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Swann v. U.S.

October 11, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)

Before Steadman and Schwelb,* Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This case arises out of a basketball court dispute between appellant, Theodore Swann, and the decedent, Steven Crawford. Appellant testified that he thought Crawford was about to draw a gun on him, so he drew first and shot at Crawford, killing him. A self-defense instruction was given, but the trial court refused to instruct the jury on voluntary manslaughter under a theory of imperfect self defense. Appellant was convicted of first-degree premeditated murder.

The principal issue on appeal is whether appellant was entitled to a voluntary manslaughter instruction on a theory of imperfect self-defense. We hold that he was entitled to the requested instruction, but we further hold that the failure to give the requested instruction provides no ground for a new trial on the facts here where appellant was convicted of first-degree premeditated murder.


In early March of 1988, at about four in the afternoon, Crawford and two friends drove to a basketball court to shoot baskets. Appellant arrived soon thereafter, also accompanied by two friends. The two groups watched the basketball game already underway and shot baskets when the game was at the other end of the court.

There was conflicting testimony as to how the argument between Crawford and appellant originated and the progress of events thereafter. Appellant's version was as follows. Appellant was bouncing a ball which Crawford "tried to penetrate," causing the ball to hit appellant in the stomach, where he had recently been stabbed, and then to hit his foot. *fn1 Crawford told appellant to get off the court, and the two started to argue. *fn2 As appellant walked past Crawford, Crawford said, "You think you stabbed up now, just watch." *fn3 Then Crawford put his hands to his side and appeared to be reaching for his back pocket. *fn4 Appellant had seen a bulge in Crawford's pocket and thought that Crawford was retrieving a gun in order to kill him. Appellant then pulled a gun from his waistband and shot Crawford twice in the head. *fn5

Appellant asserted that he had a number of reasons for believing that Crawford was going to kill him: (1) appellant had a heightened sense of fear since the stabbing and thus carried the gun to the basketball court because he was afraid of retaliation from his previous attackers; (2) Crawford alluded to appellant's previous stabbing by saying, "you think you stabbed up now, just watch;" and (3) appellant had heard that Crawford had killed someone with a gun.


We turn to the issue whether the trial court erred in refusing to instruct on voluntary manslaughter under a theory of imperfect self-defense.


The standards for an acquittal on the ground of self-defense in a homicide case are exacting. First, the defendant must have an actual belief both that he or she is in imminent danger of serious bodily harm or death and in the need to use deadly force in order to save himself or herself. Second, in both cases, in addition to such an actual belief, the defendant's belief must be objectively reasonable. *fn6 Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (per curiam); United States v. Peterson, 157 U.S. App. D.C. 219, 226-27, 483 F.2d 1222, 1229-30, cert. denied, 414 U.S. 1007, 38 L. Ed. 2d 244, 94 S. Ct. 367 (1973); see CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, Nos. 5.12, 5.13 (4th ed. 1993). *fn7 A problem arises, however, where the jury may conclude from the evidence that the defendant's belief that he was in imminent danger and that he had to use deadly force to repel that danger was in fact actually and honestly held but was in one or both respects objectively unreasonable. It is in such circumstances that the issue arises whether a defendant is entitled to an instruction on the law of voluntary manslaughter under the so-called "imperfect self-defense" doctrine. That is appellant's claim here.

In Comber, supra note 6, the en banc court had occasion to explore at some length the basic concepts underlying the crime of voluntary manslaughter. "In all voluntary manslaughters, the perpetrator acts with a state of mind which, but for the presence of legally recognized mitigating circumstances, would constitute malice aforethought, as the phrase has been defined for purposes of second-degree murder." 584 A.2d at 37. On the other hand, a defendant is not guilty of any crime at all if he kills with "justification or excuse." *fn8 Id. at 40-41. In particular, as relevant here, "even an intentional killing, if it comports with legally accepted notions of self-defense, is not malicious; it is excused and accordingly no crime at all." Id. at 41 (citation omitted). "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." Id.

The question then becomes what are legally recognized mitigating circumstances that can justify a reduction from second-degree murder to voluntary manslaughter. The "mitigation principle is predicated on the legal system's recognition of the 'weaknesses' or 'infirmity' of human nature," and "legally recognized mitigating factors serve to extenuate or 'dampen[]' the otherwise malicious nature of the perpetrator's mental state." Id. at 41 (citing United States v. Bradford, 344 A.2d 208, 214-15 (D.C. 1975)). In Comber, we noted that "such mitigating circumstances most frequently arise 'where the killer has been provoked or is acting in the heat of passion.'" Id. at 41 (quoting Bradford, supra, 344 A.2d at 215). However, we noted, mitigating circumstances may also be found in other circumstances, such as "when excessive force is used in self-defense" and " killing is committed in the mistaken belief that one may be in mortal danger." Id. at 41 (quoting Logan v. United States, 483 A.2d 664, 671 (D.C. 1984)). Since a belief that is both actually held and objectively reasonable is a complete exoneration from a charge of homicide, it seems indisputable in light of the foregoing authorities that if so believed by the jury, a defendant's actual belief both in the presence of danger and the need to resort to force, even if one or both beliefs be objectively unreasonable, constitutes a legally sufficient mitigating factor to warrant a finding of voluntary manslaughter rather than second-degree murder. *fn9


The government does not take serious issue with the foregoing propositions in the abstract. It asserts, nonetheless, that appellant was not entitled to an instruction on imperfect self-defense manslaughter on the facts here. Its principal arguments invoke three distinct grounds. *fn10

First, the government argues that the claim of imperfect self-defense should be analyzed under the "adequate provocation" prong of voluntary manslaughter. It notes that in Comber, we said that a voluntary manslaughter instruction is justified "where the killer has been provoked or is acting in the heat of passion, with the latter including fear, resentment and terror, as well as rage and anger." Comber, supra note 6, 584 A.2d at 41 (quoting Bradford, supra, 344 A.2d at 215). ...

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