Thomas v. United States

¶4PER CURIAM:

¶5Appellant was tried for and convicted of second degree murder and carrying a dangerous weapon. On this appeal he makes three points: (1) the trial court’s extensive cross-examination of appellant before the jury was prejudicial; (2) the prosecutor in summation misrepresented the testimony of a Government witness in an area crucial to his case; and (3) no charge on involuntary manslaughter was given the jury in spite of his defense that the killing was accidental.

¶6On May 5, 1967, appellant drove to the 11th Precinct Police Station and told Officer Allen: “There is a body in the front seat of that car. You can see if you want to go and look.” Officer Allen looked into the car and saw the body of a woman lying on the front seat. On being asked “what happened” by Officer Allen, appellant responded, “I shot her.” Whereupon he was placed under arrest for murder.

¶7On trial the details of an extramarital relationship between appellant and his victim, Mrs. Hawkins, were exposed. The theory of the Government’s case was that appellant shot Mrs. Hawkins when she sought to end that relationship, while appellant testified that it was he who tried to end the affair and that Mrs. Hawkins was accidentally shot in a scuffle between them for a pistol she was carrying in her pocketbook.

¶8I

¶9As the Government admits in its brief, “the trial judge conducted a lengthy examination of appellant” extending without interruption over eight and a half pages of transcript. Part of this examination suggested the impropriety of appellant’s relationship with Mrs. Hawkins and questioned his desire to bring that relationship to an end.1 While this ex-*1205animation alone may not constitute reversible error, we cannot say with assurance that it did not prejudice appellant, to some extent at least, in the eyes of the jury. Compare United States v. Barbour, 137 U.S.App.D.C. —, 420 F.2d 1319 (decided October 9, 1969).

¶10II

¶11Appellant’s second point relates to an alleged misrepresentation of the testimony of a Miss Dickerson, a coworker of the deceased at St. Elizabeths Hospital where appellant also had worked. The suggestion is that in summation the prosecutor distorted the co-worker’s testimony to show that appellant had lied on the witness stand about the unavailability of a telephone in the lobby of the hospital through which he is alleged to have threatened the life of Mrs. Hawkins. While the prosecutor’s argument certainly is susceptible to that interpretation and to that charge, another interpretation involving no distortion of Miss Dickerson’s testimony is likewise permissible.2 Thus at most the prosecutor’s argument on this point was equivocal. Moreover, there is no indication that the prosecutor intended to misrepresent the witness’ testimony or mislead the jury.

¶12III

¶13Appellant primarily relies for reversal on the failure of the trial court to instruct on involuntary manslaughter, arguing that the only issue on trial was whether the gun went off accidentally and that the trial court failed to provide the jury with any guidance whatever on this crucial point. There was, of course, evidence on which the jury could have found that the homicide was accidental. Indeed, that was appellant’s only defense, in support of which he testified at length.

¶14Under the law an accidental killing may be second degree murder, manslaughter,3 or no crime at all, depending on the degree of recklessness involved. Thus, as the trial court charged the jury in this case, second degree murder may consist of an unintentional killing where the “act which imports danger to another is one so reckless or so wrongful as to manifest depravity or a depraved mind and disregard of human life.” There is no way, of course, to tell whether the jury’s verdict of second degree murder was based on this part of the charge.

¶15 Nor do we know whether the jury would have found appellant guilty *1206of involuntary manslaughter,4 rather than second degree murder, if given the opportunity.5 In fact, it is possible that, under proper instructions concerning responsibility for accidental death, the jury would have found appellant not guilty. Under the circumstances, since the question of accidental death was the only contested issue in this case and the jury received no guidance on this issue from the trial court, we are constrained to reverse this conviction for a new trial under proper instructions.6See McDonald v. United States, 109 U.S.App.D.C. 98, 284 F.2d 232 (1960); Rule 52(b), Fed. R.Crim.P.

¶16So ordered.