US. APP. 84-1728


Explaining his actions on the witness stand, Thomas denied any malicious intent. He acknowledged that he had deliberately set Revelation aflame, but stated that he had expected the fire to last a short time and that only the sign would burn or be damaged. He related that he had some experience as a stone carver and that, based on his experience, he had been fairly certain that the column would not he damaged and was very surprised when the contrary occurred. Thomas admitted that he was "frustrated" when he set the fire, but denied being angry, stating that his act was "a product of my logical reasoning."

Thomas was cross-examined in some detail as to whether he had shown any concern about the consequences, to other persons and to property, of setting the fire. He acknowledged that he had not looked to determine if there were persons nearby, but explained that pedestrians usually walked forty feet away, and that they would, in any event, be able to observe the flames. With respect to the possibility of property damage, Thomas testified that he had affirmatively considered the question:

I looked around and I thought, what will this fire damage, and I looked at the stone wall and I said, "It's not going to damage the stone wall," and I looked at the metal fence, and I said, "It's not going to damage the metal fence," and I said, "Well, I can set it on fire without doing any damage to anything."

He admitted that he knew that Revelation was next to the column and that he did not move it away before setting it on fire. He also acknowledged that it was reasonable to believe that, where an object is set on fire next to another object, the flames will at least touch the second object.


The issue on this appeal arises from the prosecutor's having told the jury, both as part of her initial closing argument and in rebuttal,

1. that the issue in the ease was whether the damage to the column was reasonably foreseeable, using a "reasonable person" standard, and

2. that Thomas' testimony that he was surprised that the damage occurred has "not at all important or relevant to the issue of malice."

In order to assess the impact of these statements by the prosecutor, we must analyze both the legal context in which they were made and the part which they played in the trial as a whole.

A. The Legal Context

D.C. Code 8 22-403 (1981) provides in substance that whoever maliciously, by fire or otherwise, injures or destroys any public or private property not his own of the value of $200 or more shall be guilty of a felony. In the leading case of Charles v. United States, 371 A.2d 404 (DC. 1977), this court discussed the meaning of malice in the context of this statute, and held, among other things,

1. that malice may he inferred from intentional wrongdoing;

2. that the wrongdoing must be accompanied by a bad or evil purpose; and

3. that malice would not be shown if the injury were merely the Result of negligence or accident.


Id. at 411. The court adopted the following definition of malice from Perkins, CRIMINAL Law 769-10 (2d ed. 1969):

"Malice in the legal sense imports

1. the absence of all elements of justification, excuse or recognized mitigation, and

2. the presence of either
(a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or

(b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result.

Id. [6] (Emphasis added).

In Carter v. United States, 531 A.2d 956, 963 (D.C. 1987), this court rejected the contention that "the malice involved in malicious destruction of property is somehow different from that malice which must be proven in murder cases." We agree with Judge Leventhal's observation, made in the context of determining whether a homicide is murder or manslaughter hut equally applicable here, that "the difference between that recklessness which displays depravity and such extreme and wanton disregard for human life as to constitute 'malice' and that recklessness that amounts only to manslaughter lies in the quality of the awareness of the risk." United States

[6 The court also observed that [t]he basically awkward terms such as a "wicked heart" or a "bad or evil purpose" should not be overemphasized; a finding that the accused intended the actual harm which resulted from his wrongful act is not an essential prerequisite to the existence of malice. All that is required is a conscious disregard of a known and substantial risk of the harm which the statute is intended to prevent Id.]


v. Dixon, 135 U.S. App. D.C. 40], 405-06, 419 F.2d 288, 292-93 (19691 (concurring opinion). As this court put it in United States v. Bradford, 344 A.2d 208, 215 n.22 (D.C. 1976)

"In terms of the actor's awareness of risk to life, if he is aware of the risk, the crime is murder and not involuntary manslaughter. If he is not aware, implied malice is not a factor, and he should have been aware, the crime is involuntary manslaughter.

We conclude on the basis of these authorities that the ultimate issue in the present case is Thomas' subjective state of mind, rather than whether the harm would have been foreseen by a reasonable person. This does not mean, of course, that what a reasonable person would have expected to happen is irrelevant. On the contrary, absent an admission of the proscribed intent, [7] a showing that a reasonable person would have been aware of a risk is often the best available evidence that the defendant was aware of it. [8] While foreseeability of the harm

[7 Such an admission is rarely obtained, and a defendant's awareness of a particular fact or risk is therefore seldom capable of direct proof and must generally be inferred, if at all, from circumstantial evidence. Charles, supra, 371 A.2d at 410.]

[8 As the court explained in Nestlerode v. United States, 74 U.S. App. D.C. 276, 279, 122 F.Pd 56, 59 (1941):

"Precisely what happened is what might have been expected as the result of the events which appellant set in operation and is the natural and probable consequence of these acts. Malice is presumed under such conditions.
Accord, (William) Powell v. United States, 485 A.2d 596, 600 (D.C. 1984) (quoting from Nestlerode), cert. denied, 474 U.S. 981 (1985).]


to a reasonable person is relevant to the ultimate issue of guilt and innocence, the prosecutor must further show, in order to prevail, that the defendant was subjectively aware of the risk in question.

By the same token, Thomas' testimony that he thought he could set Revelation afire without risk to the column is certainly not determinative. Jurors may (and often do) disbelieve a defendant and convict him despite his denial that he entertained the forbidden state of mind. Contrary to the prosecutor's argument here, however, this does not render the defendant's testimony about what he knew or believed or intended irrelevant and even unimportant. A correct statement of the law is that the defendant's testimony on this subject is relevant and must be considered by the jury, but that it is to be evaluated like any other evidence and is not conclusive.

