Appeal from the Superior Court of the District of Columbia (F-5654-98) (Hon. John M. Campbell, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before FARRELL and RUIZ, Associate Judges, and TERRY, Senior Judge.*fn1
Appellant Broadie was charged in an indictment with one count of first-degree murder while armed and one count of carrying a dangerous weapon ("CDW"). After a jury trial, he was convicted of the lesser included offense of voluntary manslaughter while armed ("VMWA"). The jury acquitted him of first-degree murder while armed, the lesser included offense of second-degree murder while armed, and CDW. On appeal he presents two claims of error. First, appellant contends, for three separate and independent reasons, that the trial court erred when it refused to instruct the jury on the lesser included offense of unarmed voluntary manslaughter. He also maintains that the trial court erred by giving the jury a "no duty to retreat" instruction because there was no evidentiary basis for it. We reject all of these arguments and sub-arguments and affirm the conviction.
A. The Government's Evidence
On the morning of July 27, 1998, nineteen-year-old Shanita Baylor and her friend Anika Cooper were drinking beer outside the home of Cooper's mother at 4006 Eighth Street, S.E. At the same time, Morkina Broadie, who is appellant's cousin, was visiting her grandmother in the same block of Eighth Street. After Baylor made a remark to Morkina's boy friend, Baylor and Morkina argued "off and on" throughout the afternoon. At one point, Morkina asked her friend Charvelle Fernandez to find help; Fernandez left and returned to the scene of the argument with appellant. Appellant discussed the situation with Cooper's boy friend, Donnic Barno, and everyone agreed to "squash" the argument. After appellant left, however, the argument did not end.
Later in the afternoon, as Morkina was about to get into Fernandez's car to drive home, Baylor approached Morkina and asked her if she wanted to fight. Cooper then displayed a small "kitchen knife,"*fn2 and Morkina's sister, Marsha Broadie, retrieved a knife from her car.*fn3 Donnic Barno, with the assistance of a neighbor, broke up the argument and brought Baylor and Cooper back across the street to Cooper's mother's house before any fighting occurred. Morkina again told Fernandez to go for help, and she returned shortly thereafter with appellant.
When appellant arrived this time, Baylor, Cooper, and Barno were all standing near 4006 Eighth Street. Appellant walked over to them and asked who had a "problem" with Morkina.*fn4 Morkina and Fernandez also came across the street to where Baylor, Cooper, and Barno were standing.*fn5 While appellant was speaking to the group, Cooper pulled out a knife, and Baylor took out a can of mace.*fn6 According to Cooper's testimony, appellant told Baylor, "Go ahead and mace me. . . . I got something for you," adding that he was "going to put five of them up in her."*fn7 At that point Baylor sprayed the mace in appellant's face, but some of the mace also landed on Morkina and on Cooper's mother. Baylor then turned around and ran away from appellant, toward the rear of the house where they had all been standing. Others who were present also began running, but they went in different directions. Appellant was the only one who chased after Baylor.*fn8
Cooper's eleven-year-old brother, Benjamin Minkins, was the only witness who saw what happened next. From the corner of 4000 Eighth Street, Minkins saw appellant approach Baylor and "grab[ ] her by the arm and hit her in the chest."*fn9 Although he saw blood on Baylor's chest, he did not see anything in appellant's hand. Appellant then kicked Baylor in the head after she fell over some steps. Baylor, who had blood on both the front and back of her shirt, managed to stand up and run away, but eventually she collapsed in the middle of Eighth Street. As appellant left the scene, he passed fourteen-year-old Rodney Posey, who testified that he saw a knife in appellant's hand.*fn10 The police later recovered the can of mace that Baylor used, but they did not find a knife anywhere in the vicinity.
The court also admitted into evidence Baylor's autopsy report, which stated that Baylor died from two stab wounds. The government then called Deputy Chief Medical Examiner Dr. Jacqueline Lee, an expert in the field of forensic pathology, to explain the autopsy report and Baylor's wounds.*fn11 Dr. Lee stated that Baylor had a one-and-a-quarter-inch stab wound in the left side of her back (which we shall call the "back wound" or "first stabbing")*fn12 that was five to six inches deep. That wound passed through the muscles beneath the skin, between two ribs, through the left lung, and into the left chest cavity. The back wound ran from left to right at an upward angle. According to Dr. Lee, this wound was consistent with a person pulling Baylor by her left arm with one hand and inserting a knife with the other hand in an upward fashion toward the right. In addition, Dr. Lee said, "The irregularity in the wound noted by both the scrape and by the irregularity or tear at the wound indicate[d] that there was movement of the knife or movement of the body."
The other wound (the "chest wound" or "second stabbing"), on the right side of the chest, was five to six inches deep. It went through the breastbone, two major arteries at the top of the heart, and then into the left lung. Dr. Lee explained that it would take "a great deal of force for the knife to actually pass through bone," and that this wound was made in "a downward thrust passing from the right side to the left side and downward," consistent with someone raising the knife and coming down at the person being stabbed. Both wounds, the doctor said, were likely made by "a single edged knife," such as "a table knife or a steak knife."*fn13 She also stated that the autopsy reported listed the cause of death as "stab wounds to chest and back." However, when asked by the prosecutor if either stab wound by itself could have caused Baylor's death, Dr. Lee answered, "Yes."
