September 20, 2016
from the Superior Court of the District of Columbia
(CF1-12634-12), Hon. Russell F. Canan, Associate Judge.
William Collins, Public Defender Service, with whom Samia Fam
and Jaclyn S. Frankfurt, Public Defender Service, were on the
brief, for appellant.
Stephen F. Rickard, Assistant United States Attorney, with
whom Channing D. Phillips, United States Attorney at the time
the brief was filed, and Elizabeth Trosman, John P.
Mannarino, and Veronica Sanchez, Assistant United States
Attorneys, were on the brief, for appellee.
Glickman, Easterly, and McLeese, Associate Judges.
EASTERLY, ASSOCIATE JUDGE:
Dawkins appeals his conviction for voluntary
manslaughter. He argues that the jury was deficiently
instructed regarding his claim that he used deadly force in
self-defense. Specifically, Mr. Dawkins argues that the trial
court erroneously permitted the jury to reject his
self-defense claim based on his failure to retreat, before
the decedent initiated a fistfight with him, before he
(mistakenly) perceived that fight as escalating into a
two-on-one attack, and thus before he employed deadly force
or had any possible justification (based on a reasonable
belief that he was in imminent danger of death or serious
bodily injury) to do so. Mr. Dawkins also argues that the
trial court compounded the harm of the deficient jury
instruction by overruling his objections to the
government's similarly impermissible arguments about Mr.
Dawkins's ability to retreat. We agree that the trial
court's instruction did not give the jury adequate
guidance and that this inadequacy was not harmless,
particularly in light of the government's closing and
rebuttal arguments. Accordingly, we reverse.
Facts and Procedural History
case arises from an encounter between three men previously
unknown to one another: the decedent Dwayne Brisbon, Mr.
Dawkins, and Daniel Cheek. Certain facts are undisputed.
After leaving different bars early one morning, Mr. Dawkins
and Mr. Cheek struck up a conversation on the street and
decided to walk together to a nearby gas station to buy
cigarettes. As they were walking, Mr. Brisbon (who had been
in the same bar as Mr. Cheek) drove by, and for reasons that
are not clear from the record, stopped to see if Mr. Cheek
"was . . . okay." Mr. Cheek reassured Mr. Brisbon
that he was "fine" and told Mr. Brisbon, who was
making him feel "a little uncomfortable," to
"go ahead." But Mr. Brisbon did not leave. At this
point, Mr. Dawkins also asked Mr. Brisbon to move on, and an
argument developed between the two men. Mr. Brisbon exited
his vehicle and went to the back of the car, Mr. Dawkins
followed, and there the fight became physical, with Mr.
Brisbon throwing the first punch. At some point, Mr. Cheek
tried unsuccessfully to get the two men to separate. The
fight ended with Mr. Dawkins stabbing Mr. Brisbon in the
neck, severing his carotid artery and jugular vein. Mr.
Dawkins fled, and Mr. Brisbon returned to his car, drove a
short distance, and crashed into a building. Mr. Brisbon bled
out before the paramedics arrived.
government obtained an indictment against Mr. Dawkins for
second-degree murder while armed, but it announced on the day
of trial that it would only pursue a conviction for voluntary
manslaughter while armed.
The Prosecution and Defense Theories and the Evidence at
opening statement, the government told the jury that it
believed the evidence would show both that Mr. Dawkins
"did not actually and reasonably believe that his life
was in danger that night and that he used excessive force
to defend himself." Although the government subsequently
disclaimed to the court and defense counsel that it was
arguing Mr. Dawkins provoked Mr. Brisbon or "was the
first aggressor" "in the technical use of the
word," the government highlighted for the jury that Mr.
Dawkins, "without any warning, without any provocation .
. . aggressively approached the passenger side of Mr.
Brisbon's car"; "charged to the back of the
car" with Mr. Brisbon "instead of walking away,
instead of saying hey, man, I didn't mean anything by
it"; and, "after Mr. Brisbon punched him, continued
to engage with Mr. Brisbon." Over defense counsel's
objection, the government "encourage[d]" the jury
"to think . . . of all the things the defendant could
have done, rather than engaging Mr. Brisbon."
