Hernandez v. United States
Hernandez v. United States
Dissenting Opinion
dissenting.
Because evidence supporting a self-defense instruction was essentially nonexistent, I respectfully dissent from the majority’s reversal of the conviction in this case.
Opinion of the Court
A jury found appellant guilty of armed aggravated assault on Alejandro Ventura. D.C.Code §§ 22-404.1, -4502 (2001). The sole issue on appeal is whether the trial judge erroneously denied a defense request to instruct on self-defense. Although the evidence supporting the defense was admittedly slight, it was sufficient under our standards to justify the instruction. The failure to give the instruction was therefore error, and because the error denied the jury any guidance on the relevant legal principles, we must reverse and remand for a new trial.
I.
On September 2, 2001, at about 11:30 p.m., appellant stabbed Alejandro Ventura multiple times in the abdominal area.
A few minutes later, as Ventura and appellant finished their beers, Ventura felt appellant “poke” him. Ventura said “bug off’ but appellant continued to “poke” him. After appellant jabbed him three more times, Ventura noticed blood oozing from his torso. He attempted to follow appellant, who was running away, but after a block he realized that appellant was too far away to catch up with him. By this time Ventura was bleeding profusely. Realizing he was close to his apartment, he returned home and had his wife call an ambulance. He was taken to Howard University Hospital where he underwent major surgery, received forty stitches, and remained in the hospital for nine days. Ventura testified that he had no idea why appellant had stabbed him; he and appellant had not fought immediately before the stabbing, and they had never had a personality conflict. Interviewed by police detective Medina at the hospital, Ventura identified appellant by name and description as his assailant.
Appellant called two witnesses in his defense, his mother and Dr. Sanford Ed-berg, an expert in pathology. Ms. Hernandez testified that on the night of September 2 appellant returned to the home they shared at around midnight. His hair and back were covered with leaves and he had scratch marks on his throat that looked “as if somebody had ... grabbed him.” Ms. Hernandez described the scratch marks by a hand gesture which the court explained for the record as “indicating as if somebody was using both hands ... in a choking fashion.” Appellant’s eyes were “really red,” he “look[ed] nervous,” and there was bleeding on his neck from the scratches. He also had a swelling on the right side of his head. Ms. Hernandez helped him to bed, and the next day she saw a bruise on his neck— again “as if somebody had put their hands around his neck.”
Dr. Edberg based his testimony upon review of Ventura’s medical records from Howard University Hospital, information supporting the warrant for appellant’s arrest, and the transcript of Ms. Hernandez’ testimony at appellant’s pretrial detention hearing. He had determined that Ventura was a “chronic user of alcohol,” and offered the opinion that “many people under the influence of alcohol tend to become combative ... for trivial reasons.”
II.
Although “[t]he trial judge may properly refuse to give [a defendant’s requested] instruction where no factual or legal basis for it exists, ... the failure to give such an instruction where some evidence supports it is reversible error.” Frost v. United States, 618 A.2d 658, 662-63 n. 19 (D.C. 1992). The test for “some evidence” is “a minimal one,” Shuler v. United States, 677 A.2d 1014, 1017 (D.C. 1996) (citation and internal quotation marks omitted): “[a] defendant is entitled to a jury instruction on a theory of the case that negates his guilt ... if the instruction is supported by any evidence, however weak.” Graves v. United States, 554 A.2d 1145, 1147 (D.C. 1989) (citations and internal quotation marks omitted). As we similarly stated in Wilson v. United States, 673 A.2d 670, 672-73 (D.C. 1996), “[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”
More particularly, in order to invoke self-defense a defendant must be able to point to evidence satisfying each of the following conditions:
(1) there was an actual or apparent threat; (2) the threat was unlawful and immediate; (3) the defendant honestly and reasonably believed that he was in imminent danger of death or serious bodily harm; and (4) the defendant’s response was necessary to save himself from the danger.
Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (per curiam), citing inter alia United States v. Peterson, 157 U.S.App. D.C. 219, 226-27, 483 F.2d 1222, 1229-30 (1973). “[A]n accused is entitled to a self-defense instruction if the evidence, either that of the defense or prosecution, fairly raises the issue,” Guillard v. United States, 596 A.2d 60, 63 (D.C. 1991) (citation and internal quotation marks omitted); “the testimony of the defendant is not necessary to put [the] claim before the jury.” McClam, supra note 3, 775 A.2d at 1104 (citing Reid v. United States, 581 A.2d 359, 367 (D.C. 1990)).
