Appeal from the Superior Court of the District of Columbia (Hon. Brooke Hedge, Trial Judge) (Hon. Judith Retchin, Trial Judge)*fn1
Before: Wagner, Chief Judge, and Reid, Associate Judge, Steadman, Associate Judge, Retired.*fn2
The opinion of the court was delivered by: WAGNER,Chief Judge
Appellant, Erick Williams, was indicted on charges of first degree premeditated murder while armed (D.C. Code §§ 22-2401, -3202 (1996)),*fn3 possession of a firearm during a crime of violence or dangerous offense (D.C. Code § 22-3204 (b) (1996)) (PFCV),*fn4 carrying a pistol without a license (D.C. Code § 22-3204 (a) (1996)) (CPWL), unlawful possession of a pistol by a convicted felon (D.C. Code § 22-3202 (a) (3) (1996)), threatening to injure a person (D.C. Code § 22-2307 (1996)),*fn5 assault with intent to kill while armed (D.C. Code §§ 22-501, -3202 (1996)) (AWIKw/a),*fn6 possession of an unregistered firearm (D.C. Code §§ 6-2311, -2376 (1995)),*fn7 and unlawful possession of ammunition (D.C. Code §§ 6-2311, -2376 (1995)).*fn8 Following a jury trial, Williams was convicted of voluntary manslaughter while armed (a lesser-included offense of the original first-degree murder charge) in connection with the death of Leander Crowe, PFCV, CPWL and unlawful possession of a pistol by a convicted felon.*fn9 He argues for reversal on the grounds of: (1) instructional error in response to jury notes; (2) improper submission of the offenses of first-and second-degree murder to the jury; and (3) denial of his request to reopen his case to present newly discovered bias testimony. We find no error warranting reversal, and therefore affirm.
The charges arose out of the fatal shooting of Leander Crowe in the area of Georgia Avenue and Fairmont Street, N.W. in the District of Columbia on the night of February 16, 1999. According to evidence presented by the government, just before the shooting, Crowe, the ex-boyfriend of Michelle Anderson, spotted her on the street with appellant, her new male companion, and her brother, Charles Anderson. According to the evidence, Crowe got out of his car and approached them. Appellant asked Ms. Anderson who Crowe was, and she responded that he was her ex-boyfriend. Ms. Anderson crossed the street to speak with Crowe, who appeared to be angry, and Crowe began yelling and cursing at her. Appellant approached them, stood by Ms. Anderson, and then pushed Crowe in the chest and asked, "What's up?" Crowe pushed appellant back, and both men pulled up their shirts, each revealing a gun in his waistband. The men pushed each other again, and Crowe fell back. Both men drew their weapons, but appellant fired the first shot, missing Crowe. He shot again, this time striking Crowe in the left arm. Crowe continued to try to get his gun out of his waistband, but it fell to the ground, and he fell back on top of it. As Crowe tried to get his weapon, appellant went over to him, shot him several times in the chest, and said to Crowe, "you going to die." Charles Anderson called the police from a pay telephone. When appellant saw Anderson, he pointed the gun at him and asked, "you snitching?" Charles Anderson testified that he hid between the telephones and heard more shots before the police arrived.
Officer John Spencer testified that when he arrived at the scene, Crowe was lying on the ground and struggling to breathe. The officer testified that Crowe asked him to tell his mother that he was dying and that "Erick did it." The police found on the ground near Crowe a Glock 9mm gun, with a 16-bullet capacity, containing 12 bullets. Although there was evidence that the Glock had been fired, there was also testimony that it could not be determined when it had been fired. Ms. Ruthie Randall, who worked in a store at the intersection of Georgia Avenue and Fairmont Street and lived next door, testified that there were bullet holes in the store's window after the shooting that had not been there previously. There was also evidence that a car near the scene of the shooting had in it what appeared to be bullet holes.
Appellant testified that he was walking with Ms. Anderson and Charles Anderson when Crowe drove up to them and started pointing and making gestures. He said that he asked Ms. Anderson who Crowe was, and she replied that he was her ex-boyfriend. He testified that Ms. Anderson had told him previously that her ex-boyfriend beat her in the past and that he carried a gun. Appellant said that he thought that Crowe might try to assault Ms. Anderson. Ms. Anderson ran across the street to Crowe, but soon Crowe started walking toward appellant with his fists balled up, while cursing at Ms. Anderson. Appellant testified that as Ms. Anderson and Crowe argued, he "ran up behind [Crowe] and pushed him away from her." He described the immediate circumstances of the shooting as follows:
Crowe spinned around and pulled his gun and start [sic] firing at me. And I was backing up, but I clipped [sic] over the curb that was behind my foot and I fell. I pulled -- he start [sic] shooting at me, then I pulled the gun out and start shooting back. I was trying to get up. I was trying to get up and pushed myself up. I was firing back, and by the time I got up, he was still firing. By the time I got up, I ran.
