Cowan v. United States

629 A.2d 496, 1993 D.C. App. LEXIS 182, 1993 WL 290130

• Court: District of Columbia Court of Appeals
• Decided: July 29, 1993
• Docket: 90-CF-327
• Status: Published

Opinions

SCHWELB, Associate Judge:

Cowan was convicted by a jury of felony murder while armed, D.C.Code §§ 22-2401, -3202 (1989), second degree murder, id.,1 § 22-2403, carrying a pistol without a license (CPWOL), id. § 22-3204, and attempted distribution of cocaine, id., § 33-541(a)(1) (1988). He seeks reversal of all of these convictions, primarily on the ground that the trial judge refused to instruct the jury on self-defense and defense of a third person. Cowan never requested an instruction as to that defense with respect to second-degree murder, CPWOL, or attempted distribution; indeed, on this record, such an instruction has no conceivable application to the latter two offenses. Co-wan did request the judge to instruct the jury on self-defense and defense of another with respect to felony murder, but sought these instructions only if the judge also instructed on aiding and abetting, as requested by the prosecution. The judge never gave an aiding and abetting instruction, and the condition under which Cowan had requested the instructions on self-defense and defense of a third person never materialized. We conclude that the judge’s refusal to instruct on these defenses was not “plain error,” and that even if the issue had been preserved, any error would have been harmless.

We note, sua sponte, that “[wjhen there is only one killing, the defendant may not be convicted of more than one murder.” Thacker v. United States, 599 A.2d 52, 63 (D.C.1991). Accordingly, we must remand the case for resentencing, with directions that the trial court vacate one of Cowan’s two murder convictions. In all other respects, we affirm.

I.

THE FACTS

In the early morning hours of November 20, 1986, in this city’s macabre drug underworld, one young life was snuffed out, and two others were effectively ruined. James (“Wop”) Cowan was then eighteen years of age. Sammie Giles, Cowan’s codefendant, who later entered a plea of guilty to second-degree murder and became the prosecution’s lead witness, was only sixteen.

Giles’ account of the relevant events at Cowan’s trial was a testament to the cheapness of life in the milieu in which he and Cowan moved;² the banality of the episode underlines its unremitting horror. Two teen-agers walked out into the streets of the city with cocaine to sell and a loaded pistol to guard their drugs and money. Their victim, a prospective buyer, was apparently shot dead because he argued with Giles and placed his hand in his pocket. Realistically, we are told, he who draws last in such an encounter may not survive.

According to Giles, he and Cowan were at Giles’ apartment, watching the movie “Scarface” and packaging crack cocaine for sale. They left the apartment to market the crack in the courtyard of the complex. Giles carried the drugs; Cowan, who was there to provide protection, was armed with a loaded .38 caliber revolver. The decedent, Anthony Knox, approached Giles and asked for cocaine. A dispute apparently arose over the price (or possibly the quality) of the drugs. Knox reached in his pocket and said “give me everything.” Giles testified that Cowan told him to “duck, soldier,” and then shot Knox.³ According to Giles, the two youths fled; Co-wan then stuck a revolver in Giles’ mouth and threatened to shoot Giles if he reported what had occurred.

There was additional testimony to support the prosecution’s theory that Cowan, and not Giles, shot Knox. Sixteen-year-old Tina Duvall, Giles’ cousin and Cowan’s former girlfriend, testified that the two young men had left the apartment together, with Cowan carrying a revolver. Upon their return following the shooting, according to Ms. Duvall, Cowan said that he “shot the guy because he was getting ready to stick up one of [my] soldiers.” Lillian Holcomb testified that, although high on drugs, she had witnessed the shooting and that Cowan had shot the decedent after “the guy” put his hand in his pocket.

The defense presented no evidence, but vigorously attacked the credibility of the prosecution witnesses and attempted to show, through their testimony, that it was Giles, and not Cowan, who shot Knox. Giles was impeached with alleged discrepancies between his trial testimony and the accounts which he had provided to the grand jury and to the judge who took his plea; he also acknowledged that he sometimes carried a handgun.⁴ The murder weapon had been recovered under a mattress in Giles’ apartment; according to Ms. Duvall, however, both Giles and Cowan stayed in the room where it was found.