Applying these standards, we conclude that appellant “fairly raise[d]” the issue of self-defense because there was “some evidence,” however weak, supporting the conditions for the defense set forth above. The government’s evidence depicted a multiple stabbing by appellant precipitated by nothing more than Ventura’s idle question to him of “whether he had the courage ... to stick a knife into someone else.” Appellant presented contrary testimony that, as little as a half hour later, he returned home with injuries to his neck that appeared to his mother as if someone had grabbed him around the neck and choked him, leaving his neck scratched and bruised; and he had debris in his hair and on his back suggesting that he had been lying on his back. Further, Dr. Edberg opined from the record of Ventura’s
Contrary to the government’s position, this scenario is not a “bizarre reconstruction[] of the evidence.” McClam, supra note 3, 775 A.2d at 1104. It is true, as the trial judge observed, that although appellant came home “with marks [on his neck] and leaves on the back of his head[,] ... all of that could have occurred somewhere else [than in a fight with Ventura].” But it would not have been speculative for the jury to infer that the most natural place and time for appellant’s injuries to have been acquired was barely a half hour earlier when, according to the government’s evidence, appellant met up with Ventura and stabbed him without any apparent provocation. It is also true, as the government points out, that Dr. Edberg never actually examined Ventura’s wounds and that in support of his opinion that “[absolutely” they could have resulted from an upward, or defensive, stabbing he cited only to the superficial nature of three of them. But Dr. Edberg’s opinion was before the jury without objection; the prosecutor left it essentially uncross-examined; and it is not for us to say that the jury was precluded from giving it any weight in determining the circumstances in which Ventura was wounded.
In sum, appellant’s defense that he stabbed Ventura while threatened with serious injury by a stronger man
Although not explicitly arguing harmless error, the government points out that the trial judge in fact told the jury that appellant’s theory was self-defense, and even allowed him to argue self-defense in summation. But an instruction to the jury must “properly inform [it] of the applicable principles involved,” Stewart v. United States, 687 A.2d 576, 579 (D.C. 1996), and here the jury learned nothing about the legal meaning of self-defense, including concepts that, from the accused’s point of view, could have been vital to the jury’s proper evaluation of the evidence. See, e.g., CRIMINAL JURY Instructions, supra note 5, No. 5.12 (“The question is not whether looking back on the incident you believe that the use of force was necessary. The question is whether the defendant, under the circumstances as they appeared to him/her at the time of the incident, actually believed that s/he was in imminent danger of bodily harm, and could reasonably hold that belief’). Permitting appellant to argue self-defense was not an adequate proxy for an instruction explaining the relevant principles.
Reversed and remanded for a new trial.
. The testimony was uncertain as to exactly when the stabbing took place, but the trial judge (in ruling on the admissibility of certain evidence) concluded from the evidence that 11:30 p.m. was the time, and the jury could reasonably infer likewise.
. The government objected to the doctor's qualifications to express opinions regarding alcoholism and its effects, but the trial judge allowed the testimony. The government does not dispute the admissibility of this evidence on appeal, arguing instead that it adds nothing to the factual basis for a self-defense instruction.
. Another way of saying this is that the issue addressed by the instruction need only be "fairly raise[d]” by the evidence, although "trial judges properly deny instructions which require the jury to engage in bizarre reconstructions of the evidence.” McClam v. United States, 775 A.2d 1100, 1104 (D.C. 2001) (citations and internal quotation marks omitted).
. An inference of self-defense fairly reached by crediting portions both of the government’s evidence and of the defense evidence will, of course, entitle the defendant to the instruction. See Guillard., 596 A.2d at 63.
. On cross-examination, police detective Medina acknowledged that Ventura was "a much bigger [and "bulkier”] person than [appellant].”
. At one point the judge appeared to rule out the self-defense instruction because, in his view, no evidence supported "an inference ... that tihe defendant was not the first aggressor.” See Martin v. United States, 452 A.2d 360, 363 (D.C. 1982) ("It is fundamental that when one is the aggressor in an altercation, he cannot rely upon the right of self-defense to justify his first use of force.”). The testimony of Ms. Hernandez and Dr. Edberg, however, supported a reasonable inference— however weak — that the altercation began or escalated significantly when Ventura, his hand clasped rightly around appellant's neck forced appellant onto his back, thereby justifying an instruction on who was the first aggressor, see Criminal Jury Instructions for the District of Columbia, No. 5.16 (4th ed. 2002), as part of the instructions on self-defense.
Reference
- Full Case Name
- Napoleon S. HERNANDEZ, Appellant, v. UNITED STATES, Appellee
- Cited By
- 17 cases
- Status
- Published