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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-914
DIANNA Y. LALCHAN, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF1-4987-13)
(Hon. Ronna L. Beck, Trial Judge)
(Argued June 1, 2022 Decided September 15, 2022)
Daniel Gonen, Public Defender Service, with whom Samia Fam and Mikel- Meredith Weidman, Public Defender Service, were on the brief, for appellant.
Katherine M. Kelly, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, and Cynthia G. Wright, Assistant United States Attorneys, were on the brief, for appellee.
Cindene Pezzell, William C. Perdue, and Sean A. Mirski were on the brief for Organizations Against Domestic Violence, amicus curiae in support of appellant.
Before EASTERLY, MCLEESE, and HOWARD, Associate Judges. 2
MCLEESE, Associate Judge: Appellant Dianna Y. Lalchan challenges her
convictions for voluntary manslaughter while armed and possession of a firearm
during a crime of violence. We vacate and remand.
I. Factual Background
Certain basic facts were undisputed at trial. Ms. Lalchan shot and killed her
husband, Christopher Lalchan. Ms. Lalchan fired three bullets, one of which hit a
wall and one of which hit the floor. When the final bullet was fired, Mr. Lalchan
was facing Ms. Lalchan and moving forward. That bullet, which was fatal, hit Mr.
Lalchan in the back of the head. Mr. Lalchan was near to the floor when he was
struck by that bullet. Ms. Lalchan was some distance away from Mr. Lalchan at the
time of the fatal shot.
The dispute at trial was whether Ms. Lalchan acted with premeditated and
deliberate malice or instead acted either in lawful self-defense or in good-faith but
unreasonable self-defense. The United States argued that Ms. Lalchan murdered
Mr. Lalchan, mainly for financial and personal reasons surrounding their potential
divorce. In support of that argument, the United States relied on the fact that Mr.
Lalchan had been shot in the back of the head. The United States also elicited 3
evidence that Ms. Lalchan was the breadwinner in the relationship and was worried
about having to pay Mr. Lalchan alimony and splitting their property after their
divorce. The United States also elicited evidence that Ms. Lalchan had realized
during the marriage that she was attracted to women, and she was concerned that
Mr. Lalchan would tell Ms. Lalchan’s conservative family about that.
Ms. Lalchan testified that she shot Mr. Lalchan because she feared for her life.
In support of that testimony, Ms. Lalchan introduced the following evidence. Early
in their relationship, Mr. Lalchan became angry and smashed items such as Ms.
Lalchan’s laptop. Mr. Lalchan’s violent behavior later escalated to shoving and
slapping. The abuse culminated in Mr. Lalchan strangling Ms. Lalchan on several
occasions.
The first two times Mr. Lalchan strangled Ms. Lalchan occurred during
arguments. Before he strangled her, Mr. Lalchan’s demeanor would suddenly
change: he became quiet, shut down emotionally, and focused intently on stopping
himself from exploding. Ms. Lalchan described that change as “like the Hulk” (the
Marvel Comics character) when he is trying to hold himself back. In two of the
incidents, Mr. Lalchan strangled Ms. Lalchan until she passed out. 4
Mr. Lalchan strangled Ms. Lalchan a third time about two months before the
shooting. In that incident, Mr. Lalchan lifted Ms. Lalchan by the neck with one hand
while holding a gun with the other. Mr. Lalchan threw Ms. Lalchan into a wall and
hit her with the gun. After that incident, Ms. Lalchan began looking into getting a
divorce.
On the night of the shooting, the Lalchans were arguing about the possibility
of divorce. Mr. Lalchan threw a bicycle, punched a television, grabbed his gun, and
threatened to commit suicide. Ms. Lalchan got the gun and put it down, but the
argument continued. Mr. Lalchan raised a mop handle over his head, threatening
Ms. Lalchan with it. Ms. Lalchan grabbed the mop handle, and the two tussled over
it. Eventually, Ms. Lalchan let Mr. Lalchan know that “this was it” and that he would
not have any more chances. Mr. Lalchan said, “Do I need to shut you up?” He then
shut down like he had before and came at Ms. Lalchan. Fearing that Mr. Lalchan
might kill her, Ms. Lalchan grabbed the gun and shot Mr. Lalchan.
