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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CF-919
                                                                          07/26/2018

                        JONATHAN DAWKINS, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.


                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF1-12634-12)

                    (Hon. Russell F. Canan, Associate Judge)

(Argued September 20, 2016                                Decided July 26, 2018)

      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.
                                           2

        EASTERLY, Associate Judge: 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.




   1
       D.C. Code § 22-2105 (2013 Repl.).
                                         3

                       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.
                                         4




      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,
                                         5

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
                                           6

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-

      2
        Mr. Cheek also tried to defuse the situation by urging them, “Black man,
black man. No need to fight.”
                                         7

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




      3
         The only other eyewitness, Justin Harbison, was sitting on his front stoop
at the time of the incident (around 12:30 a.m.) and observed the fight illuminated
by street lights, from across four lanes of traffic, with cars somewhat blocking his
view. He testified that he “saw the punch get thrown”—he could not say by
whom—“and then [he] couldn‟t really tell what happened after that.”
       The government also presented the testimony of Louis Falls, who testified
that he had heard about the stabbing from Mr. Dawkins and that Mr. Dawkins had
not said that he was afraid of Mr. Brisbon or that he thought Mr. Brisbon had a
weapon. But Mr. Falls‟s account of the incident—specifically that Mr. Dawkins
stabbed Mr. Brisbon immediately after the first punch—did not align with Mr.
Cheek‟s eyewitness account, and his testimony included details (e.g., Mr.
Dawkins‟s post-confession avoidance of Mr. Falls‟s calls) that were contradicted
by documentary evidence (Mr. Dawkins‟s phone records). Mr. Falls also admitted
that he had traded information that Mr. Dawkins purportedly shared with him for
the possibility of leniency with respect to his own pending drug charges.
(Arguably, this plan was successful; instead of being charged with possession with
intent to distribute crack cocaine, carrying a 30-year maximum sentence, he was
charged with a 180-day misdemeanor.) And Mr. Falls admitted both that he did
not “have a problem lying to the police if it [would] help [him] out of a bad
situation,” and that he had done so before.
                                        8

      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


      4
         On cross-examination, the prosecutor focused on this stage of the
encounter and pressed Mr. Dawkins about his decision not to immediately walk
away from Mr. Brisbon and on to the gas station where Mr. Dawkins and Mr.
Cheek had planned to buy cigarettes.
      5
          Compare supra note 2.
                                          9

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

   6
       The full “Redbook” instruction reads:
              The law does not require a person to retreat or consider
              retreating when s/he actually and reasonably believes that s/he
              is in danger of death or serious bodily harm and that deadly
                                                                     (continued…)
                                          10

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




(…continued)
           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 [name of defendant] acted
           reasonably, you should therefore consider whether s/he could
           have taken those steps, consistent with his/her own safety.
Criminal Jury Instructions for the District of Columbia, No. 9.503 (5th ed.
rev. 2013).
                                         11

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




      7
         The government also argued that there might in fact be a duty to retreat
before using nondeadly force, but it later abandoned that argument.
      8
          The defense proposal replicated language from the standard instruction
explaining that there is no duty to retreat in the deadly force context, although a
jury may take into account the defendant‟s ability to retreat in assessing his self-
defense claim. It then distinguished a situation where a defendant faced nondeadly
force and explained that there is no duty to “take . . . reasonable steps, such as
stepping back or walking away prior to using nondeadly force.” Lastly, it
explained that the jury should “first” consider whether Mr. Dawkins “was
authorized to use nondeadly force under the circumstances,” and second and
“[s]eparately, in deciding whether Mr. Dawkins acted reasonably in using deadly
force,” the jury “should . . . consider whether he could have taken those steps,
consistent with his own safety after the nondeadly force was used in this case.”
(emphases added).
                                         12

      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.
                                        13

                          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.”
                                           14




       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 stabbed Mr. Brisbon to defend himself; and when Mr. Brisbon

stopped punching him and turned away, he took his first opportunity to retreat and

run.



