Appeal from the Superior Court of the District of Columbia (F-4930-02) (Hon. Henry F. Greene, Trial Judge)
The opinion of the court was delivered by: Farrell, Associate Judge, Retired
Before KRAMER and THOMPSON, Associate Judges, and FARRELL, Associate Judge, Retired.
Appellant (Lee) was found guilty by a jury of second-degree murder while armed for the stabbing death of Melvin Hairston. The main issue he raises, and the only one we decide, is whether the trial judge erred in refusing to instruct the jury on mitigating circumstances, see CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (the Redbook), No. 4.19 B (2007 ed.), where evidence supported the instruction but neither party had requested (and the judge did not give) an instruction on the lesser included offense of voluntary manslaughter. Bostick v. United States, 605 A.2d 916 (D.C. 1992), compels us to reverse Lee's conviction.
Viewed in the light most favorable to the government, the evidence permitted a conclusion beyond a reasonable doubt that Lee stabbed Hairston to death on July 24, 2002, in retaliation for what Lee thought was an earlier molesting of his minor daughter by Hairston. In particular, with Hairston standing nearby, eyewitness Thomas Gary heard the child tell Lee that Hairston had "lick[ed] me and kiss[ed] me." Gary then saw Lee approach Hairston and appear to "punch" him in the stomach, causing Hairston to scream "you stabbed me." Robert Perry, Lee's 11-year-old son, testified that he had seen his father holding a knife and then stab Hairston with it. Other eyewitnesses saw parts of the altercation and either confirmed that Lee had swung at Hairston or placed him on the scene in near proximity to Hairston, who died shortly afterward of a stab wound to the chest.
After the defense presented its evidence, the trial judge asked whether the parties were requesting an instruction on the lesser included offense of armed voluntary manslaughter. The judge believed that "the evidence support[ed]" the instruction, given the provocation Lee might have experienced from the report of molestation; but the judge had resolved "not [to] give it if neither party asks for it." Initially, defense counsel stated that he would "probably" want the instruction, but later (after talking with Lee) stated that the defense did not want it, and that he likewise would not argue "mitigation" in his closing.*fn1
The prosecutor, too, did not request the manslaughter instruction, and the judge therefore instructed only on second-degree murder and on the defense theory that another person (Bobby Smith) had killed Hairston.*fn2 Following the instructions, however, Lee's counsel pointed out to the judge that he had "[taken] out the mitigating circumstances language from the second degree murder [instruction]," which counsel viewed as an "element" of the charge: "certainly [counsel stated] I think that if this jury had rejected any of the defense's contentions, period, [it] may consider that element [i.e., mitigating circumstances], which is a required element to second degree murder." The trial judge rejected this argument, stating his view that mitigating circumstances "[is] only a required element if you're seeking . . . manslaughter. . . . Where there is no lesser included, there's no mitigation" and "the [c]court doesn't give that as an instruction."
Lee contends, relying on Bostick, supra, that the judge erroneously conflated the two issues of his (or the government's) entitlement to a lesser included offense instruction and Lee's entitlement to an instruction on mitigating circumstances when evidence fairly supported it. The government, while not disputing that Lee presented "some evidence" of mitigation,*fn3 argues that he has not preserved the issue and that, in any event, Bostick does not "compel" the conclusion that he was entitled to the instruction on mitigation. Lee has the better of the argument on both scores.
The government points out, correctly, that Lee initially assented when the judge asked whether his decision not to request a manslaughter instruction did not "also eliminate the concept of mitigating circumstances and . . . the requirement that the government prove no mitigating circumstances beyond a reasonable doubt." However, Lee's counsel ultimately thought better of this concession because, as we have seen, he complained of the omission before the jury retired, asserting that mitigation was an "element" of second-degree murder which the jury should be allowed to consider. The government's response that Lee was silent (and so waived his objection) when the judge then "explained his reasoning" (Br. for Appellee at 23) - i.e., that mitigation is not an issue when no manslaughter instruction has been sought - does not persuade us. The trial judge understood Lee's desire for the instruction on mitigation, but disagreed with his claim of entitlement to it. Lee thus preserved the issue adequately for appeal, and we turn to the merits.
In Bostick, the defendant-appellant similarly claimed error in the judge's "refus[al] to include an instruction on provocation as part of the charge to the jury on . . . second degree murder," Bostick, 605 A.2d at 916, even though no instruction on voluntary manslaughter had been requested or given. In accepting this argument, the court pointed out that "sufficient evidence of provocation [had been] presented . . . to support the requested . . . instruction on mitigation of malice, malice being an essential element of second degree murder to be proved by the government." Id. at 918 (footnotes omitted) (citing Comber v. United States, 584 A.2d 26, 41 (D.C. 1990) (en banc)). The court explained that, although "the absence of adequate provocation is not an element of second degree murder, its presence is a defense to that charge." Id.*fn4 Therefore, "[g]iven the evidence of provocation here, the corresponding [standard] instruction should have been given and the government should have been required to disprove mitigation." Id.*fn5 Indeed, the court found error even though, unlike in the present case, the judge had told the jury "that a malicious act must be done 'without adequate provocation' . . . and that the killing must occur 'without circumstances serving to mitigate . . . the act.'" This was "insufficient," the court said, "where the defendant specifically requests the full instruction on provocation, including the requisite burden of proof on the government." Bostick, 605 A.2d at 918 n.8.
Importantly, the court rejected the government's argument "that when the defendant is charged with second degree murder an instruction on provocation may be given only if an instruction on the lesser-included ...