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Brown v. United States

Court of Appeals of Columbia District

May 26, 2016

EDWARD BROWN, Appellant,
v.
UNITED STATES, Appellee.

          Argued October 16, 2015

         Appeal from the Superior Court of the District of Columbia (CF1-6022-13) (Hon. Ronna Lee Beck, Trial Judge)

          Benjamin Miller, Public Defender Service, with whom James Klein, Jaclyn Frankfurt, and Jessica Brand, Public Defender Service, were on the brief, for appellant.

          John Cummings, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee.

          Before Beckwith and Easterly, Associate Judges, and Nebeker, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the appellant's convictions for assault with a dangerous weapon and assault with significant bodily injury are affirmed.

          OPINION

          Easterly Judge

         This court has long recognized the common-law defense that authorizes an individual to protect or repossess personal property using nondeadly force and that correspondingly prohibits the use of deadly force for this purpose. Deadly force is understood to include force likely to cause "serious bodily harm." In this case, we consider whether the trial court should have, at Edward Brown's request, defined "serious bodily harm" for the jury using the same definition this court adopted for "serious bodily injury" in the context of aggravated assault. See Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999). We answer this question affirmatively. Nevertheless, we determine that Mr. Brown is not entitled to reversal because, on this record, this instructional omission was harmless. Thus we affirm Mr. Brown's convictions for assault with a dangerous weapon and assault with significant bodily injury.[1]

         I. Facts and Procedural History

         After an incident in which Mr. Brown struck Torita Burt in the head with the blunt end of a hatchet while she was visiting him in his apartment, Mr. Brown was charged with first-degree sexual abuse while armed, [2] kidnapping while armed, [3] assault with a dangerous weapon, [4] and assault with significant bodily injury.[5] He pled not guilty on all counts and was tried by a jury. At trial, Mr. Brown did not dispute that he had struck Ms. Burt. The only question was why Mr. Brown had done so.

         Ms. Burt testified for the prosecution that she knew Mr. Brown well and, after meeting him on the street, had voluntarily gone to his apartment to smoke crack and have sex with him. When she tried to leave, however, Mr. Brown hit her on the head with a hatchet and pinned her to the bed by her throat. He agreed to let her depart only after she had sex with him again. Ms. Burt testified that "you need a key in order to exit" Mr. Brown's apartment building, and that, after they had sex, she had to wait for him to unlock the apartment building door to "let [her] out." Once she left the building, she walked several blocks before collapsing on the sidewalk. She then called 911, and the responding police officers found her sitting on a stoop, bleeding from a cut on the left side of her head. An ambulance took Ms. Burt to Howard University Hospital, where she received nine stitches, a sexual-assault exam, and a CAT scan that revealed a subdural hematoma.[6]

         Mr. Brown told a different story. He testified that Ms. Burt, whom he had known for almost ten years, came to his apartment building around 3:00 a.m. hoping to use his bathroom. Mr. Brown let Ms. Burt in, and while she was in his apartment, she smoked crack and initiated oral sex with him. Afterward, Ms. Burt asked Mr. Brown for money to buy more cocaine, but he refused. Mr. Brown briefly left the room, and when he returned, he noticed that his new cell phone and charger, his wallet, and money from his dresser were missing. He accused Ms. Burt of taking his things, which she repeatedly denied; eventually, she picked up his hatchet, which had been on the floor nearby, [7] and started swinging it at him. Ms. Burt dropped the hatchet, Mr. Brown picked it up, and Ms. Burt tried to get it back from him. As they were grappling with the weapon, Mr. Brown struck Ms. Burt on the head with the hatchet's blunt end. The blow caused her to fall "on her knees" and she ended up "slumped over" on his bed, "with her head down." She lay there for "about a minute and a half to two minutes before she even raised her head up."

         Mr. Brown testified that he felt "real bad after [Ms. Burt] got hit, " that he had not been trying to hurt her, and that he was just trying to "protect [him]self."[8]He took her into the bathroom to clean and bandage her wound, and then walked her back to the bedroom. He went back to the bathroom to clean the sink and, "like two minutes later, " when he came back to the bedroom, Ms. Burt was not there. She had already gone downstairs and was waiting by the building's front door for him to open it. He offered to call 911, but she said she was "okay." He let her out and then locked the door after her.[9] When the police arrived at Mr. Brown's apartment a little later, he showed them the bloody sheets and the towels he had used to clean up after the incident.

         At the close of the evidence, Mr. Brown requested an instruction on self-defense.[10] He also requested an instruction on defense of personal property, which authorizes the use of reasonable, nondeadly force to repossess personal property and correspondingly prohibits the use of deadly force for that purpose.[11] Because "deadly force" is defined as "force that is likely to cause death or serious bodily harm, "[12] Mr. Brown asked the court to define the latter term. Specifically, Mr. Brown asked the court to borrow the instruction defining "serious bodily injury" from the standard jury instruction for aggravated assault, and thus to inform the jury that the phrase "serious bodily harm, " as used in the defense-of-personal-property instruction, means "an injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental faculty or a substantial risk of death."[13]

         The trial court determined that Mr. Brown's trial testimony did not support a defense-of-property instruction, but that the call he made to his girlfriend from jail, see supra note 8, "does arguably, I think." Thus the court agreed to instruct the jury on defense of property. But the court refused to define "serious bodily harm" using the definition of the aggravated-assault element of "serious bodily injury." The court explained that

we're talking about a common law term that . . . we haven't defined, precisely, for juries in making decisions about self-defense and, in this case, defense of property. And that-that's very different from a legislated definition for purpose[s] of defining a crime such as aggravated assault. . . . [The legislated definition is] different than a term that's been used for long before that where we leave it to the jury to make that kind of community judgment about the use of force.

         In response to Mr. Brown's concern that the jury would confuse "serious bodily harm" with "significant bodily injury" (because the latter term would be defined for the jury as part of the court's felony assault instruction[14]), the court offered to instruct the jury that "serious bodily harm" and "significant bodily injury" meant different things, but Mr. Brown declined this offer. The court ultimately instructed the jury:

Every person has the right to use reasonable non-deadly force to protect his property from theft when he reasonably believe[s] that . . . his property is in immediate danger of an unlawful taking and that the use of such force is necessary to avoid the danger.
Similarly, if a person reasonably believes that someone has unlawfully taken his property, he may use reasonable, non-deadly force to repossess the property.
A person may not use deadly force to protect his property from theft or to repossess his property. Deadly force is force that is likely to cause death or serious bodily harm.
Defense of property with non-deadly force is a defense to the charges of assault with a dangerous weapon and assault with significant bodily injury.
The Defendant is not required to prove that he acted in defense of his property with non-deadly force. If evidence of defense of property with non-deadly force is present, the Government must prove, beyond a reasonable doubt, that the Defendant did not act in defense of his property with non-deadly force. ...

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