According to appellant, Crowe, while down on one knee, shot at him about two or three times, and he shot at Crowe five times with a .357 revolver. Appellant said that he did not know at the time whether any of his shots hit Crowe, but he learned later that Crowe had been shot. He testified that he ran to his grandmother's house, and he heard more shots, but he did not know who fired them. Appellant's grandmother testified that appellant ran into the house that night crying and that he thought he had been shot, although he had not. Subsequently, appellant left the District. The defense called a police detective who testified that both Michelle and Charles Anderson told him that Crowe fired his weapon, but he did not hit appellant.
II. Challenges to Jury Instructions
Appellant argues that the trial court's instructions in response to two notes from the jury misstated the law and improperly shifted the burden of proof on self-defense. Specifically, appellant refers to the court's response to the jury's questions, sent during deliberations, concerning whether self-defense was considered a mitigating circumstance and the definitions of "specific intent" and "conscious disregard." He contends that the combined effect of the court's responses confused the jury, diluted the intent requirement for murder and manslaughter and shifted the burden of proof from the government to the defense. The government argues that the trial court did not plainly err in re-instructing the jury.
We consider preliminarily the government's claim that the plain error standard applies. "No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." Super. Ct. Crim. R. 30. Such objections "must be specific enough to direct the judges' attention to the correct rule of law; a party's request for jury instructions must be made with sufficient precision to indicate distinctly the party's thesis." Russell v. United States, 698 A.2d 1007, 1012 (D.C. 1997). The purpose of the rule is to allow the other side to respond and the trial court to correct the error and thereby avoid jettisoning the trial. Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991 (1992). When a party fails to raise a timely objection to an instruction, we will review that claim of error under the plain error standard. See Wilson v. United States, 785 A.2d 321, 326 (D.C. 2001). Appellant concedes that the plain error review is appropriate for his challenge to the "conscious disregard" portion of the instruction. However, he contends that he adequately preserved his objections to the trial court's re-instruction on specific intent and self-defense which he challenges in this appeal. We consider first whether appellant preserved these challenges.
First, appellant argues that he objected adequately to that portion of the court's definition of specific intent which stated, "specific intent means the defendant knew he was acting wrongfully or was disregarding the law when he fired the shots at Leander Crowe." The government contends that although defense counsel initially raised concerns about the definition of specific intent in relation to his self-defense claim, the issues he raised were addressed in the final instruction given, to which appellant did not object. The record supports the government's position. When the trial court proposed an instruction to respond to the jury's question, it explained that the old pattern jury instruction for intent (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (3d ed. 1978) (1978 Redbook)), was no longer suggested, and therefore, it had taken language from DiGiovanni v. United States, 580 A.2d 123, 126 (D.C. 1990) and United States v. Haldeman, 181 U.S. App. D.C. 254, 337, 559 F.2d 31, 114 n.226 (1976) (en banc).*fn10 The government expressed concern that the jury not be led to believe that the accused had to understand the elements of the statutory offense in order to be found guilty. Defense counsel stated that she was not familiar with these particular cases, but she understood the discussion.
Defense counsel stated that her concern with the court's proposed instruction was that by placing only at the end of the instruction, rather than after each concept given, reference to the government's burden to prove beyond a reasonable doubt that defendant did not act in self-defense, the jury might associate self-defense only with a part of the definitions included in the re-instruction.*fn11
The court and counsel discussed several alternatives for addressing this issue, and ultimately, defense counsel stated her preference for the formulation ultimately given by the court. The government objected on the grounds that explaining self-defense was not responsive to the jury's questions. Defense counsel, arguing in favor of the instruction, stated, ". . . it is just reminding [the jury] that self-defense is part of what they have to consider in terms of whether or not there was a specific intent to kill or injure . . . with conscious disregard." Defense counsel, apparently satisfied that all of her concerns had been addressed, made no objection to the instruction finally formulated before or after it was given. Thus, a review of all of the circumstances discloses no defense challenge to the final re-instruction related to any error in the specific intent instruction that is asserted on appeal. Therefore, our review of this issue must be for plain error. See United States v. Olano, 507 U.S. 725, 734 (1993).