       But in rebuttal the government returned to its argument that Mr. Dawkins

could have avoided the use of deadly force by retreating earlier. The government

focused on Mr. Dawkins‟s failure to walk away at the outset, before the argument

got physical:


                       And while the defendant doesn‟t have a duty to back
                away if he believes that his life is being threatened, he should
                take reasonable steps before taking a human life. And so even
                                             15

                  the defendant himself admitted that he could have walked in the
                  other direction, towards the gas station. There were . . .9

                         He didn’t have to walk away. But because he didn’t—
                  because even he admitted—and I almost forgot this—the
                  defendant himself admitted that if it was just him and the
                  driver, it would have been a fair fight. . . .

                        But the defendant was the one who aggressively went
                  over to the car. . . . [T]he reason this all starts . . . [was]
                  because of the way the defendant approached the car; it was
                  because of the exchange that occurred between Mr. Brisbon
                  and the defendant. It’s because they walked to the back of the
                  car.

(emphases added).


         After deliberating for a full day, 10 the jury found Mr. Dawkins guilty. This

appeal followed.



                                         II. Analysis



         Mr. Dawkins challenges the trial court‟s self-defense instruction in this case

on the ground that it erroneously permitted the jury to consider his failure to walk

away from Mr. Brisbon at the wrong time—before he employed deadly force or

         9
              Defense counsel interrupted with an objection, which was overruled by the
court.
         10
          During this time the jury sent a note expressing uncertainty that it could
reach a unanimous verdict. The trial court asked it to continue deliberating.
                                       16

had any possible justification to do so.    To assess whether the trial court‟s

instruction provided the jury with adequate guidance, we must first consider the

law of self-defense, in particular how and when a defendant‟s ability to retreat

from conflict can be considered.



                            A. The Law of Self-Defense



      A successful claim of self-defense overrides the mens rea required to

commit the charged crime, and thus makes the defendant‟s action not criminal. To

find a defendant guilty of murder or voluntary manslaughter, the jury must

conclude the defendant committed the actus reus of killing with the requisite mens

rea. See Morissette v. United States, 342 U.S. 246, 251 (1952) (Crime is “a

compound concept, generally constituted only from concurrence of an evil-

meaning mind with an evil-doing hand”); Rose v. United States, 535 A.2d 849, 852

(D.C. 1987) (Generally, “a crime consists in the concurrence of prohibited conduct

and a culpable mental state.” (quoting 1 WHARTON‟S CRIMINAL LAW § 27, at

135 (C. Torcia 14th ed. 1978))).11 This court has defined that mens rea as some


      11
         Concurrence has no definitive definition but seems to be understood at
times as requiring simultaneity, see, e.g., 1 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 6.3(a) (3d ed.) (discussing Sabens v. United States, 40 App. D.C.
440, 444 (1913)), and at other times as requiring “actuation,” id. at § 1.2(b)
                                                                   (continued…)
                                           17

form of malice,12 Comber v. United States, 584 A.2d 26, 35-42 (D.C. 1990) (en

banc)), a term of art that encompasses multiple mental states, id. at 38-41, that

appear to fall within the range of purpose to recklessness, but does not encompass

negligence, see Carrell v. United States, 165 A.3d 314, 321-22, 324 (D.C. 2017)

(en banc) (endorsing the Model Penal Code hierarchy of mens rea terms). If a

defendant kills another in lawful self-defense, however, the act, even if purposeful,

is deemed to have been committed without malice: “even an intentional killing, if

it comports with legally accepted notions of self-defense is not malicious; [instead]

it is excused and accordingly no crime at all.” Comber, 584 A.2d at 41 (internal

citation omitted)).




