Appeal from the Superior Court of the District of Columbia. (F6860-96). (Hon. Susan R. Winfield, Trial Judge).
The opinion of the court was delivered by: Wagner, Chief Judge
Before WAGNER, Chief Judge, and TERRY and FARRELL, Associate Judges.
Appellant, Ozzie Jenkins, was found guilty by a jury of aggravated assault while armed (AAWA) (D.C. Code §§ 22-504.1, -3202 (1981)),*fn1 assault with a dangerous weapon (ADW) (D.C. Code § 22-502 (1981)),*fn2 and threatening to injure a person (D.C. Code § 22-2307 (1981)).*fn3 He argues for reversal on the grounds that: (1) the evidence was insufficient to support a finding of "serious bodily injury" required for a conviction of AAWA; (2) the trial court erred in failing to instruct the jury on serious bodily injury and impermissibly broadened the definition of the concept in response to a jury question about what the phrase meant; and (3) AAWA and ADW merge, thereby requiring his conviction for ADW to be vacated. With respect to the crime of aggravated assault while armed, we hold that the trial court, without the benefit of our subsequent decision in Nixon v. United States, 730 A.2d 145 (D.C.), cert. denied, 528 U.S. 899 (1999), defined the statutory element of "serious bodily injury" in a way that impermissibly expanded its meaning. Since we cannot say with fair assurance that this error did not influence the jury's verdict, we reverse and remand for a new trial on that charge. We reject appellant's argument that the evidence was insufficient to support a conviction of aggravated assault while armed even if the jury had been instructed properly. Finally, although the government concedes that aggravated assault while armed merges with ADW, in light of our disposition, the merger issue is moot for purposes of this appeal.
According to evidence presented by the government, on August 6, 1996, appellant stabbed Noble Whitehead while in front of a store called District Liquors on 11th Street, N.W. Mr. Whitehead accompanied a friend, "Jefferson," downtown to Freedom Plaza at about noon where they listened to music. Since Jefferson was confined to a wheelchair, Mr. Whitehead pushed Jefferson around during the outing. While at Freedom Plaza, Jefferson gave Mr. Whitehead money to purchase vodka for him and beer for himself. After listening to music for about an hour, the two men went to a park where Jefferson ate pizza and drank vodka. Before the men parted company, Jefferson gave the remainder of the pizza and vodka to Mr. Whitehead.
Mr. Whitehead then went to the liquor store on 11th Street to get more beer to have with the pizza. He asked someone named Les, who was in a wheelchair outside the store, to hold his pizza while he went inside. As he approached Les, Mr. Whitehead had noticed appellant standing near a tree about two feet away. The store's manager asked Mr. Whitehead to leave the store because he had an open bottle of vodka in his pocket. Mr. Whitehead went outside and left his vodka with Les while he went back into the store, but he soon returned when the manager refused to sell him more alcohol. Mr. Whitehead told Les that he was going to the store on the corner to get beer.
As Mr. Whitehead started walking toward the other store, he heard someone say "---, I'll kill you," and he thought that Les and appellant were arguing. When Mr. Whitehead turned around, appellant shoved him to the ground and stabbed him. Mr. Whitehead started screaming and grabbed appellant's hand. Appellant told Mr. Whitehead to let him go and he would let him get up. However, as Mr. Whitehead attempted to get up, appellant stabbed him in the arm. When someone yelled that the police had been called, appellant stopped the attack and ran across the street. Mr. Whitehead sustained stab wounds in the stomach, chest and arm as well as three other nicks during the attack. He testified that the bleeding was profuse and that blood was gushing from his arm. Although people told him to remain on the ground until the ambulance arrived, Mr. Whitehead said that fearing that he would die, he walked to the corner and propped himself on a mailbox. Mr. Whitehead was taken by ambulance to Howard University Hospital where he remained for treatment as an in-patient for five days. He displayed to the jury the wounds appellant inflicted to his abdomen, chest and arm and the other minor nicks.
