Criminal Law Blog

Common law or not, element or term, “serious bodily harm” has a constant definition and a trial court must define it for the jury when asked.

Edward Brown v. United States (decided May 26, 2016).

Players: Associate Judges Easterly and Beckwith, Senior Judge Nebeker. Opinion by Easterly. Concurrence by Nebeker. Trial Judge: Ronna Lee Beck. PDS for Mr. Brown.

Facts: Torita Burt testified that Mr. Brown struck her on the head with the blunt end of a hatchet while she was visiting him in his apartment. She said he then pinned her to the bed by her throat and would not let her leave unless she would have sex with him. She agreed, and after they had sex, she was allowed to leave. Mr. Brown told a different story where he admitted hitting Ms. Brown in the head, but said he did so only after she had demanded money from him to buy drugs and had taken his cell phone. He said she swung the hatchet at him first, but missed. They then struggled over it and he wound up hitting her over the head with it. He denied ever demanding sex from her that night or grabbing her by her throat. In a phone call to his girlfriend after he was arrested, Mr. Brown said that he hit her because she was stealing from him. 

At trial, the jury was instructed on self defense and defense of property, based on the phone call.  Defense of property authorizes the use of reasonable, nondeadly force to repossess personal property. Deadly force is defined as “force that is likely to cause death or serious bodily harm.” The defense asked the court to define for the jury the term “serious bodily harm,” using the definition from the aggravated assault instruction, which states that serious bodily harm is an “injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental faculty or a substantial risk of death.” The trial court, however, refused to provide any definition, ruling that it was a “common law term . . . and that’s very different from a legislated definition for purpose[s] of defining a crime such as aggravated assault.”

The jury acquitted Mr. Brown of first-degree sexual abuse while armed and kidnapping while armed, but convicted him of assault with a dangerous weapon and assault with significant bodily injury.

Issue:  Did the trial court err in refusing to define the term “serious bodily harm,” as it is defined in the aggravated assault context, when defining defense of property for the jury?

Holding: Yes. The Court ruled that while it is an abuse of discretion standard when reviewing whether an instruction should be given, the court reviews de novo the content of the instruction actually given. The Court then ruled that the term “serious bodily harm” does have a “fixed meaning synonymous with ‘serious bodily injury’ as used in the context of aggravated assault.” “We see no reason the degree of serious bodily harm that establishes ‘deadly force’ and in turn precludes the defense-of-property defense should be quantitatively different from the degree of ‘serious bodily harm’ that sustains a conviction for aggravated assault.” The Court explained that although it does not want people using deadly force to protect property, a person should be able to use reasonable force that is more than just significant bodily injury. And, even though defense of property is a common law defense, that does not mean that the “proper application of the defense is left entirely to the jury’s unfettered discretion.” Thus, because “serious bodily harm” in the defense of property context is synonymous with “serious bodily harm” as defined in aggravated assault, the trial court should have defined the term for the jury. “This instruction would have helped the jury to locate the line between impermissible deadly force and permissible nondeadly force.”

But, the Court ruled that any error was harmless beyond a reasonable doubt. The Court, at footnote 28, writes that “[o]ur case law arguably does not resolve whether [instructional] error was constitutional (triggering review underChapman v. California, 386 U.S. 18, 24 (1967), to determine if the error was harmless beyond a reasonable doubt) or non-constitutional (triggering review under Kotteakos v. United States, 328 U.S. 750, 765 (1946), to determine if we can 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’).” The Court did not resolve the dispute, ruling that even if the Chapman standard applies that any error was harmless beyond a reasonable doubt. The Court noted that the defense at trial focused more on self defense, as compared to defense of property, and that striking someone in the head with a hatchet to retrieve a cell phone when that person was inside your apartment was not reasonably necessary, regardless of the definition of serious bodily harm a jury might have used. 

Of Note:

  • The opinion makes clear that whether a phrase is considered a term or an element, or it is part of a common law defense or a statutorily defined crime, does not dictate whether the phrase should be defined for the jury. The key question is does the term have a consistent applicable definition that the jury needs to properly understand.
  • The Court’s opinion, at footnote 26, while not expressly overruling Savage-El v. United States, 902 A.2d 120 (D.C. 2006), makes clear that Savage-El does not stand for the argument that a trial court does not have to define terms for a jury, as compared to elements. “To the extent that the court [in Savage-El] distinguished between elements and definitional terms, it did so to support its determination ‘that there was no meaningful risk of [jury] confusion or misunderstanding . . . in the context of the factual circumstances here’ and thus no instructional error.”
  • Also, this case can be used to support an argument that a trial court should provide a defense instruction, even when the evidence in support is not overwhelming. At footnote 29, the Court acknowledges there was minimal evidence (one comment made by Mr. Brown during a phone call) to support the defense of property instruction but that was sufficient to meet the “some evidence” standard to give a defense instruction.
  • Judge Nebeker wrote a concurring opinion where he agreed any error was harmless, but did not think the court should have reached any decision on the proper definition of serious bodily harm in the defense of property context, writing, “as a general rule this court will decide only such questions as are necessary for a determination of the case presented for consideration, and will not render decisions in advance of such necessity.” Judge Nebeker wrote that it is inconsistent with “judicial efficiency” to even identify an error if the court is going to conclude the error was harmless. The majority opinion, at footnote one, counters that “Our colleague expresses concern about judicial efficiency, but, in the appropriate case, clear explication of the law promotes that goal.” BM

Read full opinion here.