      “Where a defendant has presented any evidence that she acted in self-

defense, the government bears the burden of proving beyond a reasonable doubt



(…continued)
(“Generally, it may be said that the defendant‟s [mens rea] must concur with his
[actus reus], in the sense that the former actuate the latter.”); see also id. at § 6.3(a)
(providing examples and noting exceptions).
      12
          In the case of voluntary manslaughter, this malice is circumstantially
mitigated. Comber, 584 A.2d at 38-41; Jackson v. United States, 76 A.3d 920, 936
n. 8 (D.C. 2013) (“[V]oluntary manslaughter is not, precisely, a killing
without malice aforethought but rather a killing „with a state of mind which, but for
the presence of legally recognized mitigating circumstances, would render the
killing murder.‟”).
                                         18

that the defendant did not act in self-defense.”13 Williams v. United States, 90 A.3d

1124, 1128 (D.C. 2014). The government may carry this burden by showing that a

defendant who employed deadly force either did not reasonably believe that she

was in imminent danger of death or serious bodily injury,14 or “used greater force

than she actually and reasonably believed to be necessary under the

circumstances.” Id.; Richardson v. United States, 98 A.3d 178, 187 (D.C. 2014)

(explaining that the defendant “was entitled to an acquittal on th[e] basis [of self-

defense] only if the jury concluded (1) that he honestly believed that, when he

stabbed [the decedent], he was in imminent danger of serious bodily harm or death,

and that he had to use lethal force to save himself from that harm and (2) that both

beliefs were objectively reasonable”) (emphasis added); see Ewell v. United States,

72 A.3d 127, 131 (D.C. 2013) (“[W]here an accused, claiming self-defense, uses

deadly force, he must—at the time of the incident—actually believe and




      13
          However, “where the government proves beyond a reasonable doubt that
the defendant was „the [first] aggressor‟ or „provoked the conflict upon herself,‟
the fact-finder need not even reach the core self-defense inquiry.” Parker v.
United States, 155 A.3d 835, 848 n.26 (D.C. 2017) (citing Criminal Jury
Instructions for the District of Columbia, No. 9.504.A). The government did not
pursue a legal theory of first aggressor or provocation in this case.
      14
            In a nondeadly force case, the government must establish that the
defendant did not reasonably believe that she was in imminent danger of bodily
injury, as opposed to death or serious bodily injury. Ewell, 72 A.3d at 131.
                                          19

reasonably believe that he is in imminent peril of death or serious bodily harm.”

(quoting McPhaul v. United States, 452 A.2d 371, 373 (D.C. 1982))).




      These means of disproving a self-defense claim are available to the

government whether a defendant employs nondeadly force or deadly force. Supra

note 14. But in the deadly force context, this court has acknowledged that a

defendant‟s ability to retreat is a special consideration in assessing the viability of

his self-defense claim.15 See Gillis v. United States, 400 A.2d 311, 313 (D.C.

1979). In Gillis, this court acknowledged the existence of a common law rule that

required an individual who was “threatened with death or serious bodily harm . . .

to retreat, if it could be done safely, before using such force.” Id. at 312. We

noted that this “retreat to the wall” rule had been adopted by some states, but

others (“probably the majority”) had rejected it and had adopted the contrary

“American” rule that an individual confronted with death or serious bodily injury

“is not required to retreat but may stand his ground and defend himself.” Id. We

sought a “middle ground between the two extremes,” balancing a recognition “that,


      15
          Distinct from this consideration of retreat, our case law recognizes that a
defendant who was the first aggressor may regain the ability to claim self-defense
if he withdraws in good faith from the conflict he initiated. See, e.g., Potter v.
United States, 534 A.2d 943, 946 (D.C. 1987); see also Criminal Jury Instructions
for the District of Columbia, No. 9.504B & C (5th ed. rev. 2013).
                                           20

when faced with a real or apparent threat of serious bodily harm or death itself, the

average person lacks the ability to reason in a restrained manner how best to save

himself and whether it is safe to retreat” with a “call[] for some degree of restraint

before inflicting serious or mortal injury upon another.” Id. at 313; see also Brown

v. United States, 256 U.S. 335, 343-44 (1921) (explaining that the law of self-

defense has evolved “in the direction of rules consistent with human nature” and

that what “may seem to have been unnecessary when considered in cold blood,”

may be reasonable “while the heat of the conflict was on, and if the defendant

believed that he was fighting for his life”).