B. The Sequence at Trial

It is not disputed that the trial judge's instructions to the jury with respect to malice were consistent with the controlling case law. The question is whether the judge did enough to ensure that the prosecutor's incorrect statement of the law would not mislead the jury.

On three separate occasions first in his introductory remarks to the jury, next in his final instructions, and finally in response to a jury note during deliberations the trial judge instructed the jurors in conformity with Criminal Jury Instructions for the District of Columbia, No. 4.43 (3d ed. 1978). He told them that the government must prove beyond a reasonable doubt (in addition to the other elements of the offense) that "the defendant acted maliciously, that is, with intent to injure or destroy the property, for a


bad or evil purpose, and not merely negligently an accidentally. "An act is done maliciously where it is done on purpose, without adequate provocation, justification or excuse, and has as its foreseeable consequence damage to or destruction of the property. Malice may he inferred from intentional wrongdoing, accompanied by a bad or evil purpose. It is not necessary that the defendant have intended any actual harm which you may find to have resulted from the act[s] with which he is charged; it is only necessary that you find he acted with a consciously disregard of a known and substantial risk of harm which the law intended to prevent. (Emphasis added). The italicized language, reasonably construed,focuses an the defendant's subjective state of mind --he must consciously disregard the risk --and not on that of a hypothetical reasonable person.

After both parties had rested, and prior to closing argument, the judge met outside the presence of the jury with counsel to preview his instructions. There was also some discussion of what would be permitted in closing argument. [9] There was no mention, however, of the question whether the government would be allowed to argue a "reasonable person" standard or that Thomas' subjective expectations were irrelevant. As a consequence, when the prosecutor made the arguments to the jury

[9 The prosecutor attempted unsuccessfully to persuade the judge not to permit the defense attorney to argue for a defense of provocation based on alleged unlawful conduct by law enforcement officials directed against Thomas.]


which triggered this appeal, she had neither sought nor secured the court's permission to do so. [10]

Much of the prosecutor's closing argument was entirely appropriate. She told the jury that the issue in the case was whether Thomas had acted with malice, and that the court would instruct the jurors in detail on that issue after counsel had completed their arguments. She explained correctly that "what is important is that [Thomas] acted with willful and deliberate disregard for a known risk and that the damage to the property was reasonably foreseeable."

She also argued that

"What is relevant is that if something is set on fire that is right next to something else, it is, indeed, foreseeable that that something else is going to he touched and damaged by the flames. It cannot be denied. "[Defense counsel said to you that Mr. Thomas is an intelligent man. You saw that on

[10 As the court stated in United States v. Sawyer, 143 U.S. App. D.C. 297, 299 n.ll, 443 F.2d 712. 714]

[11 (1971): Before stating a legal principle, counsel should be sure that it will in fact be included in the charge. If there is any question about the accuracy or relevance of counsel's proposed statement of law, he should seek a ruling on the point before going forward with the argument."

The prosecutor was on notice that this rule was in effect in Judge Green's court. During the defense attorney's opening statement the prosecutor objected on the ground that counsel was discussing proposed evidence that would be inadmissible. In sustaining the objection, the judge Ruled that defense counsel had "run afoul of the fact that we have not yet had an opportunity to make a ruling on it"]


the stand. And for him to suggest that that [damage] was not foreseeable does not comport at all with what we've seen here. An intelligent person knows that that conduct would result in damage under the circumstances.

All of the above was, in our view, entirely legitimate.

Towards the end of her argument, however, the prosecutor crossed the line from the permissible-reasonable foreseeability of harm is evidence of malice -- to the proscribed--malice is determined by what a reasonable person should have anticipated. Her contention to this effect prompted a defense objection, with respect to which the judge deferred ruling:

"[The prosecutor]: We use a reasonable man standard, a reasonable person standard, when we look at what is reasonably foreseeable....

"We know that he deliberately set that structure on fire. He did it ta prove a point. The question then becomes whether or not by that act, the damage to the column was reasonably foreseeable. The government submits that in using a reasonable person standard that the only conclusion that one can reach based on the evidence is that it was, indeed, reasonably foreseeable that Mr. Thomas--

"[Defense counsel]: Your Honor, there is no where in the instruction where reasonably foreseeable is the concept--

"The Court: [Defense counsel, save your comments until the end of the closing argument."

After thanking the court, the prosecutor ventured into an even more dangerous area.


Mr. Thomas said to you that he was surprised that the flames reached the level that they reached. He was surprised that the column was damaged. That is not at all important or relevant to the issue of malice.(Emphasis added.)

Shortly thereafter, the prosecutor completed her argument, counsel for Thomas renewed his objection, and the following colloquy ensued:

[Defense counsel]: There is absolutely no language in the instruction about "reasonable." [The prosecutor] is throwing that in there and telling the court what the law is

The Court: True, there isn't.

[Defense counsel]: I would ask the Court to strike it.

The Court: I will.

[The prosecutor]: [T]he case law in the case, we're talking about reasonable foreseeability. That's not a misstatement of what the term means. I think if the Court, as the Court has done, reads the cases, we're talking about reasonable foreseeability.

"The Court: You're not talking about reasonably [foreseen] in this circumstance here. Really what I would like to do is, I will instruct the jury right not, of course, the attorney's statements of the law are not evidence and they really should be paying attention to the instructions I gave them as to what the law is. Mr. [Defense counsel], that's what I'm going to do."


Section 3
Section 1
US APP 84-1728 Intro

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