Appeal from the Superior Court of the District of Columbia (No. F-3424-01) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before WASHINGTON, Chief Judge, and GLICKMAN and KRAMER, Associate Judges.
Convicted after a jury trial of voluntary manslaughter while armed and related weapons offenses, appellant Byron R. Dorsey asserts that the trial court committed reversible error in several of its rulings. We disagree and affirm appellant's convictions.
Appellant was charged with killing Andre Wilson inside his home at 1333 Congress Street, S.E. The prosecution presented evidence that appellant and his brother, Christopher Herron, went to that residence in order to sell marijuana to some of its other occupants. After their arrival, Wilson confronted them and ordered them to leave. A scuffle ensued, during which appellant fired the shots that killed Wilson.
Appellant did not testify at trial. The primary theme of his defense was misidentification: his counsel challenged the prosecution witnesses and denied that appellant was at the scene of the shooting. At the conclusion of the trial, however, appellant requested jury instructions on self-defense and defense of a third party, based on evidence adduced in the prosecution case that Wilson was the aggressor.
1. Denial of Instructions on Self-Defense and Defense of a Third Person
Appellant argues that the trial court erred by refusing to instruct the jury on self-defense and defense of a third person. We are not persuaded. While a defendant is entitled to an instruction on a theory of defense so long as there is some evidence ("however weak") to support it, see, e.g., Hernandez v. United States, 853 A.2d 202, 205 (D.C. 2004),*fn1 instructions on self-defense and defense of a third person should not be given if the defendant, as a matter of law, used excessive force. See, e.g., Edwards v. United States, 721 A.2d 938, 941 (D.C. 1998); Fersner v. United States, 482 A.2d 387, 392-93 (D.C. 1984). To justify the use of lethal force, as in this case, there must be evidence that the defendant honestly and reasonably believed that he or a third party was in imminent peril of death or of serious bodily injury, and that the use of lethal force was necessary to save himself or the third party from that harm. Edwards, supra; Fersner, 482 A.2d at 392; see also Fisher v. United States, 779 A.2d 348, 355 (D.C. 2001). "[N]ever must the necessity be greater than when the force employed defensively is deadly." Edwards, supra (quoting Harper v. United States, 608 A.2d 152, 154 (D.C. 1992)). Cf. Fersner, 482 A.2d at 393 ("[T]here are . . . degrees of deadly force. On some occasions, it may be reasonable only to cause serious bodily harm not threatening life itself.").
Viewed in the light most favorable to appellant, the testimony established that Andre Wilson was the initial aggressor and that appellant responded with lethal force. When Herron and appellant did not instantly obey his order to leave the house, Wilson grabbed Herron, stating "what you ain't understand me? what, you ain't hear me? y'all got to go." Appellant said they were ready to go and headed for the door, but Wilson continued to grab Herron by his shirt and hold him, preventing him from leaving. Wilson, who himself was unarmed, observed that Herron had a handgun and the two men wrestled for control of it; at least one witness saw Wilson get his hands on the gun.*fn2 Witnesses described both Herron and appellant as appearing scared. Appellant pulled out his gun -- possibly after Wilson told his friend Bobby Capies to check if appellant was armed -- and warned Wilson to let go of his brother, but Wilson ignored the warning. Capies, who also was unarmed, smacked appellant's hand, apparently trying to knock the gun away. Appellant maintained control of the gun, however. He fell back or withdrew into the corner of the room, and then opened fire, shooting both Capies and Wilson. According to the autopsy report, Wilson sustained a total of eight bullet wounds, which caused his death.
Appellant argues that in this "rapidly evolving situation," he "could have reasonably believed that his life and the life of his brother [were] in imminent danger. Wilson had his hand on [appellant's] brother's gun, and was ignoring [appellant's] pleas to let go. When Capies lunged at him, [appellant] could have reasonably . . . believed that he was about to be overpowered, and that he and his brother would be shot by Wilson." Thus, appellant concludes, there was "at least some evidence" sufficient to entitle him to instructions on self-defense and defense of a third person. Id.
We are persuaded, however, as a matter of law, that the situation confronting appellant was not dire enough to justify his killing Wilson. Wilson was not armed; he had uttered no threats; he did not obtain control of Herron's weapon or point it at Herron or appellant; and he had not inflicted any serious injury on Herron.*fn3 The same can be said of Capies with respect to his interaction with appellant. The evidence therefore did not show that appellant or his brother were in imminent peril of death or serious bodily harm, such that appellant reasonably could think a lethal response necessary,*fn4 even though Wilson was the initial aggressor and he was struggling to disarm Herron.
In coming to that judgment, we find Fersner especially instructive. In that case, the defendant Fersner struck the decedent Winslow in the head with a hatchet in order to save a third person, Reed, from a vicious beating. We acknowledged that Fersner reasonably believed that Reed was in imminent danger of serious bodily harm from Winslow, who was kicking and stomping her and threatening to break her neck. Nonetheless, we upheld the trial court's refusal to give an instruction on the use of deadly force in defense of a third person, because Fersner "did not have 'reasonable grounds to believe' -- even if acting 'in the heat of passion' -- that hatchet blows to Winslow's head were necessary to defend Reed." 482 A.2d at 393. We explained that
[e]ven if appellant [Fersner] was entitled to use deadly force -- i.e., force "likely to cause death or serious bodily harm" -- there are, as this definition implies, degrees of deadly force. On some occasions, it may be reasonable only to cause serious bodily harm not threatening life itself. This is such a case. Under the circumstances here, appellant obviously could have saved Reed by striking Winslow with the blunt side of the hatchet elsewhere on the body, with less damaging (here fatal) results. As a matter of law, therefore, appellant used excessive force; it was not necessary for appellant to use an amount of deadly force that was likely to kill Winslow.
Id. Fersner teaches that a defender may not use force "likely to kill" unless it is reasonable for him to think that such lethal force is truly necessary. That is a high standard, which reflects the sanctity of life. It is a standard that appellant did not meet. He had less drastic options after Capies failed to dislodge the gun from his hand; he did not have to shoot to kill. "As a matter of law, therefore, appellant used excessive ...