Argued February 26, 2015
Appeal from the Superior Court of the District of Columbia (CF1-16665-11) Hon. Robert E. Morin, Trial Judge
Daniel Gonen, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.
John Cummings, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Shana Fulton, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Fisher, Associate Judges, and Steadman, Senior Judge.
Glickman, Associate Judge:
This is a homicide case in which the accused, appellant Brandon Andrews, claimed that he killed the decedent, Leonard Bigelow, in self-defense. There was bad blood between the two because appellant had been harassing Leonard Bigelow's sister, Katina Bigelow. In a previous encounter, Leonard allegedly pulled a knife on appellant and threatened to kill him if he would not leave Katina alone. Three days later, appellant called and told Leonard he was coming over to see Katina. Leonard responded that appellant was not welcome at their house and that if appellant showed up, he (Leonard) would be waiting for him. Appellant was not deterred; armed with a pistol, he went to the Bigelow residence. When he arrived on the street outside the house, Leonard allegedly charged at him with a knife, and appellant shot and killed him. Appellant maintained at trial that he went to see Katina for peaceful purposes, had every right to be where he was when Leonard attacked him, and had no choice but to shoot Leonard to save himself from a deadly attack.
The trial judge instructed the jury that one who deliberately puts himself in a position where he reasonably believes his presence will provoke trouble forfeits the right of self-defense, and that appellant could not rely on self-defense if he provoked Leonard Bigelow's alleged attack on him. Appellant contends on appeal that the evidence at trial did not justify this instruction. Under the settled law of this jurisdiction, however, we are bound to disagree with appellant's contention and affirm his convictions for second-degree murder and the other offenses he committed in connection with the shooting.
According to evidence at trial, the circumstances culminating in the charges against appellant were as follows. Appellant began dating Katina Bigelow in October 2010. She lived with her father, Lacey Bigelow, and her brother, Leonard Bigelow. Lacey disliked appellant and barred him from the Bigelow home. Consequently, when appellant would go to meet Katina, he would not go inside her house, but instead would wait for her on the street. At some point during their relationship, appellant moved into a homeless shelter and started storing some of his clothing in Katina's car.
By August 2011, Katina and appellant's relationship was falling apart. On August 22, they got into a heated argument while Katina was driving him somewhere. Appellant became so agitated and intimidating that Katina attempted to stop at a police station to request help. According to Katina, appellant discouraged her from doing so and told her that if she tried to do that again, she would die. Feeling "very scared, " Katina then managed to pull over and secure the aid of police in removing appellant from her vehicle. That evening, he appeared outside her house. She did not go outside to speak with him and instead called the police. Appellant left before the police arrived. Later that night, he sent Katina several menacing text messages, which she did not answer.
The next morning, appellant was waiting outside for Katina when she and Leonard left their house to take her daughter to school. Katina did not respond when he called out to her, but Leonard confronted appellant. Katina heard Leonard angrily tell appellant that she did not want to be with him. As the two men began to argue, Katina went back in the house to call the police. According to appellant, Leonard displayed a knife and threatened to kill him when he tried to speak to Katina. Appellant told him to fight him "like a man." Appellant then departed. Later in the day, Katina went to court to obtain a stay-away order. (The order was never served on appellant, however.)
Throughout the rest of that day, Katina did not answer appellant's repeated phone calls and text messages. The following night, after further unsuccessful attempts by appellant to communicate with her, Katina texted back that she was ignoring him "[b]ecause of the threats that you have said to me. I don't want to be in this relationship anymore so can you please stop calling and texting me." In a series of subsequent text messages, appellant pressed Katina to return the clothing he had left in her car. She texted back that she would get his belongings to him as soon as she could.
At 8:00 on the morning of August 26, Katina drove to the homeless shelter where appellant was staying in order to drop off his clothing. On her way, she texted him to let him know she had his things with her. When she arrived, Katina saw appellant standing near the shelter at the corner of 2nd and E Streets Northwest. To avoid interacting with him in person, she left his belongings at the bus stop on the corner of 3rd and E Streets and sent him a text message as she drove away, at 8:16 a.m., to let him know they were there. This elicited an angry reaction from appellant, who (as he testified at trial) saw people rifling through his belongings before he could get to them. Appellant sent Katina the following series of text messages, on which his conviction of felony threats to do bodily harm was based (Katina's sole response is shown in italics):
8:18 a.m. "You better get my shit."
8:20 a.m. "I swear to god I will fuck ...