Appeal from the Superior Court of the District of Columbia (F-6664-01) (Hon. Rafael Diaz, Trial Judge).
Before Farrell and Glickman, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
Opinion for the court by Associate Judge FARRELL.
Dissenting opinion by Senior Judge KING at page 9.
A jury found appellant guilty of armed aggravated assault on Alejandro Ventura. D.C. Code §§ 22-404.1, -4502 (2001). The sole issue on appeal is whether the trial judge erroneously denied a defense request to instruct on self-defense. Although the evidence supporting the defense was admittedly slight, it was sufficient under our standards to justify the instruction. The failure to give the instruction was therefore error, and because the error denied the jury any guidance on the relevant legal principles, we must reverse and remand for a new trial.
On September 2, 2001, at about 11:30 p.m, appellant stabbed Alejandro Ventura multiple times in the abdominal area. Since appellant did not testify at trial, Ventura was*fn1 the only eyewitness to the stabbing who took the stand. He stated that he had spent the afternoon of September 2 watching television with his brother. Later that evening while walking home, he encountered appellant, whom he knew casually from the neighborhood. Appellant asked him to "[w]ait up . . . because [he was] going home also," and when Ventura replied that he was on his way to buy a beer, appellant asked Ventura to buy one for him too. Ventura agreed, and bought a 32-ounce "bull beer" for appellant and two 22-ounce Heinekens for himself. The two men stopped under a nearby tree to drink the beverages. At one point in their conversation, Ventura "innocently" asked appellant "whether he had the courage . . . [l]ike to stick a knife into someone else." Appellant answered, "Yes, why not?"
A few minutes later, as Ventura and appellant finished their beers, Ventura felt appellant "poke" him. Ventura said "bug off" but appellant continued to "poke" him. After appellant jabbed him three more times, Ventura noticed blood oozing from his torso. He attempted to follow appellant, who was running away, but after a block he realized that appellant was too far away to catch up with him. By this time Ventura was bleeding profusely. Realizing he was close to his apartment, he returned home and had his wife call an ambulance. He was taken to Howard University Hospital where he underwent major surgery, received forty stitches, and remained in the hospital for nine days. Ventura testified that he had no idea why appellant had stabbed him; he and appellant had not fought immediately before the stabbing, and they had never had a personality conflict. Interviewed by police detective Medina at the hospital, Ventura identified appellant by name and description as his assailant.
Appellant called two witnesses in his defense, his mother and Dr. Sanford Edberg, an expert in pathology. Ms. Hernandez testified that on the night of September 2 appellant returned to the home they shared at around midnight. His hair and back were covered with leaves and he had scratch marks on his throat that looked "as if somebody had . . . grabbed him." Ms. Hernandez described the scratch marks by a hand gesture which the court explained for the record as "indicating as if somebody was using both hands . . . in a choking fashion." Appellant's eyes were "really red," he "look[ed] nervous," and there was bleeding on his neck from the scratches. He also had a swelling on the right side of his head. Ms. Hernandez helped him to bed, and the next day she saw a bruise on his neck -- again "as if somebody had put their hands around his neck."
Dr. Edberg based his testimony upon review of Ventura's medical records from Howard University Hospital, information supporting the warrant for appellant's arrest, and the transcript of Ms. Hernandez' testimony at appellant's pretrial detention hearing. He had determined that Ventura was a "chronic user of alcohol," and offered the opinion that "many people under the influence of alcohol tend to become combative . . . for trivial reasons." The doctor further described the wounds Ventura had suffered, explaining that*fn2 there were four stab wounds to the abdominal area, three of them "superficial" in that they did not "penetrate into the underlying body cavity," and a fourth that "indeed did penetrate into the underlying peritoneal cavity" and, while not entering the stomach, severed the gastric artery and caused significant blood loss. Asked whether these wounds were "consistent with somebody stabbing from the ground up," he affirmed that "they would be consistent with someone underneath stabbing upwards. Yes, absolutely." Dr. Edberg also (and without objection) summarized Ms. Hernandez' description at the earlier hearing of appellant's appearance when he returned home, including the "series of scratches which completely encompassed the front of the neck from ear to ear in what appeared . . . to be a linear fashion," followed by bruising. Asked if he had an opinion as to "how those bruises could have been caused," he replied that "they could have been caused by somebody's hand pressing forcefully into that region."
Although "[t]he trial judge may properly refuse to give [a defendant's requested] instruction where no factual or legal basis for it exists, . . . the failure to give such an instruction where some evidence supports it is reversible error." Frost v. United States, 618 A.2d 653, 662-63 n.19 (D.C. 1992). The test for "some evidence" is "a minimal one," Shuler v. United States, 677 A.2d 1014, 1017 (D.C. 1996) (citation and internal quotation marks omitted): "[a] defendant is entitled to a jury instruction on a theory of the case that negates his guilt . . . if the instruction is supported by any evidence, however weak." Graves v. United States, 554 A.2d 1145, 1147 (D.C. 1989) (citations and internal quotation marks omitted). As we similarly stated in Wilson v. United States, 673 A.2d 670, 672-73 (D.C. 1996), "[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." "[I]n*fn3 reviewing the denial of a requested defense instruction, [this] court examines the evidence in the light most favorable to the defendant." Frost, 618 A.2d at 662-63 n.19.
More particularly, in order to invoke self-defense a defendant must be able to point to evidence satisfying ...