On cross-examination, Mr. Whitehead admitted drinking some malt liquor at 8:30 a.m. and a 40 ounce bottle of beer around noon. He denied being drunk, angry or irritable or that he had smoked crack cocaine on August 6th. However, he admitted that he had used a "dime" of crack cocaine "probably the night before." In addition, he denied becoming angry or cursing or threatening Les for drinking all the liquor. Mr. Whitehead explained that he could not provide the exact time that he was stabbed because he had gone into "shock," but he estimated that it was between 1:00 and 3:00 p.m. When asked if he remembered what happened, Mr. Whitehead said, "[w]hen somebody almost takes your life you don't forget it."
Nathaniel Shaw, a thirteen-year-old boy, was near the corner of 11th and M Streets on August 6, 1996, around 2:00 p.m. Shaw testified that he was going to the basketball court on his bicycle and heard an argument across the street near the liquor store, where he saw two men and one person in a wheelchair, who was trying to break up the argument. Shaw testified that he saw Mr. Whitehead throw a punch at appellant, and he saw appellant fall. Shaw testified that when Mr. Whitehead approached appellant again, appellant pulled out a knife that appeared to be about seven or eight inches long and stabbed Mr. Whitehead about six or seven times in the side ("ribs") and on the arm. He said that Mr. Whitehead was trying to move away as appellant stabbed him, and appellant stabbed him again. According to Shaw, the person in the wheelchair backed away when appellant pulled out the knife, which clicked open automatically. Shaw watched appellant run up the street after the incident. Shaw said that Mr. Whitehead tried to get up, but he fell back down. Shaw testified that Mr. Whitehead had blood all over his shirt. When the police arrived, Shaw, who had seen appellant run up the street after the incident, informed the police that a bald, black man, wearing black clothes and white tennis shoes, was the assailant. Shaw got in the police car, and he identified appellant as the assailant after they located him.
Officer Timothy Palchak, a Metropolitan Police Department officer, was on patrol on August 6, 1996, and he went to 11th Street in response to a radio call at approximately 2:15 p.m. He testified that when he arrived, he saw Mr. Whitehead leaning on a mailbox suffering from an injury, which he believed to be stab wounds because of the nature of the radio call, the way Mr. Whitehead was positioned, and the amount of blood on Mr. Whitehead's shirt and on the ground. According to the officer, Mr. Whitehead appeared "disoriented" and in "a great deal of pain." Mr. Whitehead was about ten to fifteen feet away from where the altercation occurred when Officer Palchak observed him leaning on the mailbox. Officer Palchak corroborated that Shaw had described the assailant as a black male, bald and wearing all black clothing. Officer Palchak placed a lookout for the suspect over the police radio, and subsequently drove Shaw to the 1300 block of 10th Street, N.W. where the police had stopped appellant, and Shaw identified appellant as the assailant.
Officer Terrence L. Shirk, a reserve crime scene search officer, took photographs of appellant at the Third District cellblock, which were admitted into evidence. Officer Shirk testified that appellant appeared sweaty and that he had a red substance that appeared to be blood near the left side of his knee, the cuff of his pants and on his white tennis shoes.
Sterling Williams was a friend of appellant, and they "h[u]ng out" at the liquor store where Mr. Williams was employed. Mr. Williams testified that he had known appellant since 1995, and he knew Mr. Whitehead from around the neighborhood since 1996. Mr. Williams testified that he was present at the time of the incident involving appellant and Mr. Whitehead. He testified that they were drinking, but he and appellant were not drunk. He said that Mr. Whitehead was with Terrence Spiller at that time and was complaining that Les drank all the vodka, and he pushed Les' wheelchair. He said that Mr. Whitehead called Les names and tried to lift Les out of the chair to see if he had another bottle hidden. When appellant told Mr. Whitehead to leave Les alone, Mr. Whitehead attacked appellant, according to Mr. Williams. He testified that Mr. Whitehead told appellant "to get the hell out of his face" and that he was going to "f him up" if he got a chance. Appellant went around the chair and started tussling with Mr. Whitehead, and they ended up on the ground. Mr. Williams testified that he grabbed appellant and walked away and that he did not see a knife. Mr. ...