Ms. Holcomb was impeached with her grand jury testimony that it was Giles who did the shooting and with other alleged inconsistencies in her accounts. Her credibility was also challenged on the basis of her drug use and her possible motivation to curry favor with the government in connection with pending drug charges. Ms. Du-vall was also impeached with allegedly inconsistent prior statements; she, too, admitted that she used cocaine in November 1986 and that Sammie Giles sometimes supplied her with drugs.

At the conclusion of the prosecution’s case, defense counsel moved for a judgment of acquittal (MJOA). The defense argued, with respect to the murder charges, that Cowan had acted in self-defense. The judge denied the motion as to all counts except first-degree murder. With respect to that charge, the judge ruled that the prosecution had not proved premeditation. He granted the MJOA, but referred the lesser-included offense of second-degree murder to the jury.

Prior to closing argument, the court and counsel had extensive discussions, which are described in detail in Part II of this opinion. With respect to the felony murder count, the judge agreed to instruct the jury, as requested by the government, on aiding and abetting, essentially on the theory that if Cowan participated in the attempted distribution, he could be convicted of felony murder even if it was Giles who shot Knox. The judge also agreed to the defense request that, if (but only if) an aiding and abetting instruction were given, the jury be instructed on self-defense and defense of a third person.

When counsel presented their closing argument, however, Cowan’s attorney made no mention of self-defense or defense of a third person. Indeed, he focused entirely on the theory that Giles, not Cowan, was the shooter. After further discussion, the judge decided that he would not instruct the jury either with respect to aiding and abetting or with respect to self-defense or defense of a third person. Cowan was convicted on all four remaining counts. This appeal followed.

II.

THE DEFENSE REQUEST FOR INSTRUCTIONS ON SELF-DEFENSE AND DEFENSE OF A THIRD PARTY

A. Background

In order to determine whether Cowan has preserved for appeal the question whether the jury should have been instructed on self-defense or defense of a third person, it is necessary to set forth the context in which the issue arose and the respective strategies employed by counsel for both sides.

The prosecution’s basic theory, as we have seen, was that Cowan shot Knox; Giles was viewed as an aider and abettor. Cowan’s defense, on the other hand, was that Giles was the shooter, that Cowan was innocent, and that the prosecution had not proved that Cowan was even present on the scene. The government countered this defense with an alternative theory that, even if Giles was the person who shot Knox, Cowan was aiding and abetting Giles in the attempted distribution of cocaine, and was thus guilty of felony murder. Based on this alternative theory, which was applicable only to the felony murder count, the prosecutor requested the judge to instruct the jury with respect to the law of aiding and abetting.

Cowan’s attorney objected, not without reason, that the prosecution’s alternative theory had not been presented to the grand jury and could not now be invoked at trial. Counsel also requested that if, but only if, the judge instructed on aiding and abetting, that he also instruct the jury, with respect to the felony murder count, as to self-defense and defense of a third person. In the absence of an instruction on aiding and abetting, the defense wanted no instruction whatever on self-defense or defense of a third person.

There were obvious strategic reasons which dictated defense counsel’s caution. Cowan’s attorneys understandably apprehended that, if these defenses were emphasized, the jury might assume that Cowan was the shooter, and that this might dilute and detract from the basic defense theory that it was Sammie Giles who shot the decedent. Indeed, one of Cowan’s attorneys candidly acknowledged her concern:

I think the problem with that is it makes the defense sound like we’re telling you we didn’t do it, but if you think we did it then we have another reason, and that sounds bad.

* * * * * *

[Self defense] shouldn’t be put as being our theory, because it makes it look like we’re trying to pull the wool over the jury’s eyes.

(Emphasis added.)

To avoid this impression, the defense had to tread very cautiously. Counsel therefore made two important strategic decisions. First, the defense would seek the instructions on self-defense and defense of a third person only if the prosecutor’s request for an aiding and abetting instruction was granted, and even then, only as to felony murder; this was because the prosecutor’s aiding and abetting request was based on the theory that Giles did the shooting, and was thus potentially helpful to Cowan’s basic defense. Second, Co-wan’s attorneys did not want the judge to include self-defense or defense of a third person in his instruction on the defense theory of the case; rather, they wanted this issue to appear to emanate from the judge, not from the defense.

B. Discussions Prior to Closing Argument

It was the government’s secondary theory — that Cowan was guilty of felony murder as an aider or abettor even if Giles did the shooting — that triggered defense counsel’s limited request for instructions on self-defense and defense of another:

THE COURT: Well, they are asking for self-defense.

