Appeals from the Superior Court of the District of Columbia. (F9713-94). (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, GLICKMAN and WASHINGTON, Associate Judges.
Appellant Cornell A. Rorie was indicted on a charge of second-degree murder while armed (knife), in violation of D.C. Code § 22-2403, -3202 (1996),*fn1 but was convicted by a jury of the lesser-included offense of voluntary manslaughter while armed. He contends primarily that the trial court committed reversible error by giving the jury a "first aggressor" or provocation charge, because "[n]o evidence showed that Mr. Rorie either verbally or physically provoked [the decedent] in the moments before the [fatal] incident."
We hold that in giving the challenged instruction to the jury the trial court committed error, and that error was not harmless. Consequently, we reverse the trial court's judgment and remand the case for a new trial.
The evidence presented by the government shows that Renee Lewis, leased a one-bedroom apartment in the 700 block of Brandywine Street, in the Southeast quadrant of the District of Columbia, in early August 1994; Rafael Solice,*fn2 her boyfriend, moved into the apartment with her. Sometime around mid-August 1994, Ms. Lewis' girlfriend, Terry Price and Ms. Price's boyfriend, Mr. Rorie, rented the living room of Ms. Lewis' apartment. In addition, Ms. Price and Mr. Rorie used a large walk-in closet for their possessions.
A morning stabbing at the apartment on October 2, 1994, led to the prosecution of Mr. Rorie. At his trial, government witnesses Lewis and Price, and defense witness Rorie recounted the events of that morning. According to Ms. Lewis' testimony, during the early morning hours of October 2, 1994, just as she and Mr. Solice were preparing to go to sleep around 3 a.m., Ms. Price called Mr. Solice. Ms. Lewis responded to Ms. Price's call and upon entering the living room observed Ms. Price and Mr. Rorie "arguing." Ms. Price wanted Mr. Rorie to leave the apartment and Mr. Solice "to take her somewhere." Mr. Rorie "went into the closet and . . . started taking out some of his clothes and stuff and he . . . told [Ms. Price] that she was going with him also, that if he had to leave she was leaving too." Ms. Price "said something smart or something to him," so Mr. Rorie "grabbed her . . . throat" and began to choke her. Ms. Lewis "hollered" at Ms. Price and Mr. Rorie to stop their confrontation. Upon hearing the hollering, Mr. Solice emerged from the bedroom.
Mr. Solice "started arguing and telling [Mr. Rorie and Ms. Price] he's getting tired of this sh-t and he's not going to have it [in the apartment]." Mr. Solice told Mr. Rorie "to leave . . . and [Mr. Rorie] was trying to explain to him what was going on." Mr. Solice "kept telling [Mr. Rorie] he didn't want to hear it. So [Mr. Solice] got mad and reached over in the corner and grabbed the [baseball] bat." Mr. Solice and Mr. Rorie exchanged words. Mr. Solice "started swinging the bat" and Mr. Rorie "backed up." Ms. Lewis was just behind Mr. Rorie. Mr. Solice "kept swinging the bat" and Ms. Lewis told him "to stop." Mr. Solice continued to say, "he's getting tired of this, he's not going to have it . . . ." He told Mr. Rorie and Ms. Price "to get out. . . ." Mr. Solice "was getting ready to swing" the bat again when Mr. Rorie "pulled a knife out of his pocket." Mr. Solice "hit the glass table." Ms. Lewis replied, "no," when asked whether Mr. Rorie "at that time . . . ma[d]e any motion at all with the knife."
Mr. Solice instructed Ms. Lewis "to call the police." As she turned to leave to call the police, Ms. Lewis "hit [her] head on . . . the door going out." She "ran . . . to the apartment downstairs" but no one responded to her "banging on the door." When Ms. Lewis "felt like something was dripping," she put her hand to her head and discovered blood. At that point, she started back upstairs. Mr. Rorie "was in the hallway" and inquired "what was wrong" when he saw "the blood dripping from [her] head." The two proceeded back to the apartment, and Mr. Rorie called Mr. Solice "to tell [him] that [Ms. Lewis] was bleeding." Mr. Solice responded, "man, I told you don't knock on my door, leave me alone. I ain't going to tell you no more." Mr. Rorie tried to explain that Ms. Lewis was bleeding. Eventually both Ms. Price and Mr. Solice went to the bedroom to check on Ms. Lewis. Mr. Solice accused Mr. Rorie of cutting Ms. Lewis. Ms. Lewis pointed out that she hit her head on the door.
Later, Ms. Price and Mr. Solice left the apartment "to get some money so they [could] get high, so maybe everything will calm down." Around 5:30 or 5:45 a.m., Ms. Price and Mr. Solice returned to the apartment. Mr. Solice had a rock which "he shared with [Ms. Lewis]" in their bedroom. Mr. Rorie continued to rest in the living room, with Ms. Price. Soon, Ms. Price called Mr. Solice. "She said that [Mr. Rorie] was messing with her again." Mr. Solice left the bedroom, followed by Ms. Lewis. Ms. Lewis "heard [Mr. Solice] and [Mr. Rorie] . . . passing words," but "didn't hear exactly what [Mr. Solice and Mr. Rorie were] saying at the time." Both men went outside, followed by Ms. Lewis. Mr. Rorie said to Mr. Solice, "come on, man, what you going to do, I'm outside now." Ms. Lewis told Mr. Rorie, "leave it alone . . ., just leave it alone. Come on back in here."
