Appeal from the Superior Court of the District of Columbia (F-5105-99) (Hon. Natalia Combs Greene, Trial Judge).
The opinion of the court was delivered by: Percuriam
Before REID, Associate Judge, and WAGNER and STEADMAN, Senior Judges.*fn1
Following a jury trial, appellant, Lawrence A. Preacher, was convicted of manslaughter while armed, the lesser-included offense of second degree murder while armed, and carrying a dangerous weapon (CDW). His principal argument on appeal is that the trial court erred in failing to answer the jury's question about what constitutes an assault, in the context of that portion of the jury instructions explaining the circumstances for consideration in determining whether the use of deadly force was excessive, thereby resulting in the loss of appellant's self-defense claim. We agree that the trial court erred in failing to respond to the jury's question, and reverse.
The charges arose out of the stabbing death of Dennis Caine in the early morning hours of July 4, 1999. Michelle O'Neal Thomas (O'Neal), a witness called by the government, testified that at the time of Caine's death, she was thirteen years old and lived with her mother, Michelle Thomas (Shelly), at 1810 Savannah Place, S.E.*fn2 She testified that she met Caine through her mother, who was in a relationship with him. According to O'Neal, at about 10:00 or 11:00 that night, she accompanied her mother, Caine, and Nathaniel (Nate) Bowen, her friend, to a liquor store where they purchased beer. While there, O'Neal heard appellant ask Caine whether he could drive him home, and Caine replied that the car was too full. O'Neal testified that appellant met them back at the Savannah Street apartment where the others, with the exception of O'Neal and appellant, were drinking.*fn3 At some point, Shelly ran out of the apartment with Caine's car keys, and he followed her. Bowen, O'Neal and appellant also went outside. According to O'Neal, Shelly and appellant began to argue over a bag of chips that Shelly retrieved from the trunk of Caine's car, and Caine told appellant that he had purchased them for Shelly. Afterwards, appellant went to the front driver's side of the car and picked up a boxcutter from the front seat. O'Neal testified that appellant realized it was not his when he checked and found that he had his knife. Appellant put the boxcutter back, and Caine picked it up, held it in his hand down by his side, and walked to the back of the car where Shelly and appellant were arguing. O'Neal testified that she heard no exchange of words between Caine and appellant, but she heard her mother tell appellant that she was going to smack him. According to O'Neal, appellant then moved closer to Shelly, Caine moved to Shelly's side, and appellant then stabbed Caine and left. Caine, while still holding the boxcutter in his hand, told Nate Bowen that appellant stabbed him.
Shelly Thomas recalled Caine and appellant having some words that night, but she could not remember what they said. She testified that she was between Caine and appellant and that she just saw a reflection of appellant's hand before Caine said that he had been stabbed. She described appellant's knife, which she had seen before, as one that opens with the push of a button. Shelly admitted that she had had two 24-ounce cans of malt liquor to drink that night and that she had used crack cocaine at about 6:00 p.m. on the evening of July 3rd.
Appellant's version of events differed. According to appellant's videotaped statement, which was admitted into evidence, he went to 1810 Savannah Place, S.E. to collect $500 that Shelly owed him. When he confronted her about the money while on the street, Shelly cursed and slapped appellant, and he tried to prevent her from hitting him again. Appellant said that Caine, the decedent, who was in a relationship with Shelly at the time, moved toward him swinging the boxcutter, and appellant pulled a knife from his pocket, stabbed Caine in the stomach, and ran.
II. Claim of Instructional Error/Self Defense
Appellant argues that the trial court erred in failing to respond to the jury's question concerning what constitutes an "assault" in the context of the jury instruction concerning the reasonableness of appellant's use of deadly force against the decedent. He contends that the trial court's repetition of the general self-defense instruction in response only confused and misled the jury. Appellant contends that the error was compounded by the fact that Shelly Thomas slapped him as a part of the circumstances that led to his decision to use deadly force to protect his life. The government argues first that the "invited error" doctrine bars appellant's instructional challenge. It also argues that the court did not abuse its discretion, but followed a prudent course in re-instructing the jury after extended discussions with counsel.
On the third day of jury deliberations, the jury sent two notes to the court, one of which included the following inquiry:
(1) p.11 3rd paragraph, 2nd ...