MR. COBB [prosecutor]: I don’t know. THE COURT: They are.

■ MS. SUPLER [defense counsel]: Your Honor, that would only be if the court allows the government to argue and give the instruction of the aiding and abetting theory for a felony murder. If the court doesn’t then no. Our theory is that we did not do the shooting, therefore, we’re not guilty for that reason alone. And we wouldn’t need the self-defense or a defense of other instruction. Because, remember, we are asking the Court not to couch it in that the defendant used self-defense, but if the shooter used self-defense. See, that’s perfectly consistent with our theory. If the court doesn’t allow the aiding and abetting argument by the government, then we don’t need those instructions because our defense is that we weren’t the shooter. It was Sammy Giles.

(Emphasis added).

When the judge expressed some bewilderment, Cowan’s attorney explained that “if Mr. Giles shot in self-defense, and we can also be guilty because of his shooting, then we get the transferred self-defense intent.” Counsel continued as follows:

James Cowan did not have a gun in his possession and did not participate in a drug transaction. And, then, if the— and only if the court is going to allow the government the aiding and abetting theory on the felony murder, then we’ll ask for the three instructions in the order I presented with the language I presented.

The trial judge fully understood, and counsel for both parties agreed, that the government’s request for an aiding and abetting instruction was limited to the felony murder count, and that the request for instructions on self-defense and defense of a third person were similarly limited (and also conditioned on the aiding and abetting instruction):

THE COURT: Second degree murder only if the jury finds beyond a reasonable doubt that it was Cowan that did the shooting.

MR. COBB: Yes.

THE COURT: Now, insofar as the felony murder, I will give aiding and abetting on it, government’s theory that Cowan did the shooting, the defendant’s theory that Giles did the shooting, but in any event, in any event, if Giles did the shooting or whoever did the shooting, it was done in self-defense, either of the person or of the other person.

All right?

MS. SUPLER: That’s correct.

At no time prior to closing argument did the defense ask for an instruction on self-defense or defense of a third person with respect to any offense other than felony murder. Moreover, Cowan’s attorney emphasized several times that she did not want these instructions to be given if the court did not instruct on aiding and abetting. This was the posture of the case when counsel delivered their closing arguments.

C. The Closing Arguments and the Discussions that Followed

During his closing argument, the prosecutor argued that Cowan shot Knox. He also told the jurors, however, that the judge was going to instruct them on the defense theory that Giles was the shooter. On that hypothesis, the prosecutor explained that if the two defendants were working in concert, Cowan could be guilty of felony murder as an aider an abettor. In spite of the earlier exchanges between court and counsel about self-defense and defense of a third person, however, Co-wan’s attorney mentioned neither of these theories when it was his turn to present his final argument.

Upon the completion of the closing arguments, the judge and the attorneys revisited the question of the instructions. Cowan apparently⁵ takes the position that, during the course of these post-argument discussions, his attorneys changed their earlier position and asked unconditionally for instructions on self-defense and defense of a third person, whether or not the judge ultimately instructed on aiding and abetting. The record does not bear him out.

Cowan’s attorney suggested to the judge, in connection with the felony murder instruction, that “the court should say purposefully kills a human being without justification because of our possible self-defense case.” The judge responded that “I don’t know where you got self-de-fense_” He complained that

I don’t know what you’re saying. The guy wasn’t there, that he didn’t do anything, and that Giles did it. I just don’t know what your position is.

Cowan’s attorney explained that

we would ask for the self-defense instruction that we asked and [the] government asked after the theory of defense instruction.

(Emphasis added). Evidently, the defense request remained the same as it had been prior to closing argument.

The prosecutor complained, however, that Cowan’s attorneys had not mentioned self-defense in closing argument, but that they were nevertheless inconsistently seeking an instruction on that theory. Defense counsel immediately countered with the same position which she had taken prior to closing argument:

MS. SUPLER: Your Honor, our position is that Sammy Giles did the shooting. Now the jury can find either that we weren’t out there in which case they are not going to need to worry about self-defense. But they could find that [we] were out there. They could find that we’re guilty of the attem-pt distribution but find that Sammy Giles had a self-defense claim and, therefore, we should have the right to that as well.

The judge then indicated that, if there was to be a self-defense instruction, it should be a part of the defendant’s theory of the case. Defense counsel demurred, because

the jury could find that they could not believe our theory of the defense. And if they choose not to believe our theory of defense that Sammy, Sammy Giles shot it, then they could also believe that our client shot in self-defense_

(Emphasis added). The italicized phrase represents the first occasion in which a self-defense claim was articulated by the defense outside the context of aiding and abetting.

