Appeal from the Superior Court of the District of Columbia; (Hon. Harriett R. Taylor, Trial Judge)
Before Ferren, Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: Appellant Michael Jackson shot and killed Darnell McKinney in a dispute over appellant's girlfriend. Appellant argued self-defense, asserting that McKinney had pulled a gun on him. Another defense witness testified that, if not a gun, McKinney had pulled out at least a "black object." Appellant was convicted of voluntary manslaughter while armed.
Appellant contends that the trial court committed reversible error by refusing to instruct the jury about the effect of "false appearances" on a self-defense claim. We conclude that although the instruction should have been given, the failure to do so did not constitute reversible error in the totality of the proceedings.
Appellant testified that on June 20, 1991, he was playing basketball near the pool where his girlfriend was swimming. When appellant went home, his mother asked him to go to the store. As appellant approached the store, McKinney, who was with Derrick Miller and Keith Lockett, stepped in front of the doorway. McKinney told appellant he had tried to talk to appellant's girlfriend at the pool, that she was a "nice looking girl," and that appellant did not deserve her. When appellant shrugged and tried to enter the store, McKinney stopped him by putting a hand on appellant's chest. Appellant tried to get past, but McKinney pushed him back, saying, "You think you better than me, don't you? . . . You have a nice girl and your family, you have a nice family and everything." When appellant again tried to pass, McKinney pushed him and tried to swing at appellant, who moved out of the way. Lockett then told McKinney, "You better do what you gotta do, do what you want." McKinney hit appellant two or three times, appellant struggled and McKinney ripped appellant's shirt. Lockett said, "He's too big." McKinney then pulled out of his waistband a gun which appellant described as a "black pistol, semi-automatic," like appellant's gun. Appellant thought that McKinney was going to kill him. He pulled his own gun and started firing "to save his life." After appellant shot McKinney he ran home, and at some point he threw away the gun. *fn1
David Cautlen, who was on his way to the store at the time of the shooting, corroborated appellant's testimony. He saw appellant trying to go into the store but being stopped by one of the three men outside the store. Appellant and one of the men began pushing each other and came to blows. Cautlen thought the three men were going to "bum rush" or attack appellant. Cautlen saw "the victim go into his shorts and start to pull something black out." The prosecutor asked Cautlen, "Well, it's true, though, that you never saw a gun in Darnell McKinney's hand that night?" Cautlen replied, "No, I seen a black object." When appellant pulled out a gun, Cautlen ran.
The appellant's proposed self-defense instructions included false appearances, with language substantially similar to Instruction 5.15 of the third edition of the Standardized Criminal Jury Instructions for the District of Columbia. *fn2 The government did not object to the false appearances instruction, but the trial court concluded that the instruction did not seem to be applicable. Appellant's counsel pointed out that Cautlen had testified about a "black object" and that if appellant believed that it was a gun, regardless of whether it was a gun or not, the instruction would be relevant. The court reasoned that because there was no evidence whether or not a gun was found by the decedent and no evidence that the object was later found not to be a gun, "there is no saying that appearances were or were not deceiving." The court decided that the instruction would "unnecessarily confuse the jury, because it simply doesn't apply here."
It is well settled that "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." Bostick v. United States, 605 A.2d 916, 917 (D.C. 1992) (quoting Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988)); Reid v. United States, 581 A.2d 359, 367 (D.C. 1990) (same); Adams v. United States, 558 A.2d 348, 349 (D.C. 1989) (same). This is true even if the defendant claims inconsistent or contradictory defenses. Mathews, supra, 485 U.S. at 64-66; Bostick, supra, 605 A.2d at 917; Guillard v. United States, 596 A.2d 60, 62 (D.C. 1991); Gray v. United States, 549 A.2d 347, 349 n.2 (D.C. 1988); Womack v. United States, 119 U.S. App. D.C. 40, 336 F.2d 959 (1964) (per curiam). In reviewing the denial of a requested defense instruction, the evidence must be viewed in the light most favorable to the defendant. Bostick, supra, 605 A.2d at 917; Adams, supra, 558 A.2d at 349. However, the instructions should not require the jury to engage in "bizarre reconstruction is of the evidence." Bostick, supra, 605 A.2d at 917 (quoting Adams, supra, 558 A.2d at 349; Wood v. United States, 472 A.2d 408, 410 (D.C. 1984)).
In light of these principles, we cannot agree with the trial court's view that no evidence was presented in this case to warrant a defense instruction on false appearances. As defense counsel correctly pointed out at trial, Cautlen's testimony that he saw McKinney pull out a black object that Cautlen could not positively identify as a gun but only as a "black object" was sufficient to satisfy the defense's evidentiary burden for an instruction on false appearances. It was not necessary in addition to this testimony for appellant to present further evidence tending to prove that the object was not in fact a gun. *fn3
Appellee argues that, as in Sloan v. United States, 527 A.2d 1277 (D.C. 1987) (per curiam), the false appearances instruction would be redundant because of the lack of "conflicting evidence of danger to the defendant." 527 A.2d at 1282. In Sloan, the evidence presented only two points of view, Sloan's claim that James yelled obscenities and "started after" Sloan so that Sloan needed to defend himself, id. at 1281, and the prosecution's view that James was standing outside Sloan's building when Sloan approached, called James obscene names and threw lye at his face, id. at 1280. No "false appearances" evidence was presented that James had acted in a manner which Sloan had misinterpreted. However, the facts of this case, viewed in the light most favorable to the appellant, present just such evidence, namely that McKinney pulled out an object which may not have been a gun but which appellant could have reasonably believed was a gun. In these circumstances, the trial court was mistaken in concluding that the instruction was not applicable in light of the evidence as presented and erred in not giving it as requested.
We do not think, however, that this misapprehension by the trial court constituted reversible error. In making this determination, we are guided by the standard set forth in a prior case also involving the assertion that the trial court refused to give a specific portion of the defendant's self-defense instruction, namely the instruction on the permissible use of non-deadly force to defend oneself, which was supported by the evidence. "We must determine, viewing the instructions and evidence as a whole, whether it can be said 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.'" McPhaul v. United States, 452 A.2d 371, 374 (D.C. 1982) (quoting Alexander v. United States, 135 U.S. App. D.C. 367, 371, 418 F.2d 1203, 1207 (1969) (quoting in turn Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946))). Here, as there, the false appearances instruction is not a separate defense theory altogether, but rather simply an elaboration on the principle embodied in the basic ...