      Accordingly, this court held in Gillis that a defendant‟s failure to retreat,

instead using deadly force, is one factor the jury is “allow[ed]” to consider

“together with all the other circumstances” in determining if the government has

disproved beyond a reasonable doubt that a defendant acted in self-defense. Gillis,

400 A.2d at 313; see also Carter v. United States, 475 A.2d 1118, 1124 n.1 (D.C.

1984) (“In the District of Columbia, it is recognized that when an individual is

faced with a real or apparent threat of serious bodily harm or even death itself,

there is no mandatory duty to retreat.”); accord Brown, 256 U.S. at 343 (holding

that in a federal murder prosecution there is no duty to retreat and, instead, that

“[r]ationally the failure to retreat is a circumstance to be considered with all the
                                           21

others in order to determine whether the defendant went farther than he was

justified in doing; not a categorical proof of guilt”).16



      The threshold question before us is whether the jury‟s consideration of a

defendant‟s ability to retreat is temporally limited.       Our prior cases have not

squarely addressed this question, but they support an affirmative answer. Gillis

itself indicates that the jury‟s consideration of a defendant‟s ability to retreat is

limited to the time when deadly force was employed. In that case we said the

District‟s “middle ground” rule regarding consideration of a defendant‟s ability to

retreat instead of using deadly force “permits the jury to determine if the defendant

acted too hastily, was too quick to pull the trigger.” See Gillis, 400 A.2d at 313.

Thus we linked the consideration of retreat to the moment the defendant used

deadly force. Our self-defense cases subsequent to Gillis likewise indicate that the

      16
          In Gillis, we indicated that the ability to retreat is relevant to whether a
defendant in fact reasonably believed he was in imminent danger of death or
serious bodily harm. Accord Edwards v. United States, 619 A.2d 33, 38 (D.C.
1993); Carter, 475 A.2d at 1124 n.1 (citing Gillis). But other cases, like the
Supreme Court‟s decision in Brown, indicate that the ability to retreat is relevant to
whether the defendant‟s use of deadly force was excessive. Accord Cooper v.
United States, 512 A.2d 1002, 1003 (D.C. 1986) (upholding an instruction that
permitted the jury to consider whether, in failing to retreat, the defendant “went
further in repelling the danger, real or apparent, than he was justified in doing
under the circumstances”). Either way, it is clear that the ability to retreat is
relevant to the viability of a self-defense claim in a case where the defendant‟s use
of deadly force is at issue.
                                         22

fact-finder must focus on the defendant‟s assessment of his circumstances “at the

time of the incident,” i.e., at the time deadly force was employed. See Ewell, 72

A.3d at 131;17 see also Richardson v. United States, 98 A.3d at 187 (focusing on

the time of the stabbing).




        The test for self-defense in a deadly force case itself further supports a

determination that the jury‟s consideration of a defendant‟s ability to retreat has a

temporal limit. As noted above, the viability of a self-defense claim turns on

whether the government can prove that a defendant did not reasonably believe that

he was in imminent danger of death or serious bodily injury, or that he used greater

force than he reasonably believed was necessary under the circumstances. An

assessment of what the defendant reasonably believed may in turn depend on
   17
       Ewell is a nondeadly force case, but it nonetheless focuses on the moment in
time when a defendant acts in self-defense. 72 A.3d at 131—32 (concluding that
the trial court‟s findings were inadequate because “we cannot determine whether,
as a matter of law, when appellant struck [the complainant], he reasonably
believed that she posed” such a threat) (emphasis added). Accord Gay v. United
States, 12 A.3d 643, 648 (D.C. 2011) (“The right of self-defense, and especially
the degree of force the victim is permitted to use to prevent bodily harm, is
premised substantially on the victim‟s own reasonable perceptions of what is
happening.” (quoting Fersner v. United States, 482 A.2d 387, 391 (D.C. 1984)));
Edwards, 619 A.2d at 38 (Rejecting a self-defense claim where defendant pointed
a gun at his alleged assailant, Mr. Booker, as Mr. Booker ran away from defendant,
observing that defendant‟s “right of self-defense at the onset of the encounter did
not survive Mr. Booker‟s flight down the street.”).
                                         23

whether retreat was an option. But the only relevant time frame for that inquiry is

after the actual or apparent danger arose. It is irrelevant that a defendant might

have been able to retreat before a defendant faced the actual or apparent danger and

thus before a defendant might reasonably believe he needed to use deadly force.