The judge, however, was not persuaded. He indicated that if the defense attorneys did not want self-defense and defense of a third person to be a part of the defendant’s theory of the case, he would not instruct on those defenses. Cowan’s attorney remonstrated that since she was contending that Giles was the shooter, it would “sound bad” to make self-defense an alternative defense theory of the case. The attorney then made the argument on which Cowan now primarily relies as proof that his point was preserved:

MS. SUPLER: No, Your Honor, because when there — when self-defense is raised in a case, when the defense has met [its] prima facie burden, which we have here, because we have a right to the instruction, then it becomes an element the government has to disprove. So it doesn’t have to be our theory of defense. But they still have to disprove it, because it has been raised. And, so, the court shouldn’t say that it’s our, that it’s an alternative theory. Because it’s not. It’s an element that the government must disprove. And, so, it should be almost like another element.

If this passage stood alone, one might reach the conclusion that counsel had changed her previous position and was now asking for self-defense and defense of a third person instructions for second-degree murder as well as for felony murder, and that she wanted the judge to give those instructions independently of any question of aiding and abetting. On the very next page of the transcript, however, Cowan’s attorney dispelled any such notion, and reiterated that her request was limited to felony murder and was still conditioned on the judge’s also instructing the jury on aiding and abetting. She stated that proof that the shooting was not done in self-defense or defense of another has become “another element to the felony murder, not to the second degree murder because we aren’t claiming self-defense at all there_” (Emphasis added). The judge ultimately decided not to instruct at all on self-defense or defense of a third person. He also declined to instruct on aiding and abetting.

D. Legal Considerations

Rule 30 of the Superior Court’s Rules of Criminal Procedure provides in pertinent part as follows:

No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.

In the absence of a timely objection, a conviction may be reversed only for plain error. Watts v. United States, 362 A.2d 706, 708-09 (D.C.1976) (en banc). Plain error contemplates a clear showing of a miscarriage of justice. Hunter v. United States, 606 A.2d 139, 141 (D.C.1992).

There is no evidence that Cowan ever requested an instruction on self-defense or defense of another with regard to the charges of second-degree murder, attempted distribution of cocaine, or CPWOL. Such instructions have no conceivable relevance to the drug and weapons counts, and Cowan’s attorneys repeatedly disclaimed any interest in self-defense or defense of a third person in relation to the second-degree murder charge. Cowan’s request that we reverse these three convictions is totally lacking in merit.

His position is not appreciably more persuasive with respect to his felony murder conviction. On several occasions prior to closing argument,⁶ defense counsel unambiguously stated that they were requesting instructions on self-defense and defense of a third person only if the judge gave an “aiding and abetting” instruction on felony murder. In doing so, Cowan’s attorneys invited the judge not to instruct on self-defense and defense of a third party if no aiding and abetting instruction was given. Courts are especially reluctant to reverse for plain error when it is “invited.” United States v. Mangieri, 224 U.S.App. D.C. 295, 305, 694 F.2d 1270, 1280 (1982).

After closing argument, Cowan’s attorneys essentially reiterated the position which they had taken previously. At the very least, they did not clearly change it. On one occasion, to be sure, counsel spoke about self-defense even if Cowan was the shooter, but she did not revise her prior request to charge. She also suggested that a showing that a defendant did not act in self-defense or in defense of another is in effect an element which the prosecution must prove. On the very next page of the transcript, however, counsel reiterated that she was not seeking a self-defense instruction for second-degree murder, an offense which did not involve aiding or abetting.

Rule 30 precludes reversal of Cowan’s conviction for alleged instructional error unless he stated his thesis in the trial court distinctly. See Britton v. United States, 112 U.S.App.D.C. 207, 208, 301 F.2d 531, 532 (1962) (per curiam). Cowan having clearly and unambiguously linked self-defense and defense of a third person with aiding and abetting, it was surely incumbent upon his attorneys, if they were changing their position, to make that change plain and unambiguous, so that the judge could readily understand it. As we recently noted in Hunter, supra, 606 A.2d at 144,

[objections must be made with reasonable specificity; the judge must be fairly apprised as to the question on which he is being asked to rule. Points not asserted with sufficient precision to indicate distinctly the party’s thesis will normally be spurned on appeal.

