                               District of Columbia
                                Court of Appeals

No. 14-CF-1065
                                                                     MAY - 5 2016
JORIDA DAVIDSON,
                                         Appellant,

      v.                                               CF1-18988-10


UNITED STATES,
                                         Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

             BEFORE: GLICKMAN, FISHER and EASTERLY, Associate Judges.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

            ORDERED and ADJUDGED that the appellant’s conviction is affirmed.

                                         For the Court:




Dated: May 5, 2016.

Opinion by Associate Judge John R. Fisher.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CF-1065                         5/5/16


                          JORIDA DAVIDSON, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF1-18988-10)

                        (Hon. Lynn Leibovitz, Trial Judge)

(Argued April 5, 2016                                        Decided May 5, 2016)

      Thomas T. Heslep for appellant.

       Karen P. Seifert, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and
Michael C. Liebman, Assistant United States Attorneys, were on the brief, for
appellee.

      Before GLICKMAN, FISHER, and EASTERLY, Associate Judges.

      FISHER, Associate Judge:       Appellant Jorida Davidson challenges her

voluntary manslaughter conviction, arguing primarily that the trial court erred by

denying her request for a jury instruction on voluntary intoxication. We affirm.
                                          2

                                 I.    Background



        We briefly recite the facts relevant to the issues now before us.1 Appellant,

who had been socializing with friends and consumed at least three glasses of wine

and champagne, was driving home in her sport utility vehicle when she hit and

killed Kiela Ryan. Ms. Ryan was exiting the rear driver’s side door of a car that

was parallel parked on the right side of Connecticut Avenue, near Dupont Circle.

The evidence at trial, viewed favorably to the government, showed that appellant

was driving erratically, making unsafe lane changes, speeding, and driving too

close to the parked cars. Appellant did not slow, stop, or honk before or after

hitting Ms. Ryan with such force that she was propelled ten feet forward, onto the

back of the car parked in front, ultimately landing on the ground between the two

cars.



        The collision took place at approximately 1:30 a.m. A witness followed

appellant from the scene on his bicycle and wrote down her license plate number.

Around 2:30 a.m., police discovered appellant slumped over and asleep in the


        1
          The case before us is an appeal from a conviction for voluntary
manslaughter that occurred after we considered and rejected appellant’s argument
that a second trial was barred by the Double Jeopardy Clause. Davidson v. United
States, 48 A.3d 194 (D.C. 2012).
                                         3

driver’s seat of her vehicle, parked in her assigned spot in the garage underneath

her condominium building. She smelled of alcohol and was holding the keys in

her hand. The police performed standard field sobriety tests at the police station,

and appellant showed signs of intoxication. Appellant refused to submit to a

breathalyzer test.



      Ms. Davidson did not testify.     In this trial, she was charged only with

voluntary manslaughter, for causing Ms. Ryan’s death by acting “with a conscious

disregard of an extreme risk of death or serious bodily injury to another.” The

judge used the same language to instruct the jury on the elements of manslaughter.



                                  II.   Analysis



      For more than a century, this jurisdiction has recognized that voluntary

intoxication may preclude formation of the premeditation and deliberation

necessary for a first-degree murder conviction. Bishop v. United States, 107 F.2d

297, 301 (D.C. Cir. 1939); Harris v. United States, 8 App. D.C. 20, 26 (1896).2

However, it is equally well-established that voluntary intoxication is not a defense

      2
        Under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), cases decided by the
United States Court of Appeals for the District of Columbia Circuit (and its
predecessors) prior to February 1, 1971, are part of the case law of this court.
                                         4

to second-degree murder or voluntary manslaughter. In Bishop, a leading case

discussing intoxication as a defense to homicide, the court rejected the appellant’s

contention that “voluntary intoxication may . . . be sufficient to acquit the

defendant of all degrees of homicide.” 107 F.2d at 299. In doing so, it approved

the trial court’s charge distinguishing first-degree murder (“If you find that he was

so drunk that he did not or could not form an intent to kill, or that he formed an

intent to kill but could not deliberate and premeditate upon it, then he would not be

guilty of murder in the first degree . . . .”) from second-degree murder and

manslaughter (“[E]xcept as to that one offense of murder in the first degree, the

fact that he may have been drunk is of no importance and not to be considered by

you.”). Id. at 300 n.1, 301.



