United States v. William M. Dixon

419 F.2d 288, 135 U.S. App. D.C. 401, 1969 U.S. App. LEXIS 13086

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 27, 1969
• Docket: 22324_1
• Status: Published

Opinions

PER CURIAM:

Appellant was convicted, in a trial by jury, of manslaughter (22 D.C.Code § 2405 (1967)) and carrying a dangerous weapon without a license (22 D.C.Code § 3204 (1967)). In this appeal he challenged the validity only of the manslaughter conviction. Since we find no reversible error in the proceedings below, his conviction must be affirmed.

An argument developed between two of appellant’s friends during a social gathering at his (appellant’s) home. After both parties to the altercation produced and were brandishing knives, appellant, in an attempt to quell the disagreement, went into a bedroom and returned with a revolver and ordered his friends out of his home (Tr. 19-20). The friends adjourned to the street but continued their quarrel there. Appellant followed the assailants into the street and, in a second attempt to halt the fracas, told them that he would shoot between them if either attempted to advance on the other (Tr. 22, 32-34, 36). At that point one of the two individuals involved in the argument (Mr. Johnson) shouted at appellant that “you don’t have a damn thing to do with this” (Tr. 72, 132-33), whereupon appellant jumped off the steps in front of his home and pushed Mr. Johnson in the chest. Simultaneously, a shot was fired from the gun appellant still held in his hand. The bullet hit Mr. Johnson in the neck causing his death.

At trial, appellant’s sole defense was “accidental shooting” (Tr. 137). The prosecution’s theory was that the shooting was intentional and it sought to convict appellant of murder in the second degree. The trial judge charged the jury on all the essential elements of second-degree murder (Tr. 160-61) and of the lesser included offense of manslaughter (Tr. 162-63). In addition, he also charged the jury on accidental death (Tr. 166). Subsequently, during their deliberation the jury sent a note to the court requesting additional instructions on manslaughter and accidental death. The trial judge then repeated his manslaughter charge, mentioning lack of malice but leaving out the specific mention of adequate provocation or sudden heat of passion that he had included in his earlier charge. The judge also repeated his earlier charge on the circumstances necessary to find accidental killing. The court then queried the jury: “Does that answer your question?” After an affirmative response he continued on to say: “Does either counsel have anything to add?” (Tr. 169.) Following a negative response to this question the jury retired and later brought back a verdict of guilty of manslaughter and carrying a dangerous weapon.

On appeal appellant advances a two-pronged argument for reversal of his manslaughter conviction. Initially, he argues that the evidence, as a matter of law, does not establish the elements necessary for a manslaughter conviction. In other words, appellant claims that the jury should have been allowed a choice only between guilty or not guilty of second-degree murder. We do not agree. We feel that the inebriant atmosphere, the heated arguments, and the bantering back and forth clearly established sufficient evidence for a jury to be able to find appellant guilty of manslaughter. Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, cert. denied, 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389 (1953); Bishop v. United States, 71 U.S.App.D.C. 132, 107 F.2d 297 (1939).

Secondly, appellant argues that the trial judge erred by not including all the elements of manslaughter in his second instruction. We find this argument unpersuasive. It has been held that appellant faces a heavy burden in objecting to instructions on appeal that he has acquiesced in at trial. Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R.2d 1074 (1950); Kelly v. United States, 124 U.S.App.D.C. 44, 361 F.2d 61 (1966); Fed.R.Crim.P. 30. In any event, we find no reversible error in the instructions given since the heat of passion and adequate provocation were stressed in the earlier instruction and since the defense counsel was given specific opportunity to suggest any additions which he thought might be helpful. Thus, it seems clear that the jury was fully cognizant of the fact that, based upon all the evidence and the instructions from the court, it had three separate choices, (1) accidental killing, (2) second-degree murder, or (3) manslaughter. We find no rational basis upon which to disturb their choice. Appellant’s conviction therefore must be

Affirmed.