Appeals from the Superior Court of the District of Columbia; (Hon. Evelyn E.C. Queen, Trial Judge)
Before Wagner, Chief Judge,* and Sullivan, Associate Judge, and Mack, Senior Judge. Opinion for the court by Associate Judge Sullivan. Opinion Concurring and Dissenting by Senior Judge Mack.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: On October 12, 1989, an indictment was filed jointly charging appellant, Sandra J. Jackson, with second-degree murder while armed (D.C. Code §§ 22-403, -302 (1989)) and assault with a deadly weapon ("ADW") (D.C. Code § 22-502 (1989)); and appellant, Kerry J. Jackson, with second-degree murder while armed. *fn1 A jury acquitted both appellants of the murder charge, but convicted Sandra Jackson of ADW and Kerry Jackson of assault with intent to kill while armed ("AWIKWA") (D.C. Code § 22-501 (1989)).
In this consolidated appeal, appellant Sandra Jackson, argues that the trial court erred in denying her motion for severance. Appellant Kerry Jackson argues that the trial court erred by (1) refusing to dismiss the indictment following the death of a defense witness known to the prosecution but not disclosed to the defense after a specific Brady *fn2 request, and (2) instructing the jury on the charge of AWIKWA, which was not a lesser-included offense of the original indictment charge of second-degree murder. *fn3 We affirm the conviction of Sandra Jackson. As to appellant Kerry Jackson, we do not dwell at length upon his claim that the government's failure to disclose Brady information required dismissal of the indictment in view of the remedy provided by the trial court. *fn4 We also reject his contention that his conviction must be reversed because the trial court erroneously instructed the jury on the charge of the assault with intent to kill while armed.
At trial, the government's evidence revealed that, in the early evening of August 12, 1989, the decedent Franklin Ball was standing in front of 1238 Wylie Street, N.E., "fussing" and "drinking." According to several witnesses, his "fussing" took the form of abusive and profane language directed at appellant Sandra Jackson, who was across the street on the porch of her home. After approximately an hour of this tirade, Mr. Ball crossed the street toward Ms. Jackson carrying a beer bottle. Ms. Jackson, in turn, came down from the porch, walked into the street and confronted Mr. Ball with a small knife in her hand. During the argument that ensued, Ms. Jackson cut Mr. Ball on the wrist with the knife and quickly retreated inside her house.
This altercation only intensified Mr. Ball's stream of invectives. Ms. Jackson soon returned to her porch with her husband, Mr. Joe Davis, and her son, Kerry Jackson, who was holding a knife estimated to be twelve to fourteen inches long. Moments later, the trio began to chase Mr. Ball through the 1200 block of Wylie Street. Kerry Jackson was carrying his long "shiny" knife, Sandra Jackson was carrying her small knife, and Joe Davis was carrying a handgun. In an attempt to escape, Mr. Ball weaved in and out of the parked cars, stumbling repeatedly. He was finally caught by his pursuers, now joined by Mr. Curtis Nero, after he fell in front of 1247 Wylie Street. There Mr. Nero held him from behind while Kerry Jackson stabbed him in the chest. When his attackers retreated, Mr. Ball, bleeding profusely, arose and stumbled into a nearby vacant lot. While Mr. Ball was lying unconscious, Kerry Jackson walked over to Mr. Ball and kicked him several times in the head in an apparent attempt to determine if he was alive or dead. Mr. Ball died shortly thereafter.
Sandra Jackson - Severance
Codefendants may be tried together "if they are alleged to have participated in the same act or transactions constituting an offense or offenses." D.C. Code § 23-311 (1991). By allowing the trial court "wide latitude in determining whether to grant or deny a motion for severance," King v. United States, 550 A.2d 348, 352 (D.C. 1988), we accord a "strong presumption" that "two defendants charged with jointly committing a criminal offense" will be jointly tried. Ingram v. United States, 592 A.2d 992, 996 (D.C.), cert. denied, 116 L. Ed. 2d 757, 112 S. Ct. 667 (1991). *fn5 This presumption may be rebutted where (1) there are "'irreconcilable defenses so that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty,'" Johnson v. United States, 398 A.2d 354, 368 (D.C. 1979) (quoting Rhone v. United States, 125 U.S. App. D.C. 47, 48, 365 F.2d 980, 981 (1966)), (2) one co-defendant is seeking to call a co-defendant as an exculpatory witness, id. at 367-68, or (3) where the evidence against one of the parties is de minimis. Russell v. United States, 586 A.2d 695, 698 (D.C. 1991). Not only do none of these exceptions apply here, but also considering the undisputed testimony that Ms. Jackson cut Mr. Ball on the wrist, coupled with the jury's acquitting each of the defendants of murder, we are unpersuaded by appellant's argument that her conviction of assault with a deadly weapon was a result of the jury being "inflamed by evidence of the cruel murder."
Kerry Jackson - Lesser-Included Offense
We reject appellant Kerry Jackson's argument that reversal is required because he was convicted of the offense of assault to kill while armed, an offense not charged in the indictment. While recognizing the basic right protected by the rule against permitting a defendant to be tried on charges not returned by the grand jury, see Stirone v. United States, 361 U.S. 212, 217, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), we are persuaded that no plain error occurred. See Robinson v. United States, 649 A.2d 584 (D.C. November 8, 1994); cf. Cash v. United States, 648 A.2d 964 (D.C. October 20, 1994) (per curiam) (reversible error where trial court erroneously instructed jury on misdemeanor offense of simple possession of controlled substance, instead of felony possession with intent to distribute controlled substance, and jury convicted defendant of felony offense).
A brief review of the facts will facilitate an understanding of the Conclusion reached. Appellant was indicted for second-degree murder while armed. He requested a "lesser included offense" instruction of simple assault on the theory that he had admitted to the police that he had a fist fight with the decedent earlier during the evening of the murder. Prior to closing argument, appellant's counsel accepted the court's proposal to instruct on assault with intent to kill while armed, acknowledging that she planned to argue appellant's case on that theory, inter alia. The jury found appellant not guilty of second-degree murder while armed, but returned a verdict of guilty of assault with intent to kill while armed. On appeal, appellant contends that reversal is required because assault with intent to kill is not a lesser-included offense of second-degree murder and because there was no evidentiary support for the instruction. These arguments must be rejected.
It is a principle of long standing in this jurisdiction that a conviction will not be reversed because of an improper jury instruction, not objected to at trial, unless the instruction to the jury rises to the level of "plain error." See Williams v. United States, 551 A.2d 1353, 1355 (D.C. 1989); Deneal v. United States, 551 A.2d 1312, 1316-17 (D.C. 1988); Green v. United States, 544 A.2d 714, 715 (D.C. 1988); Shivers v. United States, 533 A.2d 258, 261 (D.C. 1987); Allen v. United States, 495 A.2d 1145, 1151-54 (D.C. 1985) (en banc). If the decision not to object can be viewed as a tactical choice, it should not be considered plain error. Allen, supra, 495 A.2d at 1152 (citing Jones v. United States, 477 A.2d 231, 242 (D.C. 1984)); Bennett v. United States, 375 A.2d 499, 504 (D.C. 1977). An appellant is bound by the position taken by trial counsel and should not be allowed to reverse a position taken at trial "in order to disavow the implications that flow from ...