Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)
Before Rogers, Chief Judge, and Schwelb and Sullivan, Associate Judges. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge : Cowan was convicted by a jury of felony murder while armed, D.C. Code §§ 22-2401, -3202 (1989), second degree murder, id., *fn1 § 22-2403, carrying a pistol without a license (CPWOL), id. § 22-3204, and attempted distribution of cocaine, id., § 33-541 (a)(1) (1988). He seeks reversal of all of these convictions, primarily on the ground that the trial Judge refused to instruct the jury on self-defense and defense of a third person. Cowan never requested an instruction as to that defense with respect to second-degree murder, CPWOL, or attempted distribution; indeed, on this record, such an instruction has no conceivable application to the latter two offenses. Cowan did request the Judge to instruct the jury on self-defense and defense of another with respect to felony murder, but sought these instructions only if the Judge also instructed on aiding and abetting, as requested by the prosecution. The Judge never gave an aiding and abetting instruction, and the condition under which Cowan had requested the instructions on self-defense and defense of a third person never materialized. We conclude that the Judge's refusal to instruct on these defenses was not "plain error," and that even if the issue had been preserved, any error would have been harmless.
We note, sua sponte, that "when there is only one killing, the defendant may not be convicted of more than one murder." Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991). Accordingly, we must remand the case for resentencing, with directions that the trial court vacate one of Cowan's two murder convictions. In all other respects, we affirm.
In the early morning hours of November 20, 1986, in this city's macabre drug underworld, one young life was snuffed out, and two others were effectively ruined. James ("Wop") Cowan was then eighteen years of age. Sammie Giles, Cowan's codefendant, who later entered a plea of guilty to second-degree murder and became the prosecution's lead witness, was only sixteen.
Giles' account of the relevant events at Cowan's trial was a testament to the cheapness of life in the milieu in which he and Cowan moved; *fn2 the banality of the episode underlines its unremitting horror. Two teen-agers walked out into the streets of the city with cocaine to sell and a loaded pistol to guard their drugs and money. Their victim, a prospective buyer, was apparently shot dead because he argued with Giles and placed his hand in his pocket. Realistically, we are told, he who draws last in such an encounter may not survive.
According to Giles, he and Cowan were at Giles' apartment, watching the movie "Scarface" and packaging crack cocaine for sale. They left the apartment to market the crack in the courtyard of the complex. Giles carried the drugs; Cowan, who was there to provide protection, was armed with a loaded .38 caliber revolver. The decedent, Anthony Knox, approached Giles and asked for cocaine. A dispute apparently arose over the price (or possibly the quality) of the drugs. Knox reached in his pocket and said "give me everything." Giles testified that Cowan told him to "duck, soldier," and then shot Knox. *fn3 According to Giles, the two youths fled; Cowan then stuck a revolver in Giles' mouth and threatened to shoot Giles if he reported what had occurred.
There was additional testimony to support the prosecution's theory that Cowan, and not Giles, shot Knox. Sixteen-year-old Tina Duvall, Giles' cousin and Cowan's former girlfriend, testified that the two young men had left the apartment together, with Cowan carrying a revolver. Upon their return following the shooting, according to Ms. Duvall, Cowan said that he "shot the guy because he was getting ready to stick up one of soldiers." Lillian Holcomb testified that, although high on drugs, she had witnessed the shooting and that Cowan had shot the decedent after "the guy" put his hand in his pocket.
The defense presented no evidence, but vigorously attacked the credibility of the prosecution witnesses and attempted to show, through their testimony, that it was Giles, and not Cowan, who shot Knox. Giles was impeached with alleged discrepancies between his trial testimony and the accounts which he had provided to the grand jury and to the Judge who took his plea; he also acknowledged that he sometimes carried a handgun. *fn4 The murder weapon had been recovered under a mattress in Giles' apartment; according to Ms. Duvall, however, both Giles and Cowan stayed in the room where it was found.
Ms. Holcomb was impeached with her grand jury testimony that it was Giles who did the shooting and with other alleged inconsistencies in her accounts. Her credibility was also challenged on the basis of her drug use and her possible motivation to curry favor with the government in connection with pending drug charges. Ms. Duvall was also impeached with allegedly inconsistent prior statements; she, too, admitted that she used cocaine in November 1986 and that Sammie Giles sometimes supplied her with drugs.
At the Conclusion of the prosecution's case, defense counsel moved for a judgment of acquittal (MJOA). The defense argued, with respect to the murder charges, that Cowan had acted in self-defense. The Judge denied the motion as to all counts except first-degree murder. With respect to that charge, the Judge ruled that the prosecution had not proved premeditation. He granted the MJOA, but referred the lesser-included offense of second-degree murder to the jury.
