Appeal from the Superior Court of the District of Columbia (F-6120-03) (Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Farrell, Senior Judge
Before BLACKBURNE-RIGSBY, Associate Judge, KRAMER,*fn1 Associate Judge, Retired, and FARRELL, Senior Judge.
A jury found appellant guilty of the first-degree premeditated murder by shooting of Kalfani Hogg, conspiracy to assault Hogg and Kwame Walcott with a dangerous weapon, assault on Walcott with a dangerous weapon, and related weapons offenses. Evidence fairly allowed the jury to find that appellant enlisted Melba Norris and Shacona Gooding to lure Hogg to the Lincoln Heights area where appellant, armed with a sawed-off shotgun, lay in wait intending to avenge what he believed had been Hogg's rape of Norris. When Hogg arrived accompanied by Walcott, appellant forced them into the hallway of a building, told both to "lay down," and, after accusing Hogg of the rape, shot him in the head and neck, causing his death.
On appeal, appellant first argues that the trial judge erred in instructing the jury, as to first-degree murder and the proof requirement of intent to kill, that if the jury found that appellant had used a weapon and "[i]f use of the weapon under all of the circumstances [would] naturally and probably have resulted in death," it could ("you may") conclude "that the defendant had the specific intent to kill," but that it was "not required to reach [that] conclusion."*fn2 Although he now contends that this instruction unconstitutionally relieved the government of the burden of proof of his intent to commit first-degree murder, appellant made no corresponding objection at trial, and therefore must demonstrate plain error. See United States v. Olano, 507 U.S. 725 (1993). There was no error, much less plain error, in giving the instruction.
Where a defendant's state of mind is at issue in a criminal case, the
standard instructions in this jurisdiction allow the judge to instruct
the jury that "[y]ou may infer, but are not required to infer, that a
person intends the natural and probable consequences of acts s/he
intentionally did or did not do." Criminal Jury Instructions, supra
note 1, No. 3.101. A permitted inference of this kind, embodied in a
jury instruction, is a commonplace in the criminal law.*fn3
Of course, the inference allowed may not be cast in mandatory
terms or in the form of a presumption, conclusive or in any sense
burden-shifting. Sandstrom v. Montana, 442 U.S. 510 (1979); Green v.
United States, 132 U.S. App. D.C. 98, 405 F.2d 1368 (1968).
And the instruction must make clear to the jury, as No. 3.101 does, that the jury should consider all the circumstances in evidence that it thinks relevant in deciding whether the government has proved the necessary intent beyond a reasonable doubt. Appellant views our decision in Wilson-Bey v. United States, 903 A.2d 818 (D.C. 2006) (en banc), as casting doubt on the validity of the instruction, but he is mistaken. We expressly refused to call into question there the instruction that the "jury may - but is not required to - infer that 'a person intends the natural and probable consequences of [his or her] acts knowingly done or knowingly omitted.'" Id. at 839 n.38.
Appellant argues, however, that the vice in the instruction given in
this case was that it singled out a portion of the evidence for
mention, i.e., the proof that he had used a weapon,*fn4
thus deflecting the jury's attention from the other evidence
in the case. But that argument too is defeated by settled authority,
because, as Judge Leventhal recognized for the court in Belton v.
United States, 127 U.S. App. D.C. 201, 205, 382 F.2d 150, 153-54
(1967), "It is both desirable and necessary to instruct the jury that
they may infer the existence of malice from other evidentiary facts,
including the deadly nature of the weapon utilized."*fn5
The reason, LaFave explains, is the obvious one that a person "who intentionally kills another does not often announce to bystanders, 'I have in my mind an intent to kill' at the moment, or just before or after, he kills." LAFAVE, CRIMINAL LAW, supra note 2, § 14.2 (b), at 774-75 (footnotes omitted).
How then can the prosecution prove beyond a reasonable doubt that when he killed he intended to kill? Obviously this intent must be gathered from all the circumstances of the killing - the killer's actions and his words (if any) in the light of the surrounding circumstances.
Id. at § 14.2 (b), at 775.*fn6 The instruction here properly told the jury that, if it decided that appellant had used a weapon, it could consider "the nature of the weapon, the way [he] used it and other circumstances surrounding its use," and "[i]f use of the weapon under all of the circumstances would naturally and probably have resulted in death," the jury could - but was not required to - infer that he intended to kill the victim.
The instruction was thus constitutional and not otherwise improper,*fn7 and the cases appellant relies on are unavailing. It may be true that even "[a] presumption that would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition." Morissette v. United States, 342 U.S. 246, 275 (1952). But the instruction here was not cast in presumptive terms and, as we have seen, did not "isolate" any fact for consideration; rather, it directed the jury to consider all the circumstances before deciding the ultimate issue of whether the government had proved that appellant used a weapon intending to kill Hogg.*fn8 Similarly, the decisions appellant cites from the United States Court of Appeals for the District of Columbia Circuit either "disclaimed a legally compelled inference or presumption of malice from the use of a deadly weapon in a homicide case," United States v. Wharton, 139 U.S. App. D.C. 293, 298, 433 F.2d 451, 456 (1970), or otherwise found erroneous instructions that defined intent so as effectively to preclude consideration of defenses to murder, such as justification or excuse. See, e.g., Green, 132 U.S. App. D.C. at 99-100, 405 F.2d at 1370 (instruction improperly equated a "wrongful act intentionally done" with act "done with malice"); United States v. Perkins, 162 U.S. App. D.C. 321, 325, 498 F.2d 1054, ...