Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge)
Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.
PER CURIAM: A jury convicted appellant of one count of second-degree murder while armed, and one count of possession of a firearm during a crime of violence, in violation of D.C. Code §§ 22-2403, -3202, -3204 (b) (1994). On appeal, appellant claims the trial court committed plain error in the manner in which it instructed the jury on second-degree murder, manslaughter, and self-defense and erroneously allowed the use of a prior consistent statement by the government to rehabilitate a witness. We affirm.
At trial, the government established that on June 24, 1990, Rhonda Camp went to Anthony Butler's house to get money to buy diapers for their baby. She was accompanied by her cousins, Katrina Jones and Crystal Green, and three other young persons. An argument ensued between Ms. Camp and Mr. Butler, the victim, which ended after Mr. Butler gave her the money she requested. Ms. Camp and her friends left, but approached Mr. Butler and his current girlfriend, Michelle Whiting, when they attempted to leave the apartment. Ms. Camp, Ms. Jones, Ms. Green, and another person began punching Ms. Whiting until Mr. Butler, his mother, and godmother broke up the melee. As Ms. Camp and her friends left, they threatened Mr. Butler, stating that "he'd get his."
Mr. Butler and Ms. Whiting went back inside the house and called a friend, Edward Glover, who came over with Mr. Butler's cousin, Damian Stokes. They then picked up two friends of Ms. Whiting, Flafeia Douglas and Angela Warren. All six went to look for Ms. Camp to resolve their disagreements. They found Ms. Camp and Katrina Jones in front of Crystal Green's house at 4303 3rd Street, S.E. As Mr. Butler and his five companions approached a group in front of Ms. Green's house, Ms. Whiting noticed appellant pull a gun from his waistband. Both Ms. Warren and Mr. Glover also saw appellant carrying a gun that night, and Ms. Douglas testified that she saw appellant pull a dark object from his waistband when Ms. Camp and Ms. Whiting were fighting.
Ms. Camp and Ms. Whiting resumed their altercation, and appellant restrained Ms. Jones, who wanted to assist Ms. Camp. The fight was interrupted by gunfire, and according to Mr. Glover, appellant fired the first shot in the air. Mr. Stokes then fired his gun at appellant and Ms. Jones. Mr. Glover heard Mr. Stokes' gun click, indicating that he had used all of the ammunition. Mr. Glover, Mr. Stokes, and the victim started to run up a hill. As they reached the top of the hill, Mr. Butler was shot in the head by appellant.
Both Ms. Whiting and Mr. Glover testified that they saw the appellant fire towards Mr. Butler, that Mr. Butler was not armed, and that Mr. Stokes was no longer firing at him when he shot the victim. *fn1
Appellant testified that, while he restrained Ms. Jones to prevent her from entering the brawl between Ms. Camp and Ms. Whiting, Mr. Butler stated "your friend ain't here so since your friend ain't here, you have to pay for it." He then saw Mr. Butler pull something from his waist and give it to Mr. Stokes, who placed it in his waist. Both appellant and Ms. Jones testified that Mr. Stokes fired the first shot at them. Appellant ducked behind a car, retrieved his gun which was in Ms. Jones' car, and fired a warning shot in the air. Appellant claimed that he fired four shots only after Mr. Stokes continued to shoot at him as he ran up the hill. *fn2 According to appellant, he did not know at the time of the shooting that Mr. Butler had been shot.
Appellant claims the trial court gave the jury conflicting instructions regarding imperfect self-defense and the mitigating circumstances that may reduce second-degree murder to manslaughter. Because appellant concedes he never objected to the instruction at trial, we will review this claim under a plain error standard, reversing only where "the error complained of so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc). *fn3
Among his instructions, the trial Judge directed the jury as follows:
If you find that the Government has proven beyond a reasonable doubt that the defendant's use of deadly force under the circumstances as they appeared to him at the time of the incident was not reasonable and that all the other elements of second degree murder while armed have been proven beyond a reasonable doubt, then it would be your duty to find the defendant guilty of second degree murder while armed.
Appellant claims that this instruction misstated the rule of imperfect self-defense, which lessens the degree of culpability from second-degree murder to manslaughter. See Comber v. United States, 584 A.2d 26, 41 (D.C. 1990) (en banc). Appellant argues that in the first part of the instruction, which refers to the defendant's use of unreasonable deadly force under the circumstances as they appeared to them, the trial court was referring to the mitigating circumstances that would reduce a charge of second-degree murder to manslaughter. Appellant contends that the trial court erred in instructing the jury that they could return a verdict of second-degree murder if the government proved that defendant's use of deadly force was unreasonable because it implied that imperfect self-defense will not mitigate second-degree murder to manslaughter. According to appellant, the trial court should have ...