Ms. Lalchan introduced evidence that she had told others about Mr. Lalchan’s
physical abuse. She also introduced evidence, including photographs, of injuries
that she testified were caused by the abuse. 5
Dr. Mary Ann Dutton, a clinical psychologist specializing in domestic
violence, testified as a defense expert. In brief, she testified as follows. Dr. Dutton
focused her testimony more specifically on violence between intimate partners. She
testified that “Battered Woman Syndrome” is a legal term, not a diagnosis of a
psychological disorder. She also discussed a number of common misconceptions
that people have about women who have been battered, including that such women
are usually unemployed, meek, and financially dependent.
Dr. Dutton testified that intimate-partner violence commonly escalates over
time. Battered women often do not leave or report abuse, because they are
embarrassed, fear that such steps might make the abuse worse, or hope that things
will improve. Battered women who try to leave the relationship are at particularly
high risk, facing a risk of abuse approximately four times greater than that faced by
women who remain in the relationship. A woman who has previously been strangled
is seven times more likely to be killed than a woman who has not previously been
strangled.
Dr. Dutton further testified that people who have suffered intimate-partner
violence learn to identify cues indicating that violence is about to occur, such as a
look or a tone of voice. Over time, such cues can become all that is needed to put 6
people who have suffered life-threatening abuse in fear for their lives. Such cues
can cause an automatic response leading the person to fight back or flee.
The jury acquitted Ms. Lalchan of first-degree murder and second-degree
murder but found her guilty of voluntary manslaughter while armed and possession
of a firearm during a crime of violence.
II. Denial of the Requested Instruction
Ms. Lalchan argues that the trial court committed reversible error by declining
to instruct the jury that it could consider the effects of battery in assessing whether
Ms. Lalchan’s perception of danger was objectively reasonable. We agree.
A. Procedural Background
Ms. Lalchan asked the trial court to instruct the jury that, in determining
whether Ms. Lalchan acted in lawful self-defense, the jury should consider whether
Ms. Lalchan acted as a “reasonable woman with a history of trauma and the effects
of battery.” The trial court denied the motion, concluding that the evidence that Ms.
Lalchan suffered effects from prior battery could be considered in determining 7
whether Ms. Lalchan subjectively perceived danger but had no bearing on whether
Ms. Lalchan’s perception was objectively reasonable. In the trial court’s view,
permitting such evidence to be considered on the issue of objective reasonableness
would be contrary to this jurisdiction’s rejection of the defense of “diminished
capacity.” E.g., Bethea v. United States, 365 A.2d 64, 83-92 (D.C. 1976).
B. Standard of Review
“[W]e review de novo whether challenged jury instructions adequately state
the law.” Fleming v. United States, 224 A.3d 213, 219 (D.C. 2020) (en banc). The
“refusal to grant a request for a particular instruction is not a ground for reversal if
the court’s charge, considered as a whole, fairly and accurately states the applicable
law.” Fearwell v. United States, 886 A.2d 95, 101 (D.C. 2005) (internal quotation
marks omitted). “[A] special instruction is warranted when there is evidence of
special facts sustaining a rational defensive theory.” Id. at 100 (brackets and internal
quotation marks omitted). 8
C. Analysis of the Trial Court’s Ruling
As we have previously noted, the trial court concluded that evidence of the
effects of battery was not admissible to show that Ms. Lalchan’s perception of
danger was objectively reasonable. The United States does not defend that ruling as
correct. We conclude that the trial court’s ruling was incorrect.
