Appeals from the Superior Court of the District of Columbia (F-4961-03 & F-5854-04) (Hon. Susan R. Winfield, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before FARRELL and THOMPSON, Associate Judges, and TERRY, Senior Judge.
A jury found appellant Charles R. Payne guilty of aggravated assault while armed (AAWA), see D.C. Code §§ 22-404.01 and 22-4502; possession of a prohibited weapon (PPW), see D.C. Code § 22-4514 (b); one count of threats to do bodily harm, see D.C. Code § 22-1810; and one count of criminal contempt, see D.C. Code § 11-944 (a). Payne argues that the evidence was not sufficient to convict him of aggravated assault or contempt. He also contends that the trial judge improperly refused to give certain jury instructions that the defense proposed and gave erroneous instructions on self-defense and reasonable doubt. Finally, in what we regard as his most substantial challenge, he claims that one of the jurors was coerced into finding him guilty. We reject each of these challenges, and therefore affirm.
The evidence at trial, viewed in the light most favorable to the government, see Curry v. United States, 520 A.2d 255, 263 (D.C. 1987), was as follows. In June of 2003, the complaining witness, Phillip Alston, lived at 54 Rhode Island Avenue, N.E. Payne lived a few houses down the street at 46 Rhode Island Avenue with Alston's sister. On June 25, 2003, Alston went to 46 Rhode Island Avenue to visit with his sister. As he approached, he saw Payne working in the garden.
There was a verbal confrontation between Alston and Payne, during which Payne cursed at Alston and pushed him on the chest. The men fought. Alston began to walk away, but turned around as Payne charged at him while swinging. Payne was carrying gardening shears and stabbed Alston in his left shoulder and hand. As Alston retreated to his house, Payne followed him, stabbing him along the way and inflicting a total of sixteen wounds.
Payne was arrested for assault. During his initial court appearance on August 18, 2003, he was ordered to stay at least 100 yards away from Alston. On the afternoon of September 16, 2004, Alston was standing on a neighbor's porch at 18 Rhode Island Avenue, N.E., talking with friends. Alston saw Payne standing approximately three feet behind him. Payne remained there about fifteen to twenty minutes, glaring at Alston.
Payne testified that Alston, inebriated, confronted him in his garden, punched him in the face and "flattened" him. He acknowledged that he had scissors in his hand during the fight with Alston, but testified that the scissors remained "inverted" during the fight. Payne further testified that he thought the fight was over until Alston sprung at him again. At that point, Payne testified, he began to hit Alston with the scissors in the upper part of his body. Payne testified that his reactions during the fight were in response to his knowledge that Alston had martial arts training. As to the events of September 16, 2004, Payne testified that he was simply talking with two of his friends. Although he saw Alston, he "wasn't worried" because "so much time had elapsed" since the initial assault. Payne testified that he "didn't stare [Alston] down nor did [he] approach him" or try "to be hostile or give any hostile gestures whatsoever."
A. Sufficiency of the Evidence
To prove aggravated assault while armed beyond a reasonable doubt, the government had to show, inter alia, that Payne "caused serious bodily injury" to Alston. Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999). Payne argues that the government failed to meet that burden because the evidence did not show that Alston sustained a "serious" injury.
"Serious bodily injury" is "bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty." Id. (internal citation omitted). A reasonable juror may infer "extreme pain" from testimony about the nature of the victim's injuries. Gathy v. United States, 754 A.2d 912, 918 (D.C. 2000). Here, the evidence was that Alston was stabbed sixteen times with Payne's scissors and as a result bled from his back, hands, and shoulder. One of the stab wounds hit bone. By the time Alston arrived at the hospital, he could no longer move and was losing consciousness. See id. (upholding a finding of serious bodily injury where the victim stood "a substantial risk of unconsciousness"). Further, two bones in Alston's left hand were broken as a result of the assault, and Alston wore a cast for four months and missed eleven months of work, evidence of protracted loss or impairment of his arm. Alston also testified that he attended physical therapy for three months, developed arthritis ("so bad that it makes me not be able to work for maybe a week or two, you know, when I try to work"), and developed multiple scars. On this evidence, we have no trouble concluding that a reasonable jury could find that Alston suffered serious bodily injury from Payne's assaultive conduct.
Payne also argues that the evidence was not sufficient for the jury to find him guilty of criminal contempt.*fn1 To prove criminal contempt of court, the government must prove: "(1) conduct committed in the presence of the court that disrupts the orderly administration of justice; or (2) willful disobedience of a court order, committed outside the presence of the court." Baker v. United States, 891 A.2d 208, 215 (D.C. 2006) (citations and emphasis omitted). Willful disobedience is found when one "intentionally violate[s]" a court order. See Grant v. United States, 734 A.2d 174, 177 (D.C. 1999). Payne argues that he did not "willfully" disobey a court order as he did not intend to cause harm to Alston on September 16, 2004, and thus did not have the requisite "wrongful state of mind." However, Payne admits that he saw Alston, yet approached anyway, to speak with his friends. That Payne intentionally approached the location where Alston was standing was a sufficient basis for the jury to conclude that Payne willfully violated the court's order. That Payne may have meant no harm to Alston is of no consequence.