      Relying on a long line of authority, the Bishop court stated, unequivocally,

that “[v]oluntary intoxication may not reduce murder to voluntary manslaughter,

nor permit an acquittal of murder,” meaning that a defendant may be drunk enough

to reduce his conviction from first- to second-degree murder, but he may not use

his voluntary intoxication to diminish the offense further, to manslaughter, or seek

acquittal on that basis. See 107 F.2d at 301-03.3 With respect to manslaughter, the


      3
        Even when the defense is legally available, a defendant must present
evidence of “incapacitating intoxication” before the instruction will be given. See,
                                                                       (continued…)
                                         5

court endorsed the view that “a drunken man is equally responsible as a sober

one.” Id. at 302 (internal quotation marks omitted).



       Moreover, in a case in which a drunk driver was convicted of manslaughter

for causing the death of one victim and second-degree murder for killing a second

victim, the D.C. Circuit said: “It would be a sad reflection on justice and a menace

to society to hold that, because [the defendant] had chosen to get stupidly drunk, he

should escape the punishment of the law.” Nestlerode v. United States, 122 F.2d

56, 60 (D.C. Cir. 1941). The defendant’s intoxication “will not reduce the grade of

the offense from second degree murder to manslaughter[,] [m]uch less will the

appellant be excused from all criminal responsibility.” Id. (citations omitted).

Likewise, in King v. United States, 372 F.2d 383 (D.C. Cir. 1967), the court said

clearly that “the rule that negatives voluntary intoxication as a defense to

crimes . . . like manslaughter in effect holds men responsible for their fateful

drinking, without regard to the extent of control at the moment of homicide.” Id. at

388.




(…continued)
e.g., Bell v. United States, 950 A.2d 56, 65 (D.C. 2008). For the sake of argument,
we will assume that appellant would be able to establish the factual predicate for
an intoxication instruction.
                                         6

      Although appellant now argues otherwise, Comber v. United States, 584

A.2d 26 (D.C. 1990) (en banc) (discussing the mental states required for second-

degree murder and manslaughter), did not transform our longstanding law to

suddenly recognize voluntary intoxication as a defense to second-degree murder or

manslaughter. We already rebuffed this argument in Wheeler v. United States, 832

A.2d 1271 (D.C. 2003): “Comber could not plausibly have intended its discussion

of homicide to have so dramatic an effect on the law of homicide and intoxication,

in a case where no issue of intoxication . . . was presented. . . . [T]he trial judge

correctly refused to instruct on intoxication as a defense to second-degree

murder . . . .” Id. at 1276.



      Appellant asserts that voluntary manslaughter should be treated differently

than second-degree murder. However, Wheeler’s reasoning applied equally to

manslaughter. Under Comber’s definition of the two crimes, “[t]he four mental

states recognized as malicious for purposes of second-degree murder exist in

manslaughter, as well.” Wheeler, 832 A.2d at 1275 (alteration in original) (quoting

Comber, 584 A.2d at 52). Thus, if Wheeler’s argument were accepted, “a jury

finding that intoxication negated [defendant’s] ability to form any of the mental

states for murder logically would reach the same conclusion as to manslaughter”—

thus acquitting a defendant of both charges. Id. at 1275-76. But Comber clearly
                                          7

did not work such a radical change in “the law of homicide and intoxication.” Id.

at 1276. Consistent with Bishop’s refusal to allow a reduction to manslaughter or

“permit an acquittal of murder” based on voluntary intoxication, 107 F.2d at 302,

the Wheeler court drew the line at first-degree murder. 832 A.2d at 1273, 1276.



      In light of our precedents, and the sound policy on which they are based, we

follow the Wheeler court in rejecting the arguments appellant advances here.

Voluntary intoxication is not a defense to voluntary manslaughter.4 Appellant’s

conviction is



                                       Affirmed.




      4
         Appellant presents two additional claims of error, neither of which has
merit. Viewed in the light most favorable to the government, the evidence was
sufficient for a reasonable jury to find that appellant had “conscious[ly]
disregard[ed] . . . an extreme risk of death or serious bodily injury to another
person.” The trial court did not abuse its discretion by precluding appellant, in
closing argument, from comparing the evidence presented at this trial to that
presented in the first trial. See Haley v. United States, 799 A.2d 1201, 1207 (D.C.
2002) (a court abuses its discretion in limiting closing argument only if it “prevents
defense counsel from making a point essential to the defense” (internal quotation
marks omitted)).
