UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                  No. 97-4104
ROBERT JAMES TURNER, a/k/a Robert
James Branham,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-374)

Submitted: January 30, 1998

Decided: February 20, 1998

Before HALL and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, LeDora Knight, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert James Turner, a/k/a Robert James Branham, was convicted
of first degree murder under 18 U.S.C. § 1111 (1994) and possession
of contraband by a prisoner in violation of 18 U.S.C. § 13 (1994),
assimilating Va. Code Ann. § 53.1-203(4) (Michie 1994). On appeal,
Turner contends that the court abused its discretion by rereading
instructions to the jury regarding premeditation, and refusing to reread
the entire instructions for first degree and second degree murder. We
affirm the conviction.

In February 1995, while incarcerated by the District of Columbia's
Department of Corrections, Turner killed inmate Joseph Daniels by
stabbing him to death with a shank. The record discloses that Turner
and Daniels argued on the morning of the incident. Upon the insis-
tence of a fellow inmate, the two men later shook hands and hugged
in an effort to resolve the situation. According to the testimony of
other inmates, shortly thereafter Turner, appearing preoccupied, stated
that he was going to fight Daniels. Once again, another inmate
attempted to dissuade Turner from fighting with Daniels.

Later that day, inmate Timothy Lytch was awakened by fighting in
the bunk below. Turner, who appeared to be the aggressor, continued
to beat Daniels, who slept in the bunk below Lytch, until another
inmate finally separated the two. Within one half hour after Turner
left, Turner once again approached Daniels and other inmates. Turner
directed an inmate who asked what was going on to get out of the way
and swung at him with something in his hand. After the inmate com-
plied, Turner proceeded to swing at Daniels until Daniels fell. Turner
rebuffed all attempts by other inmates to calm him down and per-
suade him to stop. Turner then proceeded towards Daniels with a
shank. Daniels, unarmed, fell onto a bed. Turner continued to swing
his shank at Daniels striking Daniels, as Daniels tried to get away.

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Daniels collapsed in the hallway. Turner changed his blood-stained
clothes and hid these clothes in a footlocker.

Turner was tried by a jury on single counts of murder and prisoner
possession of a shank. After presentation of the evidence, the judge
charged the jury, in relevant part, with the following instructions:

          You are not to single out any one instruction alone as stating
          the law. You are going to find the law, if you haven't
          already, it's complex; and there are a lot of issues and con-
          siderations in this case. There are a whole bunch of different
          legal principles or legal instructions that you have to keep
          in mind as you do your deliberations.

(J.A. at 450-51).

           . . . [E]very offense has what we call elements. Elements
          are requirements. Every crime has a different number of ele-
          ments, and you must remember that the burden in a criminal
          case is on the Government. In order for the Government to
          prove the guilt of a defendant for a particular crime, the
          Government's evidence must establish beyond a reasonable
          doubt every one of the elements.

(J.A. at 464).

          Now, there are five elements for the crime of murder in the
          first degree.

(J. A. at 465).

          . . . [A]n act is done with premeditation if it is done upon
          deliberation. In order to satisfy this element, the Govern-
          ment must prove beyond a reasonable doubt that the defen-
          dant killed Joseph Daniels only after thinking the matter
          over, deliberating whether to act before committing the
          crime.

          There is no requirement that the Government prove that the
          defendant deliberated for any particular period of time in
          order to show premeditation.

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          It is sufficient to satisfy this element if you find that, before
          the defendant acted, the defendant had a period of time to
          become fully aware of what he intended to do and to think
          it over before he acted.

          In considering whether the element of premeditation is satis-
          fied, you may consider all the facts surrounding the crime,
          as you find them, including any motive for the crime, any
          evidence of planning or preconceived scheme or any evi-
          dence of the procurement of instruments or weapons to
          commit the crime.

(J.A. at 467-68).

          . . . [M]urder two or murder in the second degree is minus
          one of those elements. It has the first four elements, but the
          element of premeditation is missing from murder two.

(J.A. at 469).

During deliberations, the jury sent the court the following note for
clarification:

          For first-degree murder, does the premeditation element
          need only one element? . . . Motive or evidence for planning
          or procurement of a weapon are all elements, or are these
          just examples? We would like a specific definition of pre-
          meditation.