As it has developed in our jurisdiction, our law of self-defense “calls for some

degree of restraint before inflicting serious or mortal injury upon another,” Gillis,

400 A.2d at 313, but it does not require anticipatory disengagement from every

potential interpersonal conflict. The rules of civility do not define the boundaries

of self-defense.




        Our relevance analysis indicates that the jury‟s proper temporal focus vis à

vis retreat should be the time at which a defendant employs deadly force or had a

possible justification to do so.     We acknowledge that such a rule at least

theoretically expands the jury‟s consideration of a defendant‟s ability to retreat

beyond the moment deadly force is used, the temporal limit previously suggested

by our cases. We surmise that our precedent suggests this temporal limit because

typically, as was the case here, 18 the moment when a defendant faces the actual or



   18
      The circumstance giving rise to a possible justification to use deadly force in
self-defense arose in this case when Mr. Dawkins perceived the threat of a two-on-
                                                                       (continued…)
                                          24

apparent danger potentially justifying the use of deadly force is virtually

simultaneous with the use of deadly force—thus the consideration of a defendant‟s

ability to retreat is limited to that moment. But there may be cases in which there

is an appreciable gap between the moment when the defendant perceives the actual

or apparent danger potentially justifying the use of deadly force and the moment

when defendant actually responds to the perceived danger and employs deadly

force.19 In such cases, the jury may consider the defendant‟s ability to retreat

between these two points in time.



        The government does not argue in its brief that the jury was authorized to

reject Mr. Dawkins‟s self-defense claim based on his failure to retreat from Mr.

Brisbon before Mr. Dawkins perceived an actual or apparent imminent danger of




(…continued)
one attack, a perception which was simultaneous, or nearly so, with his act of
stabbing Mr. Brisbon.
   19
      Allowing the jury to consider a defendant‟s ability to retreat at a point in time
earlier than he employs deadly force might seem in tension with our general
requirement of concurrence, supra note 11, but the fact remains that the
government still bears the burden to prove that a defendant accused of murder or
voluntary manslaughter acted to kill someone and did so with malice or mitigated
malice. Supra note 12. Self-defense itself is an exception to the rule that guilt is
established when the government proves both the actus reus and the mens rea
elements of a crime.
                                         25

death or serious bodily injury. 20 Instead, the government contemplates a different

question—whether a jury assessing the reasonableness of a defendant‟s use of

deadly force may consider a defendant‟s ability to retreat before using nondeadly

force—and argues that the fact-finder should be permitted to consider whether a

defendant could have retreated before using any type of force. This would, in

essence, require anticipatory disengagement from every potential interpersonal

conflict which, for the reasons discussed above, is not required; furthermore, as the

government acknowledges, the weight of authority is to the contrary.          See 2

LAFAVE, SUBST. CRIM. L. § 10.4(f) (3d ed.) (“It seems everywhere agreed that one

who can safely retreat need not do so before using nondeadly force.”); accord

Higgenbottom v. United States, 923 A.2d 891, 899 n.7 (D.C. 2007); N. Mariana

Islands v. Demapan, 2008 MP 16, ¶ 22 & n.9 (N. Mar. I. 2008).



      The government further argues that the jury was properly instructed on the

consideration of retreat and that the government never invited the jury to consider

Mr. Dawkins‟s ability to retreat at a time before he perceived a threat of death or

serious bodily harm. But again we disagree, for the reasons discussed below.

Infra II.B & C.
      20
         To the extent the government indicated at oral argument that it was now
advocating this position, this argument comes too late. See Scott v. Burgin, 97
A.3d 564, 565 n.2 (D.C. 2014).
                                          26




        We hold that, in assessing the reasonableness of a defendant‟s actions in the

context of a self-defense claim, and specifically the defendant‟s ability to retreat,

the jury‟s proper temporal focus is the time at which a defendant employs deadly

force or has a possible justification (based on a reasonable belief that he is in

imminent danger of death or serious bodily injury) to do so. We acknowledge that

consideration of a defendant‟s earlier actions might be permissible for other

purposes, for example, to show that the defendant was the first aggressor, supra

note 13, or to challenge his credibility. 21 But, for the reasons discussed above, the

government may not carry its burden to disprove the reasonableness of a

defendant‟s actions by relying on a defendant‟s ability to retreat before any actual

or apparent need to use deadly force in self-defense arose.