Nowhere in this record did Cowan’s attorneys state “distinctly,” with “reasonable specificity,” or with “sufficient precision” that their initial (and carefully conceived) position had become inoperative, and that they were now requesting self-defense and defense of a third person instructions unconditionally and across the board. Since the judge never gave an aiding or abetting instruction, the event upon which Cowan’s instructional request was conditioned never materialized. Accordingly, his objections in this court to the charge as given must fail, for “parties may not assert one theory at trial and another on appeal.” Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).⁷

III.

HARMLESS ERROR ANALYSIS

Even if Cowan had adequately preserved as an issue the judge’s failure to instruct on self-defense or defense of another — which he did not — we are satisfied that, under the unique circumstances of this case, any error would have been harmless.

Cowan’s attorney did not mention these defenses during his entire closing argument. If the judge had instructed as the defense conditionally requested, the jurors would have heard no more than a recitation of principles of self-defense or defense of a third person, with no presentation from counsel as to how these principles applied to the present case. Given the position taken by Cowan’s attorneys, the discussion would in all probability have appeared to the jurors to be essentially irrelevant to the controversy as defined by the parties.

Moreover, as our discussion in Part II of this opinion reveals, Cowan’s attorneys recognized that the subject of self-defense and defense of another was a dangerous one for them because it compromised their basic position that Cowan did not shoot Knox, and that perhaps he was not even on the scene. In other words, in the absence of an aiding and abetting instruction, defense counsel themselves wished, at least initially, to avoid any instructions on self-defense or defense of another because of the danger that such instructions would hurt, rather than help, Cowan’s case. The defense was conducted by experienced and able attorneys from the Public Defender Service, whose own repeated disavowal of the proposed instructions which Cowan now claims the judge should have given itself suggests that the failure to give them was harmless. See Hunter, supra, 606 A.2d at 145; Parks v. United States, 451 A.2d 591, 613 (D.C.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983).

Accordingly, even if the judge’s refusal to give the instructions at issue had been error, we are able to say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).⁸ We, therefore, also affirm on this alternative ground.

IV.

RESPONSE TO DISSENT

Our dissenting colleague accuses the majority of selectively quoting “isolated passages” from the record and, in particular, of ignoring the existence of the two competing scenarios that preoccupied counsel at the time jury instructions were being discussed, the first scenario being that Co-wan shot Knox and the second being that Giles was the shooter. Curiously, she also invokes as support for her position comments made by defense counsel not at the time jury instructions were being discussed, but at the time the defense successfully moved for a judgment of acquittal as to first-degree murder.

With respect to the allegations of selective quotation, the majority opinion in-eludes a discussion of everything of which we are aware that defense counsel said on the critical subjects, namely whether the instruction on self-defense and defense of a third party were being sought conditionally or unconditionally and whether counsel wanted these instructions to apply to any charge other than felony murder. Chief Judge Rogers claims somewhat vaguely that the positions of counsel evolved as the trial proceeded, but her opinion does not contain a single passage from the record in which Cowan’s attorneys clearly (or even implicitly) requested these instructions at all for second-degree murder, or unconditionally for felony murder. If an unconditional request for such instructions existed, it would surely appear prominently in the dissent.

Contrary to our colleague’s suggestion, the majority has not ignored the fact— undisputably a critical one — that counsel were focusing, in making their requests for jury instructions, on the existence of two different hypotheses as to the identity of the shooter. See the discussion at pp. 499-500, supra. Indeed, as we have endeavored to show, it was the defense attorneys’ concern that their prime theory (“Giles did it”) must not be compromised that led them to condition so narrowly their requests for instructions on self-defense and on defense of a third party.

Finally, the dissent states, citing Supp. Rec. 6, Tr. 88-89, that Cowan’s attorneys “argued that appellant had acted in self-defense and was entitled to a self-defense instruction” at the time they moved, successfully, for a judgment of acquittal on the charge of first-degree murder. That discussion, however, was not about jury instructions, but about the MJOA. We have found no indication in the cited transcript pages (or anywhere else in the argument on the MJOA) that Cowan’s counsel requested a self-defense jury instruction.⁹ The position of Cowan’s attorneys in the circumstances under which they sought such an instruction was articulated at the time instructions were discussed, and is set forth exhaustively in Part II of this opinion.

y.

