, saw Mr. Verrett standing in front of the bus stop and watched a person in a dark coat approach him, draw a gun, and shoot Mr. Verrett in the face. Mr. Clanton saw no gun in Mr. Verrett's hand, and did not observe any struggle or physical contact between appellant and Mr. Verrett. Mr. Clanton described Mr. Verrett's hands as being at his sides prior to the shooting and as being open, as though he were saying something. According to Mr. Clanton, it wasn't "any kind of anger or any kind of violent situation . . . it seemed like this other person just walked right up to him and just shot him. There was no hesitation."

Michael Smith, a defense witness, who was standing at the bus stop, had seen a man in a red jacket pass by him, moving rapidly, coming from the direction of a paint store. He later heard a "commotion" from the variety store and described the encounter between appellant and Mr. Verrett as "weaker than fighting," "like scrapping." *fn2 According to Mr. Smith, appellant and the man were standing about three feet apart, and the man was using foul language. When appellant pushed the man away, "he came back toward her," "sort of like raising his hands" and when he "was right up on her," appellant shot him.

Appellant claimed that she had shot Mr. Verrett in self-defense. She testified that she had been robbed of the paint store's money (two twenties and a ten), as she was locking up the store, by a man who was wearing a red jacket and a pair of sweat pants and moving "like he was high or something." Appellant yelled at the man to give her back her money. She then went back into the paint store and called for her boyfriend, who was upstairs. She also reached over a counter in the store, grabbed a gun and put it in her pocket "to protect self in the event that [the robber] turned on and tried to hurt ." [Id.] Appellant then left the store, looked both ways on the street for the robber, and proceeded up the street in the direction she had seen the man run.

When appellant reached a variety store two doors away, she saw Mr. Verrett coming out of the store. Believing him to be the robber, she twice demanded that he return her money and he twice cursed at her ("Bitch, get out of my face"). Mr. Verrett then "started to raise his hands and come toward , so backed up." As she backed up she pulled the gun out of her pocket, closed her eyes and fired. *fn3 Appellant then opened her eyes, ran back to the paint store and called her father to tell him what had happened. *fn4

II

Appellant contends that the trial Judge erred by failing to instruct the jury on self defense on the grounds that appellant had used excessive force against "the robber," and that appellant's physical stature was greater than that of Mr. Verrett. We disagree.

The right of self-defense "is a law of necessity," arising "only when the necessity begins, and equally ends with the necessity; and never must the necessity be greater than when the force employed defensively is deadly." United States v. Peterson , 157 U.S. App. D.C. 219, 226, 483 F.2d 1222, 1229, cert. denied 414 U.S. 1007, 38 L. Ed. 2d 244, 94 S. Ct. 367 (1973) (footnotes omitted).

There must have been a threat, actual or apparent, of the use of deadly force against the defender. The threat must have been unlawful and immediate. The defender must have believed that he [or she] was in imminent peril of death or serious bodily harm, and that his [or her] response was necessary to save himself [or herself] therefrom. These beliefs must not only have been honestly entertained but also objectively reasonable in light of the surrounding circumstances. It is clear that no less than a concurrence of these elements will suffice.

Id. , 157 U.S. App. D.C. at 226-227, 483 F.2d at 1229-30 (footnotes omitted). See Scott v. United States , 536 A.2d 1040, 1050 (D.C. 1987), vacated on other grounds , 543 A.2d 346 (1988) and rev'd on other grounds , 559 A.2d 745 (1989) (quoting McPhaul v. United States , 452 A.2d 371, 373 (D.C. 1982)); Fersner v. United States , 482 A.2d 387, 391 (D.C. ...


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