(J.A. at 487). In response, the court replied:

          . . . [Y]ou asked me . . . about premeditation. Now you have
          a copy of the transcript of what I told you before, so you
          have the full set of instructions, and the Court has to be very
          careful not to overly focus or highlight one instruction over
          the others.

          As I told you, you have to think about the charge as a whole,
          and everything is interrelated; but there are a couple of

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things in your question to me that indicate that you may be
a little unclear on some things. So, I'm going to clarify that
for you.

You talk about, [d]oes the premeditation element need only
one element? Well, we don't talk about the element having
elements. In other words, premeditation is an element.

Your real question is, [w]hat is premeditation? Premedita-
tion, the word means pre, which means before; meditate, to
think. It means thinking before, all right. That's the literal
term, to think before. I read you the instruction. I'm going
to go over it with you again.

An act is done with premeditation if it is done upon deliber-
ation. That means that there has been some thinking before
the act is done.

In order to satisfy this element, the Government must prove
beyond a reasonable doubt that the defendant killed Joseph
Daniels only after thinking the matter over. In other words,
deliberating or thinking about whether to act before actually
committing the crime. All right, that's what premeditation
means, as opposed to just doing something instantaneously
without having thought about it.

. . . . [Y]ou can find--premeditation doesn't have a specific
time period. The law doesn't say, for example, there must
have been a 20-minute period of thinking in order to find
premeditation. There's nothing like that, no magic time
period for premeditation, but the Government has the bur-
den of proving that there was, in fact, thinking about the
matter before the act was committed, all right. . . . In consid-
ering whether the element of premeditation is satisfied, you,
the jury, may consider all the facts and circumstances sur-
rounding the crime, as you find those facts to be, including
any motive for the crime, any evidence of planning or pre-
conceived scheme and any evidence concerning the procure-
ment of instruments or weapons to commit the crime.[S]o
what this instruction has given you . . . are factors that may

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          be considered by the jury; and there may be other factors.
          You are to look at all the facts and circumstances of the
          case. Now, I want to remind you that premeditation is an
          element only in the murder in the first degree. If you do not
          find premeditation, then you move on to your evaluation of
          the lesser-included offenses, which I have already instructed
          you on.

(J.A. at 490-93).

The jury found Turner guilty of prisoner possession of a shank on
the first day of deliberations, and of first degree murder the next day.
For first degree murder, the court sentenced Turner to a life sentence
to run consecutively to his current sentence, and on the last charge,
sentenced Turner to 41 months to run concurrently to the murder sen-
tence.

On appeal, Turner maintains that the court erred in rereading the
premeditation instruction, adding unsolicited language, and focusing
on the premeditation element without reviewing all the elements of
first degree and second degree murder. The district court has discre-
tion to decide how best to respond to an inquiry from the jury. See
United States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990). In fact,
"the trial court has a duty `[w]hen a jury makes explicit its difficul-
ties' to `clear them away with concrete accuracy.'" Id. (quoting
Bollenbach v. United States, 326 U.S. 607, 612-13 (1946)). Further-
more, the necessity, extent and character of any supplemental instruc-
tions to the jury are matters within the sound discretion of the district
court. See Horton, 921 F.2d at 546. Supplemental charges must be
examined in light of previously given instructions. A supplemental
charge need not contain all the elements of the offense, if the original
charge accurately stated those elements. See United States v. Iredia,
866 F.2d 114, 118 (5th Cir. 1989). An error requires reversal only if
it is prejudicial in the context of the record as a whole; the standard
of review is whether the instructions "fairly responded to the jury's
question without creating prejudice." United States v. United Medical
& Surgical Supply Corp., 989 F.2d 1390, 1406-07 (4th Cir. 1993).

Here, during deliberations, the jury requested clarification from the
court regarding the element of premeditation. In responding, the

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court, noting that it did not want to place undue emphasis on any par-
ticular portion of the instructions, directed the jury to keep in mind
the instructions as a whole before it proceeded. The court properly
addressed the jury's questions, rereading the pertinent portions of the
instructions without displaying partiality to the Government. Any
supplemental instructions given by the court in responding to the
jury's inquiry were appropriate and did not prejudice Turner. Under
these circumstances, we hold that the court did not err in its supple-
mental instructions to the jury. We therefore affirm Turner's convic-
tions. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the Court
and argument would not aid the decisional process.

AFFIRMED

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