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Dawkins v. United States

Court of Appeals of The District of Columbia

July 26, 2018

Jonathan Dawkins, Appellant,
United States, Appellee.

          Argued September 20, 2016

          Appeal 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.

          Before Glickman, Easterly, and McLeese, Associate Judges.


         Jonathan Dawkins appeals his conviction for voluntary manslaughter.[1] 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.

         I. Facts and Procedural History

         This 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.

         The 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.

         A. The Prosecution and Defense Theories and the Evidence at Trial

         In its 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."

         Through 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" [2]-it "just seemed like they both wanted to fight." Mr. Cheek testified that Mr. Brisbon threw the first punch, and Mr. Dawkins punched back.

         Mr. 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 a building.

         Mr. 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.[3]

         Mr. 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.[4]He thought he heard Mr. Cheek say to Mr. Brisbon "something like [']go ahead, man.[']"[5] 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.

         B. The Discussions About Jury Instructions

         The 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.[6] 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."

         The 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."[7] 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 was used.[8]

         Over 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 closing argument."

         C. The "Retreat" Instruction

         Pursuant to its conversation with counsel, the trial court instructed the jury:

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.

         D. Closing Arguments and Verdict

         In 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."

         Counsel 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 ...

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