Prior to closing argument, the court and counsel had extensive Discussions, which are described in detail in Part II of this opinion. With respect to the felony murder count, the Judge agreed to instruct the jury, as requested by the government, on aiding and abetting, essentially on the theory that if Cowan participated in the attempted distribution, he could he convicted of felony murder even if it was Giles who shot Knox. The Judge also agreed to the defense request that, if (but only if) an aiding and abetting instruction were given, the jury he instructed on self-defense and defense of a third person.
When counsel presented their closing argument, however, Cowan's attorney made no mention of self-defense or defense of a third person. Indeed, he focused entirely on the theory that Giles, not Cowan, was the shooter. After further Discussion, the Judge decided that he would not instruct the jury either with respect to aiding and abetting or with respect to self-defense or defense of a third person. Cowan was convicted on all four remaining counts. This appeal followed.
THE DEFENSE REQUEST FOR INSTRUCTIONS ON SELF-DEFENSE AND DEFENSE OF A THIRD PARTY
In order to determine whether Cowan has preserved for appeal the question whether the jury should have been instructed on self-defense or defense of a third person, it is necessary to set forth the context in which the issue arose and the respective strategies employed by counsel for both sides.
The prosecution's basic theory, as we have seen, was that Cowan shot Knox; Giles was viewed as an aider and abettor. Cowan's defense, on the other hand, was that Giles was the shooter, that Cowan was innocent, and that the prosecution had not proved that Cowan was even present on the scene. The government countered this defense with an alternative theory that, even if Giles was the person who shot Knox, Cowan was aiding and abetting Giles in the attempted distribution of cocaine, and was thus guilty of felony murder. Based on this alternative theory, which was applicable only to the felony murder count, the prosecutor requested the Judge to instruct the jury with respect to the law of aiding and abetting.
Cowan's attorney objected, not without reason, that the prosecution's alternative theory had not been presented to the grand jury and could not now be invoked at trial. Counsel also requested that if, but only if, the Judge instructed on aiding and abetting, that he also instruct the jury, with respect to the felony murder count, as to self-defense and defense of a third person. In the absence of an instruction on aiding and abetting, the defense wanted no instruction whatever on self-defense or defense of a third person.
There were obvious strategic reasons which dictated defense counsel's caution. Cowan's attorneys understandably apprehended that, if these defenses were emphasized, the jury might assume that Cowan was the shooter, and that this might dilute and detract from the basic defense theory that it was Sammie Giles who shot the decedent. Indeed, one of Cowan's attorneys candidly acknowledged her concern:
I think the problem with that is it makes the defense sound like we're telling you we didn't do it, but if you think we did it then we have another reason, and that sounds bad.
[Self defense] shouldn't be put as being our theory, because it, makes it look like we're trying to pull the wool over the jury's eyes.
To avoid this impression, the defense had to tread very cautiously. Counsel therefore made two important strategic decisions. First, the defense would seek the instructions on self-defense and defense of a third person only if the prosecutor's request for an aiding and abetting instruction was granted, and even then, only as to felony murder; this was because the prosecutor's aiding and abetting request was based on the theory that Giles did the shooting, and was thus potentially helpful to Cowan's basic defense. Second, Cowan's attorneys did not want the Judge to include self-defense or defense of a third person in his instruction on the defense theory of the case; rather, they wanted this issue to appear to emanate from the Judge, not from the defense.
B. Discussions Prior to Closing Argument
It was the government's secondary theory -- that Cowan was guilty of felony murder as an aider or abettor even if Giles did the shooting -- that triggered defense counsel's limited request for instructions on self-defense and defense of another:
THE COURT: Well, they are asking for self-defense.
MS. SUPLER [defense counsel]: Your Honor, that would only be if the court allows the government to argue and give the instruction of the aiding and abetting theory for a felony murder. If the court doesn't then no. Our theory is that we did not do the shooting, therefore, we're not guilty for that reason alone. And we wouldn't need the self-defense or a defense of other instruction. Because, remember, we are asking the Court not to couch it in that the defendant used self-defense, but if the shooter used self-defense. See, thats perfectly consistent with our theory. If the court doesn't allow the aiding and abetting argument by the government, then we don't need those instructions because our defense is that we weren't the shooter. It was Sammy Giles.
When the Judge expressed some bewilderment, Cowan's attorney explained that "if Mr. Giles shot in self-defense, and we can also be guilty because of his shooting, then we get the transferred self-defense intent." Counsel continued as follows;
James Cowan did not have a gun in his possession and did not participate in a drug transaction. And, then, if the -- and only if the court is going to allow the government the aiding and abetting theory on the felony murder, then we'll ask for the three instructions in the order I presented with the language I presented.
The trial Judge fully understood, and counsel for both parties agreed, that the government's request for an aiding and abetting instruction was limited to the felony murder count, and that the request for instructions on self-defense and defense of a third person were similarly limited (and also conditioned on the aiding and abetting instruction):
THE COURT: Second degree murder only if the jury finds beyond a reasonable doubt that it was ...