Specifically, the government urged the jury to consider that
Mr. Dawkins "could have walked away. He could have,
again, let Mr. Brisbon go. He could have stayed at the side
of the car rather than charging to the back at the same time
that Mr. Brisbon did."
the testimony of Mr. Cheek, its central witness, the
government sought to present evidence in support of its
narrative. The government elicited testimony from Mr. Cheek
that Mr. Dawkins was the first to raise his voice, directing
Mr. Brisbon to "move." Mr. Cheek also testified
that Mr. Dawkins went over to the passenger's side of the
car, leaned into the car, and spoke to the driver in an
"aggressive" tone. But much of Mr. Cheek's
testimony indicated that Mr. Brisbon and Mr. Dawkins
contributed equally to the discord. Mr. Cheek testified on
direct that the incident seemed to escalate because of the
"energy" coming from both men. He recalled that
"[b]oth [men's] voices were pretty loud" and he
described both men as "sort of aggressive." He
could not hear everything they said, but both men were
cursing, saying things like "F you." Mr. Cheek
further testified that when Mr. Brisbon "charged out of
the car," Mr. Dawkins responded "[i]n a similar
way" and met him by the trunk. At that point, the men
"were just face-to-face, like chest to chest," and
although Mr. Cheek tried unsuccessfully to pry them
apart-"like elevator doors," with "one hand on
each" -it "just seemed like they both wanted
to fight." Mr. Cheek testified that Mr. Brisbon threw
the first punch, and Mr. Dawkins punched back.
Cheek testified that once the physical fight began, the men
appeared evenly matched and that Mr. Dawkins never asked for
help or tried to walk away. Mr. Cheek testified that both men
exchanged blows for "I don't want to say, 15, 20
seconds"; then, "the smoke cleared," and the
men separated. At that point Mr. Cheek saw that Mr. Brisbon
was bleeding and Mr. Dawkins had a knife in his hand. It
seemed to Mr. Cheek that Mr. Dawkins "was processing
everything that had just happened"-"it seem[ed] . .
. almost like something overcame him"; according to Mr.
Cheek, Mr. Dawkins then "snapped back into reality"
and ran from the scene. Mr. Brisbon, seemingly in shock, was
walking around holding his neck. Mr. Cheek tried to persuade
him to stay where he was, but Mr. Brisbon got back into his
car, drove it a short distance, and then crashed the car into
Cheek's testimony on direct indicated that he tried to
separate Mr. Brisbon and Mr. Dawkins before the fight went
beyond words. But on cross- examination he was impeached with
his statement to police, taken the night of the incident, and
later adopted under oath in his Grand Jury testimony and
admitted at trial as substantive evidence. In this statement,
Mr. Cheek told the police that Mr. Brisbon and Mr. Dawkins
were already "physically fighting" when he tried to
break them up. He further told the police that it was at this
point, when the men separated, that he saw that Mr. Dawkins
had a knife and that Mr. Brisbon was injured.
Dawkins, testifying in his own defense, explained that he was
under the misimpression that Mr. Cheek knew Mr. Brisbon-Mr.
Brisbon had pulled over to talk to Mr. Cheek and "[t]hey
seemed friendly." After Mr. Cheek stepped away from the
car, Mr. Dawkins asked Mr. Brisbon for a cigarette. But Mr.
Brisbon "got rude immediately . . . [and] said something
like, F off or F you." Mr. Dawkins then asked Mr.
Brisbon "what the F is your problem" and it
"escalat[ed] verbally from there." Mr. Dawkins said
he was walking away from the car back to Mr. Cheek when Mr.
Brisbon got out of the car and confronted him near the
trunk.He thought he heard Mr. Cheek say to Mr.
Brisbon "something like [']go ahead,
man.[']" When Mr. Brisbon got close enough to Mr.
Dawkins, he punched Mr. Dawkins in the throat. The two men
then exchanged punches, but at some point, Mr. Dawkins felt
someone else grab his left arm from behind, "like they
were holding me." Mr. Dawkins looked back and saw it was
Mr. Cheek. Mr. Cheek was not holding Mr. Brisbon, and Mr.
Dawkins "immediately thought, like, they're about to
jump me." Mr. Dawkins testified he "flashed
back" to an earlier time when this had happened to him.
He and a friend had been attacked and beaten unconscious by a
group of men; he ended up needing stitches and his friend had
to get surgery to repair a broken jaw. He felt he "had
to do something immediately to try to get them off of"
him. While his left arm was restrained, he pulled a folding
knife from his right pocket and swung at Mr. Brisbon. Mr.
Dawkins only remembered swinging once, but he acknowledged
that Mr. Brisbon had two stab wounds. After he stabbed Mr.