Deadly force may lawfully be used in self-defense only if the defendant
“actually believe[s] and reasonably believe[s] that [the defendant was] in imminent
peril of death or serious bodily harm.” Dawkins v. United States, 189 A.3d 223, 232
(D.C. 2018) (internal quotation marks omitted). The “right of self-defense, and
especially the degree of force [that a person] is permitted to use to prevent bodily
harm, is premised substantially on the [person’s] own reasonable perceptions of what
is happening.” Fersner v. United States, 482 A.2d 387, 391 (D.C. 1984). Such
perceptions may include “an enhanced sense of peril based on personal knowledge
that the attacker has committed prior acts of violence.” Id. (internal quotation marks
omitted). We have therefore “recognized the relevance of expert testimony relating
to battered woman’s syndrome . . . to establish the reasonableness of a complainant’s
fear in a case where the complainant claims self-defense to a charge of violence
against [the complainant’s] abuser.” Earl v. United States, 932 A.2d 1122, 1128 9
(D.C. 2007) (internal quotation marks omitted). We see no basis for a different
conclusion where, as in the present case, a defendant is relying on such evidence in
support of a claim of self-defense. See Parker v. United States, 155 A.3d 835, 852
(D.C. 2017) (Ferren, J., concurring) (“[I]n the case of a ‘battered spouse’ defense, a
wife’s misperception that her husband was imminently threatening her life might
justify a finding that her stabbing him was reasonable under the circumstances.”);
see also, e.g., State v. Elzey, 244 A.3d 1068, 1083 (Md. 2021) (“The cyclical nature
of an intimate battering relationship enables a battered spouse to become an expert
at recognizing the warning signs of an impending assault from [the abuser]—signs
frequently imperceptible to outsiders. For some victims, the sign may be ‘that look
in the eye’ . . . .”) (internal quotation marks omitted); United States v. Lopez, 913
F.3d 807, 822 (9th Cir. 2019) (“Fear which would be irrational in one set of
circumstances may be well-grounded if the experience of the defendant with those
applying the threat is such that the defendant can reasonably anticipate being harmed
on failure to comply.”) (emphasis and internal quotation marks omitted); see
generally, e.g., Mathews v. United States, 539 A.2d 1092, 1093 (D.C. 1988) (per
curiam) (evidence of “defendant’s life experience and background as it bears on
[defendant’s] rational perceptions” is relevant to objective reasonableness of action
allegedly taken in self-defense). 10
In denying the requested instruction, the trial court indicated that the
instruction would be contrary to this jurisdiction’s prohibition of diminished-
capacity defenses. We disagree. We have formulated the concept of diminished
capacity in a variety of ways. See, e.g., Jackson v. United States, 76 A.3d 920, 933-
36 (D.C. 2013) (discussing various formulations). One common thread in those
formulations is that diminished-capacity defenses rely on the idea that the defendant
suffers from a mental “abnormality” that falls short of legal insanity. Id. In the
present case, however, Dr. Dutton made clear that she was not testifying that Ms.
Lalchan was suffering from a mental abnormality or illness. Rather, Dr. Dutton
explained that persons who have been subjected to intimate-partner abuse can learn,
both consciously and unconsciously, to perceive signs that such abuse may be
coming, just as children can learn to sense from facial cues that their parents are very
upset with them. Persons who have been subjected to intimate-partner abuse also
can develop automatic responses to such signs, through the process of conditioned
learning. These are ordinary human reactions, not an abnormal mental state or
disorder. Dr. Dutton’s testimony thus did not run afoul of the prohibition on
introducing evidence of diminished capacity. Cf. Jackson, 76 A.3d at 935
(prohibition on diminished-capacity defenses does not “sweep in . . . defenses that
have nothing to do with a claim of diminished capacity”) (citing Ibn-Tamas v. United 11
States, 407 A.2d 626, 631-40 (D.C. 1976) (expert testimony about battered-women
syndrome was potentially admissible on issue of self-defense)).
D. Alternative Grounds for Affirmance
The United States argues that the trial court’s ruling can be affirmed on four
alternative grounds. In appropriate circumstances, this court can affirm a trial
court’s ruling on a ground not relied upon by the trial court. E.g., Randolph v. United
States, 882 A.2d 210, 218 (D.C. 2005). That principle has limits, however. We must
be sure to avoid procedural unfairness, and we may not disregard the discretionary
authority of the trial court. Id. at 218-19. We are not persuaded by the alternative
grounds for affirmance presented by the United States.
1. Wording of the Defense Request
The United States argues that the requested instruction was vague, poorly
worded, and slanted toward the defense. The United States did not make those
arguments in the trial court, and they were not the basis of the trial court’s ruling. If
the United States had made those arguments in the trial court, the defense and the
trial court would have had the opportunity to address them, making any necessary 12
revisions. Cf., e.g., Stack v. United States, 519 A.2d 147, 156 (D.C. 1986)
(“Assuming, as the government suggests, that the first paragraph of the requested
instruction would have unduly emphasized the defense version of the evidence, the
judge easily could have made appropriate modifications.”).