Finally, the government offered into evidence a letter that appellant wrote to Morkina Broadie on October 6, 1998, in which he asked whether her boy friend, Tony Monroe, would be a witness and "say . . . that I didn't have a knife . . . and that . . . [Baylor] had a knife and mace and that she had been smoking and drinking." The defense sought to exclude this letter as prejudicial, but the trial court allowed it to be admitted. Appellant later testified that he wrote the letter to find witnesses, because he was worried that a letter that his grandmother had received from "some sniper guy" would scare away potential defense witnesses.
The first defense witness was Lucian Jackson, a security guard at Largo High School in Prince George's County, Maryland, who testified that security guards at Largo High had found a knife in Baylor's backpack when she was a student there in 1995.*fn14 Next, the defense called Dr. Nicholas Lappas, a professor of forensic science at George Washington University, who explained how alcohol affects the body. He also testified that Baylor's blood alcohol level of 0.17 showed that she was "significantly impaired as a result of alcohol and significantly intoxicated." Detective Monica Shields took the stand briefly and described the crime scene.
Appellant's aunt, Manica Broadie, testified that Baylor had a knife in her hand when she approached Morkina during the second part of the argument.*fn15 She said she tried to warn appellant about the knife in Baylor's hand when he arrived the second time, but she was unable to do so before Baylor sprayed the mace, which also hit her in her eyes and mouth. Although her eyes were watery from the mace, Manica stated that "ten seconds later" she saw appellant and Baylor run "in the same direction" behind the house; everyone else on the scene ran "in different directions." Although Manica did not see the encounter between appellant and Baylor after they ran behind the house, she testified that when they came back into view, appellant tripped over Baylor. At that point, she saw a knife "sitting on the side of [Baylor]," approximately "two or three inches" away. The next witness was Charvelle Fernandez, whose testimony was substantially the same as that given by Manica. She said she also tried to warn appellant that Baylor had a knife, but Baylor sprayed the mace before she could do so. Unlike Manica, however, Fernandez did not see appellant run after Baylor, or anything else that happened after Baylor sprayed the mace, because she ran to her own car.
Appellant then testified on his own behalf.*fn16 He said he was standing near Sixth and Brandywine Streets, S.E., when Fernandez first asked him to help Morkina. On that occasion appellant talked with Donnic Barno about how the argument was "petty," and then he left after the situation was "squashed." Approximately thirty minutes to an hour later, however, his cousin Marsha Broadie sought his aid a second time because Baylor and Morkina were still arguing. Appellant walked over to 4006 Eighth Street where Baylor, Cooper, and Barno were standing. He saw that Cooper was holding a knife, and that Baylor "had a can of mace in her left hand and a knife in her right hand." Just as appellant asked Barno, "What's up?", Baylor sprayed him in the face with mace. Although the mace went into his mouth and caused his eyes to water, appellant admitted that it did not affect his ability to see. He testified that he saw everyone running in different directions after Baylor sprayed the mace. He ran after Baylor, who he said still had a knife in her hand, because he believed that she was chasing Morkina.*fn17 He stated that Baylor "just had an altercation with [Morkina] earlier and she was trying to fight her. So I assumed that's who she was going after."
Appellant then described what happened when he caught up with Baylor:
Well, as I ran to the opposite side of 4006, I had grabbed her by [her] left arm and turned her around. And as I turned her around, she was coming at me with her right hand like coming towards me with the knife. . . . I just reacted and with the knife - the hand that she had the knife in and swung at me, I reacted and jerked it up behind her back and grabbed her by the left shoulder. . . . By that time I struggled with her for a minute, for a few seconds, to get the knife out of her hand . . . .
Next, he said, he "grabbed her by the right arm and like twisted - just pulled it - yanked her right arm up towards her back." Although he knew that Baylor's arm had hit her back, appellant stressed that he was not trying to stab her with the knife and did not know she had been stabbed. He said that the knife fell to the ground after he struggled with Baylor, and that he reached down to grab it. Just as he picked it up, he saw Baylor "reach in her purse for some shiny metal, and as she was coming at me, I stabbed her in the chest."*fn18 Appellant explained that he thought that Baylor was reaching for "a gun or maybe a knife" and that she was "try[ing] to kill me." According to appellant, all of this took place within "[a]bout five seconds at the most."
After appellant stabbed Baylor in the chest, he saw her run toward Eighth Street with a metal object in her hand, eventually falling down some stairs. He testified that he "thought she was going after [Morkina] again." Because he was "running so fast" after her and "couldn't stop," appellant "tripped over her," but he did not fall down. At this point, he said, "As I ran - I dropped [the knife] by my body and I ran" back to Brandywine Street.*fn19
On cross-examination, the government questioned appellant about the conditions under which he pursued Baylor. First, with respect to Morkina's whereabouts, appellant admitted that he neither saw where Morkina was nor looked around or yelled out to warn her as he ran after Baylor; he "just thought" that she was in danger. Second, he acknowledged that Baylor ran away from him and not toward him after she sprayed the mace. Finally, he conceded that he did not "have fear for ...