CONCLUSION

For the foregoing reasons, the case is remanded to the trial court, which is directed to vacate one of Cowan’s two murder convictions. In all other respects, Co-wan’s convictions must be and each is hereby

Affirmed. 10

1 . The trial judge had granted a defense motion for judgment of acquittal on the original charge of first degree premeditated murder.

2 .By the time of Cowan’s trial, Giles had also entered a plea of guilty to a second murder, and he had a charge of armed rape pending against him in Maryland. A second murder charge against Cowan was severed from this one. The activities of Cowan and Giles during the autumn of 1986 are also described in Belton v. United States, 581 A.2d 1205 (D.C.1990).

3 . When police discovered the decedent’s body, his hand was still in his pocket. Also in that pocket was a hammer.

4 . The defense contended that Giles received a favorable plea offer because he was not required to plead to any armed offense carrying a mandatory minimum penalty. Giles responded that he faced thirty years and that this was not a "sweet deal.”

5 . We use the word "apparently” because, in his reply brief in this court, Cowan failed altogether to contest the government's position that the request for instructions on self-defense and defense of a third person were conditioned on the judge's giving an "aiding and abetting" instruction as to felony murder. At oral argument, however, Cowan sought to refute the government’s contentions on that issue.

6 . In. general, Rule 30 requires that requests for instructions be submitted prior to closing argument. Shreeves v. United States, 395 A.2d 774, 786-87 (D.C.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); United States v. Watson, 282 U.S.App.D.C. 305, 309-10, 894 F.2d 1345, 1349-50 (1990). The judge's further discussion of instructions after argument did not constitute a waiver of the rule. Watson, supra, 282 U.S.App.D.C. at 309-10, 894 F.2d at 1349-50; see also Life Ins. Co. v. San Francisco, 84 U.S. (17 Wall) 672, 679, 21 L.Ed. 698 (1873). Even if Cowan had requested instructions after closing argument different from those which he requested prior to argument, there is at least a substantial question whether the post-argument request would have been timely.

7 . The government also argues that the evidentia-ry predicate for instructions on self-defense or defense of a third person was insufficient, that Cowan’s position requires a “bizarre reconstruction" of the evidence, and that a drug dealer who arms himself may not claim self-defense on a record such as this one. We need not and do not reach these issues.

8 . Since Cowan’s attorneys insisted with unrelenting rigor that self-defense and defense of a third person were not a part of the defendant’s theory of the case, this is not a case in which the court refused to instruct on the defendant’s theory. Cf., e.g., Gethers v. United States, 556 A.2d 201, 204 (D.C.1989) (instruction on defendant’s theory of the case must ordinarily be given) and the other authorities for this proposition cited by our dissenting colleague. Post at 514. Indeed, the judge gave a detailed instruction on the defense theory of the case (which included assertions that Cowan did not know Knox, was not selling drugs, and did not know Giles would shoot Knox) even though there was no eviden-tiary predicate for a substantial part of the instruction.

9 . Given the normal sequence of events at trial, such a request at that stage of the proceedings would have been quite unusual.

10 . Cowan’s remaining contentions are unpersuasive. He claims that the judge should have directed the jury to acquit him on the felony murder charge, but there was ample evidence that Cowan shot Knox while he and Giles were attempting to distribute cocaine, and the trial judge properly denied his motion for judgment of acquittal. In determining whether that motion should have been granted, we consider the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw reasonable inferences. Langley v. United States, 515 A.2d 729, 731 (D.C.1986). The jury could reasonably conclude that "the lethal act,” i.e., the shooting of Knox, was in furtherance of the predicate offense of attempted distribution of cocaine, and that the attempted distribution was still ongoing when the fatal shot was fired. See, generally, United States v. Heinlein, 160 U.S.App.D.C. 157, 168-69, 490 F.2d 725, 736-37 (1973).

Cowan also complains that the trial judge failed to instruct the jury, in relation to the felony murder count, that the killing must be in furtherance of the felony. The judge told the jurors, instead that in order to convict Cowan, they were required to find that "the defendant killed the deceased while perpetrating or attempting to perpetrate the offense of distribution of a controlled substance." We agree with Cowan that the formulation which he now suggests is more appropriate. See, e.g., Christian v. United States, 394 A.2d 1, 49 (D.C.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979). Cowan did not object to the instruction as given, however, and Super.Ct.Crim.R. 30 and the "plain error” rule preclude reversal on these facts.