In requesting the instruction, the defense adequately drew the trial court’s
attention to the legal principle on which the defense was relying: expert testimony
about battery and its effects was relevant to the objective reasonableness of Ms.
Lalchan’s conduct. The trial court denied the request not because of issues with the
wording of the requested instruction but rather because the trial court believed—
incorrectly, in our view—that the request rested on a legally invalid theory. We
conclude that it would be procedurally unfair to affirm the trial court’s ruling on the
basis of perceived deficiencies in the precise wording of the requested instruction.
See, e.g., Pannu v. Jacobson, 909 A.2d 178, 197 (D.C. 2006) (“Even though a trial
court is under no obligation to give any particular requested instruction, if the request
directs the court’s attention to a point upon which an instruction to the jury would
be helpful, the court’s error in failing to charge may not be excused by technical
defects in the request.”) (brackets and internal quotation marks omitted); Whitaker
v. United States, 617 A.2d 499, 507-08 (D.C. 1992) (on rehearing) (“Assuming,
without deciding, that defense counsel’s proposed instruction was not phrased with 13
sufficient precision, and that it ought not to have been given in counsel’s exact
words, this did not obviate the necessity for some effective reinstruction . . . .”).
For essentially the same reasons, we are not persuaded by the United States’s
argument that the defense’s request did not suffice to preserve for appeal the
arguments that Ms. Lalchan advances in this court.
2. Lack of a Diagnosis
The United States suggests that the evidence did not support the requested
instruction, because Dr. Dutton never diagnosed Ms. Lalchan with battered-woman
syndrome. We disagree. Dr. Dutton explained that she was not testifying about a
diagnosed mental illness, but rather was testifying about intimate-partner violence
and its common effects. In any event, we have previously held that Dr. Dutton’s
testimony about battered-woman syndrome, offered in a different case on behalf of
the prosecution, was admissible even though Dr. Dutton had not examined or
diagnosed the complaining witness. Nixon v. United States, 728 A.2d 582, 591-95
(D.C. 1999). We see no basis for a different conclusion here. 14
3. Other Instructions
The United States argues that other instructions adequately communicated the
relevant law to the jury. We conclude to the contrary.
The trial court’s instructions to the jury stated that self-defense applied if Ms.
Lalchan “actually believed that she was in danger of serious bodily injury and
actually believed that the use of deadly force was necessary to defend against that
danger and both of those beliefs were reasonable.” The instructions further
explained that the question was whether Ms. Lalchan, “under the circumstances as
they appeared to her at the time of the incident, actually believed she was in
imminent danger of bodily harm and could reasonably hold that belief.” Finally, the
instructions informed the jury that evidence of “past acts of violence” by Mr.
Lachlan could bear on the “reasonableness” of Ms. Lalchan’s “fear for her safety.”
In our view, the instructions as a whole did not adequately explain to the jury
that the objective reasonableness of Ms. Lalchan’s conduct could be understood in
light of the effects of any prior abuse on Ms. Lalchan’s perceptions at the time of the
incident. In fact, it would be quite surprising if the instructions as a whole
communicated that principle to the jury. In denying the defense request, the trial 15
court held that the requested instruction was contrary to law. Presumably, the trial
court did not intend the instructions to communicate a principle that the trial court
believed was legally incorrect.
We hold that a specific instruction on the effect that intimate-partner violence
can have on reasonable perceptions of danger was required in the circumstances of
this case. See, e.g., Smith v. State, 486 S.E.2d 819, 823 (Ga. 1997) (“We take this
opportunity to announce the rule that when a battered person syndrome self-defense
claim has been properly established, the court should give specific jury instructions
on justification by self-defense which are tailored to explain how the defendant’s
experiences as a battered person affected that defendant’s state of mind at the time
of the killing.”); State v. Gartland, 694 A.2d 564, 575 (N.J. 1997) (per curiam) (“The
charge on self-defense should . . . have been tailored to the circumstances of the
case. . . . At a minimum, the jury . . . should have been asked to consider whether,
if it found such to be the case, a reasonable woman who had been the victim of years
of domestic violence would have reasonably perceived on this occasion that the use
of deadly force was necessary to protect herself from serious bodily injury.”). 16
4. Harmless Error
The United States argues that the denial of the requested instruction was
harmless. We disagree.