Mr. Rorie and Ms. Lewis proceeded back to the apartment. Ms. Lewis and Ms. Price went into the Lewis/Solice bedroom. Mr. Rorie, who was in the living room, "kept telling [Ms. Price] that he wanted to talk with her." Ms. Lewis informed Mr. Rorie that Mr. Solice did not want him in his bedroom. Mr. Rorie persisted in saying he wanted to talk with Ms. Price. Ms. Price "kept saying she didn't want to talk to him and [Ms. Lewis] kept saying why don't you go ahead and talk to him, so we can try . . . [to] . . . get this stuff over with. . . ." Ms. Price finally went to the living room around 6:30 or 7:00 a.m., on October 2, 1994.
After Ms. Price left the Lewis/Solice bedroom, Ms. Lewis "dozed off" but suddenly heard Ms. Price call her. She got up to respond to Ms. Price's call, and Ms. Price asked her to get Mr. Solice because Mr. Rorie "is trying to kill my baby . . . ." When Ms. Lewis entered the living room, she saw Mr. Rorie "leaning over the top of [Ms. Price] with the knife. She was in the bed" and "on her back." Ms. Price said, "please go get [Mr. Solice]." Ms. Lewis "went out in the hall and . . . waited." When she returned to the apartment after "about five minutes," Mr. Rorie was no longer on the living room bed and was dressed; Ms. Price still was in bed in her night clothes. As Ms. Lewis "was on her way toward [her] bedroom," Mr. Solice entered the apartment.
Mr. Rorie "asked [Mr. Solice] was he still going to take him home. [Mr. Solice] said I ain't taking you a damn place, you get there the best way you know how." In response to Mr. Solice's instruction to Ms. Lewis, she left the apartment "to go call the police." Mr. Rorie "was still in the living room and [Mr. Solice] was heading toward the bedroom." Ms. Lewis finally found a telephone on the street and placed a call to the police. As she was returning to her apartment, she saw "a police car pulling up" and ran toward it. Ms. Price was outside the apartment building. Although she was instructed not to enter the apartment, Ms. Lewis peered in and could see Mr. Solice "not moving or saying anything." He had been stabbed by Mr. Rorie.
Unlike Ms. Lewis who was not in the apartment when Mr. Solice was stabbed, Ms. Price, another government witness, was there but did not actually see the stabbing. Ms. Price did not remember specific dates and essentially testified according to events. In the "early morning" of October 2, 1994, Ms. Price saw Mr. Rorie with a knife. She "was laying down" and "[h]e was packing." Mr. Rorie was talking to [her] and packing at the same time. He said, "you ain't doing nothing but killing your baby. . . ." At the time, Ms. Price was pregnant with Mr. Rorie's child. She had decided to go out to purchase more cocaine.*fn3 Mr. Rorie "grabbed [Ms. Price] by [her] collar." He told her she "wasn't going [anywhere]. . . ." She informed Mr. Rorie that she "wanted him to leave" and that if he didn't go, she "was leaving." Mr. Rorie "said if he was going to leave that [she] was leaving, [she] was going with him."
At some point after the collar incident, Mr. Solice "had a bat and he was swinging [it] at [Mr. Rorie] but he broke the glass table in the process . . . ." Mr. Rorie "kept backing up . . . [as] [Mr.] Solice [was] swinging the bat at him." After the bat swinging incident, Ms. Lewis went out to call the police. She "hit her head" on the door and Mr. Rorie "was trying to tell [Mr. Solice]" that Ms. Lewis "got hurt" when she bumped her head on the door. Mr. Solice and Ms. Price "put cold water and stuff on [Ms. Lewis'] head" and then Ms. Price went out with Mr. Solice to purchase cocaine.
Eventually, Mr. Solice and Ms. Price returned to the apartment with the cocaine. Mr. Solice and Ms. Lewis smoked cocaine in their bedroom. At some point Mr. Rorie "was getting loud," so Mr. Solice "went and slept in the van." Ms. Price "went in the [bedroom] with [Ms. Lewis] and finished smoking [the cocaine she] had[,]" with Ms. Lewis. While the women were in the bedroom, Mr. Rorie "knocked on the door telling [Ms. Lewis] that he wanted to talk to [Ms. Price] but [she] wouldn't come out the room." Later, Ms. Price left the Lewis/Solice bedroom, went to the living room, and "laid down."
Some time after sunrise, Mr. Rorie "grabbed [Ms. Price] and pushed [her] down, made [her] lay down. Mr. Rorie was [s]tanding directly in front of Ms. Price . . . . He had a knife in his hand." Ms. Price called Ms. Lewis. When Ms. Lewis entered the living room, Ms. Price told her "to go get [Mr. Solice]." When Mr. Rorie saw Mr. Solice, he asked, "was he going to help him move his stuff back across town. And [Mr. Solice] said if anything I [will] sit your sh-t in the hallway." And he ...