Brisbon, Mr. Brisbon walked back to his car, and Mr. Dawkins,
still scared, ran.
The Discussions About Jury Instructions
court and counsel had multiple conversations about how best
to instruct the jury about the law of self-defense. Defense
counsel's particular concern was the standard instruction
in the Criminal Jury Instructions for the District of
Columbia, No. 9.503 (5th ed. rev. 2013), which explains that
a defendant in this jurisdiction has no duty to retreat
before using deadly force, but that a defendant's ability
to retreat before using deadly force is a factor that the
jury may consider in assessing a self-defense
claim. Defense counsel asked that this
instruction be modified to respond to the government's
focus on Mr. Dawkins's failure to walk away from Mr.
Brisbon before or immediately after Mr. Brisbon punched him,
which, defense counsel argued, Mr. Dawkins had no legal
obligation to do. Counsel asked the court to distinguish
between nondeadly and deadly force and to explain that a
defendant's ability to retreat, consistent with his own
safety, is not a concern unless and "until [the
conflict] escalated to the point of using deadly force."
government initially objected to any modification, arguing,
inter alia, that Mr. Dawkins was attempting "to make
this two separate incidents when, in fact, the facts . . . as
we believe they came out were that this was one continuous
incident where there's this fistfight and during the
course of the fistfight, the defendant stabs Mr.
Brisbon." But after the court expressed concern
about juror confusion, the government proposed to modify the
standard instruction by adding an introductory sentence:
"The law does not require a person to retreat or
consider retreating if he actually and reasonably believes it
is necessary to use nondeadly force to prevent imminent
bodily harm." Although defense counsel's competing
proposal likewise incorporated language that there is no duty
to retreat in a nondeadly force situation, the defense
proposal kept its focus on the use of deadly force and sought
to clarify that, in assessing whether a defendant reasonably
employed such force, the jury could only consider a
defendant's ability to retreat at the time deadly force
Mr. Dawkins's objection, the court adopted the
government's modification of the standard instruction,
which, the court concluded, "give[s] the defense what it
needs to explain [its understanding of the law] during the
The "Retreat" Instruction
to its conversation with counsel, the trial court instructed
The law does not require a person to retreat . . . or
consider retreating if he actually and reasonably believes
that it is necessary to use nondeadly force to prevent
imminent bodily harm.
The law does not require a person to retreat or consider
retreating when he actually and reasonably believe[s] that he
[i]s in danger of death or serious bodily harm and that
deadly force is necessary to repel that danger. But the law
does say that a person should take reasonable steps, such as
stepping back or walking away to avoid the necessity of
taking a human life, so long as those steps are consistent
with the person's own safety.
In deciding whether the defendant acted reasonably, you
should therefore consider whether he could have taken those
steps consistent with his own safety.
Closing Arguments and Verdict
summation, the government sought to persuade the jury to
reject Mr. Dawkins's claim of self-defense. The
government explained that an individual acting in
self-defense had to reasonably believe he was in imminent
danger of death or serious bodily harm. But the government
argued that Mr. Dawkins had not actually and reasonably
believed he was in such danger. The government highlighted
that Mr. Dawkins had been "just as aggressive" as
Mr. Brisbon and had "continu[ed] to engage Mr.
Brisbon" by going to the back of the car with him and
participating in a fistfight. The government further argued
that "at the time that Mr. Dawkins decided to take out
that knife and stab Mr. Brisbon he wasn't in danger of
anything except maybe a couple of bruises from Mr.
Brisbon's hands." And the government reread a
portion of the instruction about a defendant's ability to
retreat. The government emphasized that "the law does
say that a person should take reasonable steps, such as
stepping back or walking away to avoid the necessity of
taking a human life. So long as those are consistent with the
person's own safety." The government then argued
that Mr. Dawkins could have taken "many other steps
aside from using his knife to stab Mr. Brisbon . . . [among
them, ] Mr. Dawkins could have stopped, punched [Mr. Brisbon]
back, walked away."
for Mr. Dawkins responded in summation that the evidence
presented did not disprove his self-defense claim. Counsel
took pains to be "absolutely clear about what the law
says" about Mr. Dawkins's ability to retreat
regarding his claim of self-defense. Counsel explained that
it was important for the jury to focus on the correct
timeframe, and if the jury did so, the evidence supported Mr.
Dawkins's claim of self-defense: it showed that Mr.
Dawkins "wasn't in fear for his life until there
were [he thought] two people attacking him"; at that
point, he ...