Bellamy v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-0004

MAURICE BELLAMY, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(2016-CF1-004628)

(Hon. Lynn Leibovitz, Motion Judge)
(Hon. Juliet J. McKenna, Trial Judge)

(Submitted October 1, 2020 Decided June 29, 2023)

Steven R. Kiersh was on the brief for appellant.

Timothy J. Shea, United States Attorney at the time the brief was filed, with
whom Elizabeth Trosman, Elizabeth H. Danello and Bryan H. Han, Assistant
United States Attorneys, were on the brief for appellee.

Before EASTERLY, Associate Judge, and RUIZ and GLICKMAN, * Senior
Judges.

RUIZ, Senior Judge: A jury found appellant Maurice Bellamy guilty of one

count of first degree felony murder of Arthur Baldwin, Jr., one count of first degree
_________________
*
Judge Glickman was an Associate Judge of the court at the time of
submission. He began his service as a Senior Judge on December 21, 2022.
 2

premeditated murder of Devonte Washington, and related weapons charges. On

appeal, appellant argues that the trial court erred by: (1) denying his motion to

sever the charges for the two murders and try them separately; (2) not dismissing

an enhancement of the charge for the murder of Washington as especially heinous,

atrocious or cruel, which he claims is unconstitutional; and (3) denying appellant’s

request to instruct the jury on imperfect self-defense. For the following reasons,

we affirm.

I. Factual and Procedural History

The charges against appellant involved two killings, occurring three months

apart. On December 15, 2015, Arthur Baldwin, Jr., was fatally shot in the course

of an armed robbery, while he was waiting in his car for his girlfriend. On March

26, 2016, 15-year-old Devonte Washington was fatally shot, for no apparent

reason, while waiting on a metro platform with his mother and younger sisters.
 3

A grand jury charged appellant with six counts related to the two shootings.

For the shooting of Baldwin, appellant was charged with one count of robbery; 1

one count of first degree felony murder while armed with aggravating

circumstances (for murder committed while committing or attempting to commit a

robbery); 2 and two counts of possession of a firearm during a crime of violence or

dangerous offense (PFCV). 3 For the shooting of Washington, appellant was

charged with one count of first degree premeditated murder while armed with

aggravating circumstances (for an especially heinous, atrocious or cruel murder) 4

and one count of PFCV. 5

Appellant filed a pretrial motion to sever the counts related to the killing of

Baldwin from the counts related to the killing of Washington. The government

opposed. After a hearing, Judge Leibovitz denied the motion to sever, concluding

_________________
1
D.C. Code §§ 22-2801, 22-4502.
2
D.C. Code §§ 22-2101, 22-4502, 22-2104.01(b)(8).
3
D.C. Code § 22- 4504(b).
4
D.C. Code §§ 22-2101, 22-4502, 22-2104.01(b)(4).
5
D.C. Code § 22- 4504(b).
 4

that the evidence of each shooting was admissible in the trial of the other and

appellant would not suffer undue prejudice if they were tried jointly.

Judge McKenna presided over the trial. For the shooting of Arthur Baldwin,

the government presented evidence that appellant committed the robbery and

murder along with Dennis Morton and Charles Sims. At the time, appellant was

living with Dennis Morton and his wife, Ronika Minnick. Charles Sims is Ronika

Minnick’s cousin.

Morton testified that he and Sims received a tip from a local drug dealer,

Alfonso Murray, that a man sitting in his car was waiting to buy drugs from a

competing drug dealer. Murray asked them to help him rob the man, and appellant

joined the group. The man in the car was Arthur Baldwin, Jr. It was a case of

mistaken identity. Baldwin, an off-duty Secret Service officer, was not there to

buy drugs but instead was waiting for his girlfriend. He was unarmed.

As the foursome approached, Murray blocked Baldwin’s car by parking

behind him; appellant held Baldwin at gunpoint on the driver’s side with a silver
 5

.38 caliber revolver; Sims searched the backseat while wielding his .22 caliber

handgun; and Morton searched the trunk, realizing then that Murray had just sent

them to rob a random person. When Baldwin attempted to exit his car, appellant

shot him twice from the driver’s side, followed by Sims shooting multiple times

from the rear passenger side.

Evidence from an autopsy found he was shot with two .38 caliber bullets and

three .22 caliber bullets. Forensic evidence revealed that skin cells on the driver’s

side door of Baldwin’s car matched appellant’s DNA profile. Two items were

stolen from Baldwin, an iPad and his wallet. Minnick testified that appellant gave

her the iPad which she then tried to sell.

For the shooting of 15-year-old Devonte Washington, the government

presented evidence that appellant randomly shot Washington in front of his family

members while they were waiting for the metro at the Deanwood station. Metro

security cameras recorded the entire incident from beginning to end, and several

eyewitnesses testified to the actions captured by the surveillance video. The video

showed that Washington entered the station with his mother and two younger

sisters at around the same time as Morton, Minnick, their son, and appellant
 6

arrived at the metro station. Washington and appellant were strangers who had

never seen each other before.