   21
       Cf., Bassil v. United States, 147 A.3d 303, 316—18 (D.C. 2016) (concluding
that there was “sufficient evidence for a jury to disbelieve beyond a reasonable
doubt that appellant acted in self-defense” as she had testified, noting, inter alia,
the “abundant evidence of an acrimonious relationship in which appellant had
serious unresolved grievances against [the decedent] that came to a boil in the
hours just before their final conflict . . . [which] was more indicative of her motive
for stabbing him than fear for her physical safety”).
                                          27

                             B. The Trial Court’s Instruction



      We turn to the trial court‟s instruction to determine whether it provided the

jury with adequate guidance on the law of self-defense and in particular its

consideration of Mr. Dawkins‟s ability to retreat. The government argues that we

should review Mr. Dawkins‟s challenge to the court‟s instruction for abuse of

discretion. None of the cases the government cites for this proposition concern

instruction regarding the legal boundaries of a self-defense claim. And even the

government‟s cases acknowledge that the trial court must exercise its discretion so

as to deliver an instruction that “considered as a whole, fairly and accurately states

the law.”   Fearwell v. United States, 886 A.2d 95, 101 (D.C. 2005).22              We

conclude that the retreat instruction delivered by the trial court did not clearly

prohibit the jury from considering conduct that occurred before Mr. Dawkins

employed deadly force or had a possible justification to do so.23

      22
         See also Pannu v. Jacobson, 909 A.2d 178, 198 (D.C. 2006) (“[I]t is
incumbent on the trial court to properly instruct the jury on the law. . . . [T]he trial
court must give the jury an accurate and fair statement of the law.”) (emphasis
added).
      23
           On appeal, the government focuses on Mr. Dawkins‟s proposed jury
instruction regarding retreat. But Mr. Dawkins‟s argument is not that his precise
instruction should have been given, rather it is that the trial court‟s instruction was
inadequate. E.g., Whitaker v. United States, 617 A.2d 499, 507-08 (D.C. 1992)
(opinion on rehearing) (“If the language used by counsel in bringing up the subject
was considered unsatisfactory, the proper remedy was to reinstruct the jury, but to
                                                                          (continued…)
                                          28




      The trial court‟s instruction first informed the jury that there was no duty to

retreat before using nondeadly force. Supra I.C. This instruction directed the

jury‟s attention to the outset of the altercation when Mr. Dawkins had no possible

justification to use deadly force in self-defense. Moreover, it told the jury only that

there was no duty to retreat at this earlier juncture, permitting reasonable jurors to

misunderstand that the failure to retreat before using nondeadly force could be

considered by the jury to reject Mr. Dawkins‟s claim that he used deadly force in

self-defense at a later time when he stabbed Mr. Brisbon.



      The court then continued with the standard instruction No. 9.503. Supra I.C.

But when coupled with the introductory sentence focusing the jury on an earlier

point in time, this language was not clarifying and may well have increased the

danger of confusion and misapprehension.24 After informing the jury that there


(…continued)
do so with greater precision. Even a request for an instruction which is not entirely
perfect may in some situations impose upon the court the duty to give a more
specific instruction on an issue, where it soundly appears that such an instruction is
needful to enable the jury intelligently to determine the question.”) (brackets and
internal quotation marks omitted).
      24
          Mr. Dawkins‟s challenge to the trial court‟s instruction, as it was given, is
fully preserved, even though, as the government argues, defense counsel did not
object to the components of the court‟s instruction that came from the standard
retreat instruction. After the government raised the issue of retreat into the case,
                                                                         (continued…)
                                         29

was likewise no duty to retreat before using deadly force, the court told the jury

that a defendant “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,” and then concluded that “[i]n deciding

whether the defendant acted reasonably, you should therefore consider whether he

could have taken those steps consistent with his own safety.”            Taking this