Appellant also argues that he preserved the challenge to the trial court's belated addition to the self-defense instruction. He contends that: (1) his objection, without elaboration, was adequate under the circumstances; and (2) the basis for the objection was apparent. Specifically, he contends that after the court decided upon a response to the jury's note in light of lengthy discussions with counsel, the stand-in judge acceded to the prosecutor's last-minute request, as the jury was being called into the courtroom. It was then that the court added to the instruction the language challenged on appeal to the effect that "[i]f the defendant honestly and reasonably believes that he is acting in self-defense, self defense is a defense to both second-degree murder and voluntary manslaughter." (Emphasis added.) Under the circumstances, appellant contends, he could do no more than he did, i.e., stating that "without expanding further I will disagree and object to that." However, he contends that, in light of defense counsel's focus during the discussions the previous day, the objection he raised was necessarily related to his burden shifting argument.
"[O]bjections to jury instructions must be specific enough to direct the judge's attention to the correct rule of law; a party's request for jury instructions must be made with sufficient precision to indicate distinctly the party's thesis." Russell, supra, 698 A.2d at 1012 (citing Hasty v. United States, 669 A.2d 127, 134 (D.C. 1995)) (other citation omitted). Where no objection is made to an instruction, we review for plain error. Hasty, 669 A.2d at 134 (citing Foreman v. United States, 633 A.2d 792, 795 (D.C. 1993)). While it was apparent that the defense's general objection was to the additional language, he concedes that he did not specify the reasons for the objection. Appellant suggests that he was constrained not to explain further because the jury was entering the courtroom; however, this is not a case where the trial court precluded appellant from stating briefly the basis for his objection or from approaching the bench to explain it. Appellant made no request to do so. Therefore, this point of his argument for not specifying his thesis for the objection is not persuasive.
Appellant's second point, i.e., that the basis for the objection was apparent in light of prior discussions, is equally unpersuasive. He contends that the defense's focus the previous day about reiterating the government's burden of proof on self-defense should have alerted the judge that the objection to the additional language was related to the burden of proof. He claims that it is inconceivable that any argument could have been intended other than dilution or shifting of the burden to the defense. Aside from the fact that a stand-in judge had not been present during the discussions the previous day, the record does not support appellant's claim that this basis for his objection to the challenged portion of the instruction was apparent from the earlier discussions.*fn12 The previous day, among other issues, defense counsel focused upon reminding the jury, in connection with the definitions of specific intent and conscious disregard, that they also had to consider whether the government had proved that appellant did not act in self-defense. There was no separate discussion on "burden shifting." Appellant does not contend, nor could he on this record, that the discussion with the stand-in judge before the challenged portion was added shed any light on the argument he now makes on appeal. Therefore, the trial court had no opportunity to address the point and take corrective action. The requirement that a party alert the court to the basis for his objection in order to preserve it is intended to prevent this situation. See Perkins v. United States, 760 A.2d 604, 609 (D.C. 2000) (citing Hunter, supra, 606 A.2d at 144).
Having concluded that appellant's arguments concerning the trial court's re-instructions on specific intent and self-defense were not adequately preserved for review, and appellant, having conceded that his challenge to the court's re-instruction on conscious disregard was not preserved, we review each of these claims for plain error. Olano, supra, 507 U.S. at 734. This is a formidable hurdle. Under the "plain error" standard, appellant must show not only that the error was plain or obvious, but also that the error affected substantial rights and resulted in a clear miscarriage of justice. Id.; Wilson, supra, 785 A.2d at 326. Applying that standard, we review each of appellant's challenges to the jury instructions.
B. Jury Notes and Instructions
A clear understanding of appellant's arguments requires that we outline in some detail the relevant jury notes, the court's responses and the discussions concerning them, to the extent that we have not already done so. On the third day of deliberations, the jury sent a note to the court with the following questions: "What is the definition/clarification of specific intent? What is the definition of conscious disregard? Does specific intent go along with seriously injure/serious bodily injury[?]"*fn13
During discussions concerning the note between the court and counsel, defense counsel expressed particular concern that: (1) the concepts of conscious disregard and specific intent be set out separately; and (2) the government had to prove that he did not act in self-defense, which is within the law. The court suggested three options for incorporating self-defense into the instruction, and it gave ...