Appeal from the Superior Court of the District of Columbia (F-7804-00) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, and FARRELL, Senior Judge.*fn1
Just after midnight on December 12, 2000, Melvin L. High shot his childhood friend, Lamar Gaither, fifteen times, killing the 20-year old on the street outside High's house.
High was indicted by a grand jury on September 19, 2001, for charges including first-degree murder while armed (D.C. Code §§ 22-2101, -3202 (2001)), possession of a firearm during a crime of violence or dangerous offense (§ 22-3204 (b)), carrying a pistol without a license (§ 22-3204 (a)), and unlawful possession of ammunition (§ 6-2361 (3)).
After a jury trial on December 9, 2002, the jury convicted High of voluntary manslaughter while armed (as the lesser-included offense of first-degree murder while armed), possession of a firearm during a crime of violence, carrying a pistol without a license, and unlawful possession of ammunition.
On appeal, High's primary argument is that his conviction for voluntary manslaughter should be reversed because there was insufficient evidence of provocation to support instructing the jury on voluntary manslaughter as a lesser-included offense of murder. For the following reasons, we agree that there was instructional error; however, because it was harmless, we affirm.*fn2
The morning of the murder, Gaither's mother, Diane, fixed Gaither and High breakfast at Gaither's home, and she took a picture of the two before they left the house. In the photo, High was wearing a green Eddie Bauer coat, a Redskins sweater, blue jeans and a red Redskins baseball cap.
After breakfast, Gaither and High drove to pick up Odell Smallwood, Gaither's cousin. Gaither smoked marijuana with Smallwood and drank alcohol with High. Later that day, the three men drove to a house to visit High's adult step-sister, Angela Nivens, and three of her friends. Smallwood and Gaither smoked more marijuana, while High and Gaither continued to drink. At some point that evening, Gaither went upstairs with Nivens where they stayed for 20 to 25 minutes before coming down together. Upon seeing the two return, High appeared none too pleased. When Gaither, High, and Smallwood left the house, High saw Nivens give Gaither a kiss on the cheek.
When the three men got into the car, High began yelling at Gaither and asking him what went on between himself and Nivens upstairs. According to Smallwood, High and Gaither were arguing back and forth with High yelling, "How the fuck you going to fuck my sister?," and Gaither responding, "Man, stop tripping off that shit." Smallwood testified that he had never seen High so upset.
High told Smallwood to drive him home. When they arrived, High got out of the car and went inside his house. Smallwood pulled the car over to the opposite side of the street, and Gaither got out of the car telling Smallwood that "he was going to go get his stuff." Smallwood remained in the car and waited for the two men to return.
About three or four minutes later, Smallwood heard "some shots" and ducked down inside the car. When he looked up, he saw High in the middle of the street standing over Gaither. Gaither was on his knees with his hand raised over his head. Smallwood could not see a weapon, but testified that it looked like High was hitting Gaither with his hand. Smallwood started the car, put it in reverse and backed down the street. Soon Smallwood heard several more shots, and when he looked back, he could see Gaither slouched down where he had been kneeling in the middle of the street.
Smallwood's testimony was corroborated in large part by Benson Medley, the boyfriend of High's mother, Cassaundra Britton. Medley testified that on the evening in question, he was at Britton's home around 10:00 P.M., when he heard "some people" walk past Britton's bedroom and head upstairs to the attic, where High roomed. After hearing a "commotion" or "tussling" upstairs that sounded like someone was moving furniture, Medley heard what sounded like two people coming back down the stairs. Later, when Medley looked out of the window, he saw High and Gaither ...