instruction “as a whole,” Fearwell, 886 A.2d at 101, a jury could have

misunderstood that it “should” consider whether Mr. Dawkins had taken

“reasonable steps” to avoid the use of deadly force at any point in his encounter

with Mr. Brisbon; that these “reasonable steps” could encompass the time before



(…continued)
counsel for Mr. Dawkins made clear that they were concerned that the jury might
misunderstand whether and when Mr. Dawkins‟s ability to retreat from Mr.
Brisbon could be considered, and counsel argued to the court that the standard
instruction as modified in accordance with the government‟s proposal did not
adequately address its concerns. Counsel‟s arguments sufficiently alerted the trial
court to this issue. Russell v. United States, 698 A.2d 1007, 1012 (D.C. 1997)
(“[O]bjections to jury instructions must be specific enough to direct the judge‟s
attention to the correct rule of law; a party‟s request for jury instructions must be
made with sufficient precision to indicate distinctly the party‟s thesis.”); see also
Brooks v. United States, 39 A.3d 873, 881 (D.C. 2012) (“Once an objection is
lodged, and its basis asserted, it is the judge‟s responsibility to exercise judgment
in accordance with applicable legal principles.”).
       It is correct, however, that there is no preserved challenge to the language of
the standard instruction, and Mr. Dawkins has not asked us to review that language
for plain error; thus, we take no position on whether that language accurately
reflects the District‟s law.
                                         30

Mr. Brisbon initiated the fistfight; and that Mr. Dawkins‟s earlier failure to retreat

could defeat his self-defense claim, even if at the time he used deadly force in the

midst of the fight he reasonably believed he was in imminent danger of death or

serious bodily injury.25



      In short, the trial court failed to “properly instruct the jury on the law,”

Pannu, 909 A.2d at 198, because its instruction did not clearly explain that any

consideration of Mr. Dawkins‟s ability to retreat was temporally limited to the time

at which he used deadly force.



                                    C.     Harm



      Having concluded that the trial court‟s instruction was deficient, we consider

if this instruction prejudiced Mr. Dawkins such that we must reverse. The parties

dispute which standard of harm applies. Mr. Dawkins argues that because the trial

court‟s deficient instruction reduced the government‟s burden of proof with respect

      25
           The government argues that “the retreat instruction that [the trial court]
provided—particularly when combined with the other self-defense instructions and
appellant‟s theory of the case instruction—clearly informed the jury that it could
acquit if it found the facts as appellant urged them.” We cannot agree. We see
nothing in these other instructions that limits the jury‟s consideration of retreat-
related facts to the proper timeframe.
                                       31

to Mr. Dawkins‟s mens rea, we must determine if the instruction was harmless

beyond a reasonable doubt, the standard set forth in Chapman v. California, 386

U.S. 18 (1967), for assessing the harm of constitutional error. Id. at 24. The

government opposes review under Chapman and argues that any deficiency in the

“wording of jury instructions” is reviewed as non-constitutional error under

Kotteakos v. United States, 328 U.S. 750 (1946). Under that standard, we must

reverse when we “cannot 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.” Id. at 765. We need not decide which

standard applies because, even under Kotteakos, the court‟s inadequate instruction

necessitates reversal.



      It was the government‟s burden to disprove Mr. Dawkins‟s claim of self-

defense. It sought to do so by two means—one permissible under the law of self-

defense as we have clarified it in this opinion, the other not. The government

permissibly attempted to discredit Mr. Dawkins‟s narrative that Mr. Cheek had

intervened and pulled his arm back in the midst of the fight, causing him to think

Mr. Cheek and Mr. Brisbon were acting in concert and giving rise to his fear that

he was in imminent danger of death or serious bodily harm. To show that this

intervention never happened, the government relied on Mr. Cheek, who testified on
                                          32

direct that he tried to intervene and stop the fight before Mr. Brisbon threw the first

punch, and Mr. Falls, who testified that Mr. Dawkins had stabbed Mr. Brisbon

after Mr. Brisbon punched him once. But there were substantial reasons for the

jury not to credit either of these witnesses. Mr. Cheek had told the police—

inconsistent with his trial testimony but consistent with Mr. Dawkins‟s recollection

and testimony—that he had intervened in the midst of the punching, and he

adopted this statement under oath in the grand jury, allowing this statement to

come in at trial as substantive evidence.        Supra I.A.     Mr. Falls‟s narrative

contradicted Mr. Cheek‟s (and Mr. Dawkins‟s) testimony that the fight lasted

fifteen to twenty seconds with both men exchanging punches; in addition, Mr.

