Appeal from the Superior Court of the District of Columbia (F9145-99) (Hon. Michael Rankin, Trial Judge)
Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges
The opinion of the court was delivered by: Wagner, Chief Judge
Appellant, Benjamin Alcindore, was indicted on five counts:
(1) assault with intent to kill while armed (AWIK/WA) (D.C. Code §§ 22-501 *fn1 , -3202 *fn2 ), (2) aggravated assault while armed (D.C. Code §§ 22-504.1 *fn3 , -3202), (3) mayhem while armed (D.C. Code §§ 22-506 *fn4 , -3202), (4) possession of a firearm during a crime of violence or dangerous offense (PFCV) (D.C. Code § 22-3204 (b)), and (5) carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a)). *fn5 A jury found him not guilty of AWIK/WA, but guilty of the lesser-included offense of assault with a dangerous weapon (ADW), and of the remaining charges. Alcindore argues for reversal on the grounds that the trial court erred in:
(1) declining to re-instruct the jury in response to a jury note; (2) accepting a verdict inconsistent with the jury instructions with respect to the elements of the charged offenses; (3) overruling objections to improper argument by the prosecutor; and (4) singling him out as a witness having a vital interest in the outcome of the trial. We hold that under the circumstances of this case, the trial court erred in declining to re-instruct, upon defense request, where a jury note submitted before the verdict was taken in open court, demonstrated jury confusion as to the claim of self-defense. Therefore, we reverse and remand for a new trial on all counts for which he was convicted, except for the CPWL count.
A. Evidence Presented by the Government
The charges arose out of events which occurred on the morning of December 22, 1999 on the campus of Georgetown University. The complaining witness, Kenneth Ames, Jr., who worked for the university, testified that he was driving to his parking space when he noticed a vehicle close behind his. Ames testified that the driver of that vehicle, later identified as Alcindore, flashed his lights, honked his horn and made gestures at him. According to Ames, he came to a crosswalk, and Alcindore started to go around him, but Ames pulled out, blocked him and stopped to allow a student to pass. Afterwards, Alcindore pulled around him, yelled and gave him the middle finger. Ames followed Alcindore, and Alcindore stopped his taxicab. Ames then went up to Alcindore's cab and said to him, "I don't know if you saw the student back there, but you know it's a good possibility that you could have hit that student." Alcindore asked, "who the hell are you?" During the ensuing argument, both men raised their voices and cursed at each other. Ames admonished Alcindore that the speed limit was fifteen miles an hour and that he could not drive like that on campus. Ames told Alcindore that he "could just write down [his] cab number and make sure [he] don't get on campus no more." Ames then noticed a "bunch of tags" clipped on Alcindore's visor, reached in to take them and told Alcindore that he could write the numbers down and call his cab company. Ames testified that Alcindore slapped his hand away, but he put it back, and the two continued their argument. Ames testified that he finally leaned into Alcindore's car and said "whatever . . . just please slow down." When Ames tried to move away from the car, he discovered that his "feet wouldn't move," and he lost his balance and fell. As he fell to the ground, he realized that he had been shot. Ames said that as Alcindore drove away, he moved out of the way to avoid being hit. Ames testified that he did not threaten Alcindore in any way and that he had nothing in his hand when he approached Alcindore's car.
Meg Gardner, an employee at a campus bookstore, testified that she observed Ames leave his car and go over to the window of the cab. She testified that Ames was not carrying anything, but he appeared to be upset. She said that she observed Ames' "arm go into the window, or go through the window of the cab . . . ." Both men's arms were going back and forth through the window for about a minute, according to Gardner. She heard gunshots, but she was uncertain of what it was until she saw Ames fall. Ms. Gardner testified that it did not appear to her that the cab driver was in danger of death or that the circumstances required the use of deadly force.
Amy Stevens testified that she was walking to a building on campus that morning when Ames stopped for her at the crosswalk. She heard tires spinning, but she could not tell whether they were coming from Ames' truck or from Alcindore's cab. She testified that she saw Ames get out of his car, and she heard him yelling about the speed limit being fifteen miles per hour and a stop being required at the stop sign. She then heard three or four gunshots.
Both Charles Grimes, Jr. and Stephen Lamm testified that they saw Ames on the ground after the shooting, and they saw nothing around Ames that looked like a weapon. Grimes further testified that he did not see any weapon in Ames' clothing nor did he see any of his co-workers remove any such item from the scene.
B. Evidence Presented by the Defense
Alcindore testified in his own behalf to the circumstances surrounding the shooting. He admitted shooting Ames, and explained that he did so because Ames jumped out of his vehicle, and attacked him "and he attacked a gun and that's why the gun went off and I guess he got shot." He testified that before the encounter, he was driving around campus looking for passengers. He denied making a gesture with his finger at Ames. He testified that Ames ran toward him with his hand in his pocket, pointing it, cursing and stating, "you want some of this." Alcindore described Ames as a "big, strong guy with big hands and kind of a big stomach and he was fuming. He was angry. I couldn't tell what was going on with him. It just looked like he was just crazy." Alcindore testified that Ames came to the car and said "you want to get killed, nigger" before jamming him with his left hand open on the right side of his mouth. He said that he "kicked back in the car to avoid that blow," and Ames hit him on the cheek bone with a closed fist. Alcindore testified that he "kicked back again and [Mr. Ames] went like this up side my head and grabbed me in the left hand in the throat and the right hand felt like - felt immediately the right hand clamping my neck and he started choking and squeezing ...