Payne asked the court to give the jury the following instruction on the defense theory of the case:
On June 25, 2003, Mr. Charles R. Payne was home tending his garden with a pair of scissors. Mr. Phillip Alston came to his yard and sucker punched Mr. Payne in his eye, and a fight broke out and spilled over to the street. Mr. Payne finally used the pair of scissors he had in his hand against Mr. Alston in self-defense. Mr. Payne did not want to cause serious bodily injury to Mr. Alston, thus, he tried to use the scissors to poke Mr. Payne only on the arm, and in the hand area to prevent Mr. Alston from doing him (Mr. Payne) grievous bodily harm. He did not knowingly and purposely cause any serious bodily injury on Mr. Alston. Mr. Payne possessed the scissors to tend to his garden, and he used it only for self-defense. He used the scissors to do what he thought was necessary to defend himself against a much stronger and what he thought a deadly and belligerent person high on alcohol etc. Mr. Payne did not threaten Mr. Phillip Alston on that June 25, 2003 night.
With respect to the contempt charge, Payne sought this instruction:
Defendant Charles Payne did not approach or stare at Mr. Phillip Alston on September 16, 2004. He happened to be in the area of 18th Rhode Island Avenue, Northeast, and stopped to talk with his friends on the street. Mr. Payne did not engage in any willful attempt to show disrespect to the court. He did not commit any contemptuous act, nor did he have a wrongful state of mind.
The court declined to give the requested instructions, reasoning that they were "little mini-closing argument[s]" and observing that they were "long and fact bound" and were not valid defense theories.
"As a general proposition, 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." Adams v. United States, 558 A.2d 348, 349 (D.C. 1989) (citation and quotation omitted); see also Simms v. United States, 867 A.2d 200, 204 (D.C. 2005) (noting the defense must be "fairly raised by the evidence" (internal citation and quotation omitted)). However, a defendant is "not entitled to an instruction that does no more than rehearse or summarize the defense evidence, because this would give special emphasis to the defendant's testimony." Durham v. United States, 743 A.2d 196, 200 n.5 (D.C. 1999) (citing Montgomery v. United States, 384 A.2d 655, 660 (D.C. 1978)).
We agree with the trial court that Payne's proposed instruction on self-defense was a summary of the defendant's testimony rather a statement of legal principles. The trial judge rejected the proposed instruction, but acknowledged Payne's self-defense theory and gave a self-defense instruction very similar to the standard Red Book instruction.*fn2 We discern no error or abuse of discretion in the court's approach. Cf. Holt v. United States, 675 A.2d 474, 483-84 (D.C. 1996) (holding defendant's theory that he did not assault a police officer because he stopped when he found out the victim was an officer was adequately conveyed by the standard jury instruction for assault on a police officer).
The trial judge also gave a standard instruction on contempt, see CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.99O (4th ed. 2005), that correctly noted that to find Payne guilty, the jury must find that he "willfully disobeyed" the court's order. As the standard instruction incorporated Payne's proposed instruction to the effect that he did not engage in a "willful show of disrespect to the court" and did not have "a wrongful state of mind," we discern no error in the court's instruction. A trial court "need not give the instruction in the precise language that is requested." Campos v. United States, 617 A.2d 185, 187 (D.C. 1992). See also Durham, 743 A.2d at 200 n.5 (denying guilt cannot be recognized as a valid defense "theory" as to which a defendant is entitled to an instruction (citing Laughlin v. United States, 154 U.S. App. D.C. 196, 206-07, 474 F.2d 444, 454-55 (1972))). We also note that the trial court allowed Payne to argue both of his proposed instructions as "theories" during the closing argument. Under these circumstances, we cannot say that the trial court erred in refusing the proffered defense instructions.
Payne next argues that the jury instructions given by the trial judge on self-defense and reasonable doubt were incorrect statements of the law.*fn3 He largely relies on the following occurrence. During jury deliberations, Judge Winfield was not available to answer jury questions, and so the Honorable Lynn Leibovitz filled in. The jury sent out a note asking, "Procedurally, what occurs if we are unanimous on 1 (a)*fn4 guilty but are not unanimous on whether self-defense is present? Please advise." Judge Leibovitz observed that the jury had "misapprehended the instruction on self-defense." She then re-instructed the jury, telling them that "[s]elf-defense is a complete defense to the charges of aggravated assault while armed or assault with a dangerous weapon while armed," and thereafter giving the standard Red Book self-defense instruction.
Contrary to Payne's argument, Judge Leibovitz's comment that the jury "misapprehended" the prior instruction on self-defense cannot be construed as a comment that the prior instruction was deficient. Rather, the clear intent of Judge Leibovitz's comment was that the jury had misheard, misunderstood, or was misapplying the instruction that it previously was given. As both sets of instructions on self-defense were legally correct, and as there is no evidence that the jury was ...