Falls admitted that he was testifying in hopes of leniency in his own criminal

matter, that he would lie if it benefited him, and that he had done so before. Supra

note 3. A reasonable jury could have credited Mr. Dawkins‟s and Mr. Cheek‟s

original account of the fight and could have concluded that Mr. Dawkins

reasonably employed deadly force in self-defense.



      Alternatively, the government suggested throughout trial that Mr. Dawkins‟s

self-defense claim could be rejected because he had not retreated from Mr. Brisbon

at the outset of their encounter. In its opening, the government highlighted Mr.

Dawkins‟s “aggressive” manner before the fight began and his failure to “say hey,
                                           33

man, I didn‟t mean anything by it,” when he “could have walked away.” The

government questioned its witnesses and Mr. Dawkins in this vein, eliciting

testimony from Mr. Cheek that before the fight began, Mr. Dawkins had matched

Mr. Brisbon in his aggression and pressing Mr. Dawkins on his failure to walk

away from Mr. Brisbon and Mr. Cheek and walk on to the gas station alone.

Indeed, the government so strongly insinuated that Mr. Dawkins could not assert a

claim of self-defense because he should have retreated well before he believed

himself to be in imminent danger of death or serious bodily harm, that Mr.

Dawkins‟s counsel asked the court before closing arguments to modify the

standard instruction to clarify that this was not the case.



      As discussed, the instruction failed to provide the jury with adequate

guidance, and the jury was thus ill-equipped to evaluate the “should have walked

away earlier” arguments the government then made in closing and rebuttal. In

closing the government not only highlighted that Mr. Dawkins had been aggressive

and had “continu[ed] to engage” with Mr. Brisbon by walking to the back of the

car and participating in a fistfight, the government also argued that Mr. Dawkins

could have taken “many other steps aside from using his knife to stab Mr. Brisbon”

including “walk[ing] away” after Mr. Brisbon punched him. Granted, defense

counsel strenuously argued that Mr. Dawkins had no obligation to walk away at
                                          34

these earlier points in time and that the only question under the law was whether he

reasonably believed he was in imminent danger of death or serious bodily harm

when he stabbed Mr. Brisbon.          But counsel‟s argument was inadequate to

counteract the combination of the judge‟s erroneous instructions and the

government‟s repeated suggestion that the jury could consider Mr. Dawkins‟s

failure to walk away before he had any possible justification to use deadly force.

And Mr. Dawkins‟s counsel could not respond to the government‟s subsequent

rebuttal, directing the jury‟s attention to Mr. Dawkins‟s decision to aggressively

engage Mr. Brisbon and to “walk[] to the back of the car,” and his failure to “walk

away,” toward the gas station, before the argument became physical—as if these

predicate events did, in fact, have legal significance with respect to his later use of

deadly force.



      The government contends that its questions and arguments implicating Mr.

Dawkins‟s failure to walk away “only made permissible points about [his] state of

mind and credibility.”    As noted above, while there may be other legitimate

reasons for the government to highlight a defendant‟s earlier actions in a conflict

involving deadly force, we disagree that a boundless “state of mind” justification is

one of them, as it would erase the temporal boundary we clarify with this opinion.

Regarding the government‟s desire to use to Mr. Dawkins‟s prior conduct within
                                            35

other permissible limits, we note only that the government did not expressly

articulate these limits to the jury and neither did the trial court.



       Against the backdrop of Mr. Dawkins‟s trial, therefore, we cannot say that

the court‟s deficient instruction to the jury was harmless.



                                   III.   Conclusion



       For the reasons set forth above, we reverse Mr. Dawkins‟s conviction for

voluntary manslaughter and remand for a new trial.



                                                       So ordered.
