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03/30/95 CHARLES R. HOWARD v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


March 30, 1995

CHARLES R. HOWARD, JR., APPELLANT,
v.
UNITED STATES, APPELLEE. RONALD WILLIS, APPELLANT, V. UNITED STATES, APPELLEE.

(Hon. Peter H. Wolf, Trial Judge). Original Opinion of February 6, 1995,

Before Wagner, Chief Judge, and Ferren and Terry, Associate Judges.

ORDER

PER CURIAM: The court sua sponte further amends* its opinion of February 6, 1995 in the following respects:

1. The first sentence of the first full paragraph on page 13 of the slip opinion shall be amended at its beginning to read as follows:

"According to the standard criminal jury instructions, in order to convict a defendant of assault with intent to murder while armed (AWIMWA), the government must prove. . . ."

2. The third sentence of the first full paragraph on page 14 of the slip opinion, beginning at line 17, shall be amended to read as follows:

"Thus, where, as here, a defendant has introduced evidence of provocation, the government must prove its absence beyond a reasonable doubt in order to show malice and convict the defendant of AWIMWA. See Logan, 483 A.2d at 672-73 & n.11."

3. The first full paragraph on page 15 of the slip opinion shall be amended to read in its entirety as follows:

"If a jury finds that the third element of AWIMWA -- absence of mitigating circumstances *fn10 -- has not been proved beyond a reasonable doubt, the jury may not convict of assault with intent to murder while armed (AWIMWA); it may find guilt only of a lesser offense, such as assault with intent to kill while armed (AWIKWA) or assault with a dangerous weapon (ADW). See Redbook Nos. 4.07 (ADW), 4.03 & 4.09 (AWIKWA); United States v. Hobbs, 594 A.2d 66, 69 (D.C. 1991); Logan, 483 A.2d at 672-73 & n.11.10A "

4. The first sentence of the second full paragraph of page 15 of the slip opinion shall be amended to read as follows:

"It is important to note, moreover, that the evidence of provocation that will be adequate for mitigating the malice required for AWIMWA, and thereby reduce the degree of criminality, need not be enough to justify a self-defense instruction that would justify the killing altogether."

5. The last sentence of the carryover paragraph of page 24 of the slip opinion shall be amended to read as follows:

"Furthermore, even though the government's case against Howard was strong, the impact of the excluded provocation evidence might well have mitigated the jury's finding of malice, leading to conviction of a lesser offense, if not acquittal."

So ordered.


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