The parties dispute whether harmlessness should be assessed under the
standard generally applicable to constitutional errors or the less-stringent standard
applicable to non-constitutional errors. Compare Chapman v. California, 386 U.S.
18, 23-24 (1967), with Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). We
need not address that issue, because we hold that the failure to give the requested
instruction was harmful under the Kotteakos standard. To hold a non-constitutional
error harmless, we “must find it highly probable that the error did not contribute to
the verdict.” Moghalu v. United States, 263 A.3d 462, 472 (D.C. 2021) (brackets
and internal quotation marks omitted). We are unable to make such a finding in this
case.
Ms. Lalchan’s sole defense was that she shot Mr. Lalchan in self-defense. The
acquittals indicate that the jury accepted that Ms. Lalchan may have acted out of a
subjective fear of injury, rather than with premeditation or unmitigated malice. The
guilty verdict on manslaughter, however, indicates that the jury concluded that Ms. 17
Lalchan did not have an objectively reasonable fear of injury. For the reasons we
have explained, the denial of the requested instruction left the jury without adequate
guidance about the potential relevance of Dr. Dutton’s testimony to that issue.
In arguing that any error on this point was harmless, the United States asserts
that defense counsel was able to argue to the jury in closing argument that Dr.
Dutton’s testimony about the effects of intimate-partner abuse was relevant to the
objective reasonableness of Ms. Lalchan’s conduct. We note to the contrary that
defense counsel never explicitly asserted that point to the jury, presumably because
the trial court had ruled that the law was otherwise. In any event, even if defense
counsel had conveyed the point in closing arguments, there is a critical difference
between instructions from the court and the arguments of counsel. See, e.g., Stack,
519 A.2d at 156 (defense counsel’s ability to argue point “to the jury in closing does
not cure the [instructional] error since the jury must be instructed on the legal
principles which are to guide its deliberations, and the court has the obligation to
state those principles in the instructions”); see also Boyde v. California, 494 U.S.
370, 384 (1990) (“[A]rguments of counsel generally carry less weight with a jury
than do instructions from the court. The former . . . are likely viewed as the
statements of advocates; the latter . . . are viewed as definitive and binding
statements of the law.”); Carter v. Kentucky, 450 U.S. 288, 304 (1981) (“Arguments 18
of counsel cannot substitute for instructions by the court.”) (brackets and internal
quotation marks omitted).
In sum, we conclude that the refusal to give the requested instruction was
harmful error.
III. Other Issues
We briefly discuss two additional issues that might arise in any retrial. Both
issues involve the trial court’s overruling of objections to the prosecutor’s closing
argument. First, Ms. Lalchan challenges the prosecutor’s comment that it was
unclear when certain photographs introduced by Ms. Lalchan had been taken,
because those photographs, as admitted into evidence, lacked metadata indicating
their date. Ms. Lalchan represented in the trial court that the photographs, as
provided to the United States in discovery, contained such metadata. The United
States has not disputed that representation. We agree that this comment was
impermissible. See, e.g., Powell v. United States, 880 A.2d 248, 258 n.23 (D.C.
2005) (reminding prosecutors “to guard against inviting inferences of fact arguably
contrary to evidence of which they are aware but which is not of record in a case”). 19
Second, Ms. Lalchan objects to the prosecutor’s suggestion that Ms. Lalchan’s
testimony referring to the Hulk was the product of coaching by defense counsel.
Specifically, the prosecutor argued,
[O]ne of the things that you won’t hear . . . [in Ms. Lalchan’s statement to the police] is . . . the word Hulk. That is a new creation. . . . . Now, you had a chance to see [Ms. Lalchan] on the stand when she was testifying. And, when she testified for the defense, after she’d been rehearsed and practiced and talked to . . . .
We agree that this argument was impermissible. See, e.g., Diaz v. United States, 716
A.2d 173, 180 (D.C. 1998) (concluding that prosecutor impermissibly urged jury to
draw adverse inference from defendant’s exercise of right to counsel, where
prosecutor argued that defendant made story up after “consultation with his attorney
to tell you the story that he told you here today”) (brackets, ellipses, and internal
For the foregoing reasons, we vacate the judgment of the Superior Court and
remand the case for further proceedings.
So ordered.