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11/23/92 ROBERT W. BROWN v. UNITED STATES

November 23, 1992

ROBERT W. BROWN, JR., APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Noel Anketell Kramer, Trial Judge)

Before Ferren and Terry, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: A jury convicted appellant of voluntary manslaughter, D.C. Code §§ 22-2405, -3202, -105 (1989 Repl.), upon evidence that appellant aided and abetted his co-defendant *fn1 in shooting to death the victim in his auto on April 13, 1989, at approximately 3:30 a.m. We affirm.

The record reflects that on the evening of April 12, 1989, appellant rented a car and drove around the neighborhood into the early morning hours of April 13, 1989 with three other friends. While driving to 1340 Bryant Street, N.E., where appellant's aunt lived, they noticed another auto double-parked. The victim called out from this auto to a female passenger in appellant's auto.

At first, appellant and his companions could not identify the man who then proceeded to follow appellant's auto. Appellant suggested that his co-defendant enter his aunt's house to obtain a gun. One of the passengers in appellant's auto then informed the other three that he recognized the person (the victim) in the second auto. At this point appellant stopped and one of the passengers and the co-defendant alighted and approached the victim and questioned him as to why he was following appellant's auto. The passenger saw the victim reach into his glove compartment and place into his sweatshirt pocket an object which the passenger did not see but suspected was a gun.

Appellant and his codefendant, who had since returned to appellant's auto, began devising a plan in which the co-defendant would enter the home of appellant's aunt where appellant kept an Uzi pistol locked in a closet safe. Appellant would continue driving around the neighborhood and lure the victim into following. After appellant's co-defendant left the auto, appellant circled the block and then stopped his auto in front of 1340 Bryant Street, N.E. The victim in his auto pulled up approximately ten feet behind appellant's auto.

The co-defendant ran from the home of appellant's aunt up to the passenger side of the victim's auto and began shooting. The victim attempted to escape this gunfire by crawling out of the driver's side window. At this point, the co-defendant walked around to the driver's side door and continued shooting at the victim's head. The co-defendant then returned to appellant's auto, and they drove off, leaving the victim mortally wounded.

At the subsequent trial, appellant contends that the trial court committed reversible error in two respects: first, in refusing to allow appellant to raise the defense of self-defense, *fn2 and second, in declining to instruct the jury on the lesser-included offense of involuntary manslaughter. *fn3 We reject these contentions and affirm the conviction.

I.

"'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.'" Adams v. United States, 558 A.2d 348, 349 (D.C. 1989) (quoting Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988)). In determining whether a self-defense instruction was properly denied, the evidence must be reviewed in the light most favorable to the defendant. Reid v. United States, 581 A.2d 359, 367 (D.C. 1990) (citing Adams, supra, 558 A.2d at 349). Finally, the defendant must have honestly and reasonably believed that he was in imminent danger of death or serious bodily harm in light of the surrounding circumstances. United States v. Peterson, 157 U.S. App. D.C. 219, 227, 483 F.2d 1222, 1230, cert. denied, 414 U.S. 1007, 38 L. Ed. 2d 244, 94 S. Ct. 367 (1973); Graves v. United States, 554 A.2d 1145, 1147-48 (D.C. 1989). The jury is not required to engage in a "'bizarre reconstruction' of the evidence" to arrive at such a Conclusion. Adams, supra, 558 A.2d at 349 (quoting Wood v. United States, 472 A.2d 408, 410 (D.C. 1984)).

When a self-defense claim is raised, the trial Judge must first decide, as a matter of law, if the evidence in the record supports defendant's theory of self-defense. See Bowler v. United States, 480 A.2d 678, 682 n.8 (D.C. 1984). Accordingly, "the trial court in the best position from which to reflect upon the evidence and assess whether a fair inference of self-defense was raised." Id. Viewing the evidence presented at trial in the light most favorable to appellant, we conclude that the trial court properly determined that a reasonable juror could not conclude that appellant acted in self-defense.

In order to invoke a legitimate claim of self-defense, a defendant must satisfy the following conditions: (1) there was an actual or apparent threat; (2) the threat was unlawful and immediate; (3) the defendant honestly and reasonably believed that he was in imminent danger of death or serious bodily harm; and (4) the defendant's response was necessary to save himself from the danger. United States v. Peterson, supra, 157 U.S. App. D.C. at 226-27, 483 F.2d at 1229-30; McPhaul v. United States, 452 A.2d 371, 373 (D.C. 1982).

Appellant relies upon evidence that while he, the co-defendant and others were in his auto, the victim, in another auto, yelled out to one of their passengers and asked that she alight and come to him; that the victim wore the hood of his sweatshirt on his head so as to shield his features; that the victim thereafter drove his auto behind appellant's auto through the desolate streets at 3:00 in the early morning for a period of five to fifteen minutes for a number of blocks; that a passenger in appellant's auto saw the victim reach into his glove compartment and place into the front pouch of his sweatshirt an object which the passenger did not see but suspected was a gun; and finally, that the police later found a .25 caliber pistol in the victim's front pocket after his death.

The record in the instant case also reflects, however, that the victim made no threat, actual or apparent, prior to bang shot to death by the co-defendant -- aided and abetted by appellant. Appellant himself acknowledged in a recorded statement to the police that the victim never said anything threatening to either the appellant or to his codefendant. There was no evidence that appellant or any of the occupants in his auto actually saw the victim with a gun. At no time did the victim exit his auto or drive it so as to block the path of appellant's auto. The victim, at the time the ...


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