Washington and his family headed up the escalator to the metro platform

first, followed shortly by appellant and his group. The Washington family walked

down the platform and sat on a bench surrounded by a plexiglass kiosk, waiting for

the train. Appellant and his group also went down the platform, passing

Washington and his family on the bench.

Appellant then came up to Washington, who was on his cell phone.

Appellant asked Washington “what the F was he looking at,” prompting

Washington to respond “What?” in confusion. Washington stood up, and appellant

almost instantly shot him twice in the chest, while his mother and younger sisters

sat on the bench close by. Washington’s mother tried to run after appellant as he

fled down the escalator, but, unable to catch him, she returned to her screaming

daughters and called 911. Morton testified that Washington was unarmed and did

not make any threats against appellant.
 7

Forensic evidence showed that Washington was shot with two .38 caliber

bullets, which went through his body and were recovered in the metro station.

Without objection, the government’s firearms and tools examiner opined that the

.38 caliber bullets that were recovered from Baldwin’s body were fired from the

same gun that was used to shoot Washington. Morton, who was present at both

shootings, testified that appellant used the same silver .38 caliber gun to shoot

Baldwin and Washington.

Toward the end of the government’s case-in-chief, appellant renewed his

motion to sever the charges related to the two killings. Defense counsel argued the

motion should be granted because the government’s testimony was “extremely

prejudicial.” Judge McKenna denied the renewed motion to sever because, among

other reasons, like Judge Leibovitz, she found no undue prejudice.

The jury found appellant guilty of four of the six charges. For the shooting

of Washington, the jury found appellant guilty of first-degree premeditated murder

while armed — including aggravating circumstances for an especially heinous,

atrocious or cruel murder — and PFCV. For the shooting of Baldwin, the jury

found appellant guilty of the charges of robbery and first-degree felony murder
 8

while armed — including aggravating circumstances for murder committed while

committing a robbery — but not the two PFCV charges.

Appellant was sentenced to a total of sixty-five years of incarceration. For

the murder of Baldwin, appellant was sentenced to thirty years for the murder and

five years for the robbery, running concurrently. For the convictions related to the

shooting of Washington, appellant was sentenced to thirty-five years for the

murder and five years for the firearm charge, also running concurrently. The

sentences for each of the two shootings run consecutively. Appellant filed a direct

appeal with this court.

II. Motion to Sever

Joinder of offenses is permissible when two or more offenses “are of the

same or similar character or are based on the same act or transaction or on two or

more acts or transactions connected together or constituting parts of a common

scheme or plan.” See Super. Ct. Crim. R. 8(a). However, if joinder “appears to

prejudice a defendant . . . the [trial] court may order separate trials of counts, sever

the defendants’ trials, or provide any other relief that justice requires.” See Super.

Ct. Crim. R. 14(a). Appellant contends that the trial court erred by denying the
 9

motion to sever the charges and try each shooting separately. Specifically, he

argues that evidence of the two murders was not mutually admissible and trying

the two murders together unduly prejudiced him with the jury.

We review denial of a motion for severance based on prejudicial joinder for

abuse of discretion. See Tornero v. United States, 161 A.3d 675, 681 (D.C. 2017).

An abuse of discretion can be shown based on “the most compelling prejudice,

from which the court would be unable to afford protection if the offenses were

tried together.” Id. at 682 (quoting Bailey v. United States, 10 A.3d 637, 642 (D.C.

2010)). Compelling prejudice, however, “does not encompass all prejudice.”

Bailey, 10 A.3d at 642 (citing Arnold v. United States, 358 A.2d 335, 338 (D.C.

1976) (en banc)). Rather, an “appellant must demonstrate more than a simple

showing that appellant would have stood a better chance of acquittal had the

charges been tried separately.” Id.

Although there is “a presumption favoring joinder,” a trial judge faced with

a motion for severance “must balance the possibility of prejudice to the defendant[]

against the legitimate probative force of the evidence and the interest in judicial

economy.” Dyson v. United States, 848 A.2d 603, 612 (D.C. 2004) (quoting Bittle
 10

v. United States, 410 A.2d 1383, 1386 (D.C. 1980)). Severance may be warranted

“where the evidence would not be mutually admissible at separate trials, or the

evidence of the multiple charges is likely to be amalgamated in the jury’s mind

into a single inculpatory mass.” Bailey, 10 A.3d at 643. Multiple charges are

likely to be amalgamated if “the jury was unable to keep the evidence of each

distinct and separate in deliberating and reaching a verdict.” Atchison v. United

States, 982 A.2d 1138, 1144 (D.C. 2009).

Whether evidence of different offenses is mutually admissible can be

established based on a “Drew exception” for other-crimes evidence, or based on a

determination that evidence of the two offenses constitute “Johnson evidence.”

See Sweet v. United States, 756 A.2d 366, 376 (D.C. 2000) (“Mutual admissibility

of evidence in separate trials is determined generally by applying a Drew analysis.

However, the Drew analysis is not required [under Johnson] where the evidence is

‘not independent of the crime charged and the evidence is direct proof of the crime

charged.’” (internal citation and ellipsis omitted) (quoting Johnson v. United

States, 683 A.2d 1087, 1101 (D.C. 1996) (en banc))).
 11

In Drew, the D.C. Circuit explained that, although evidence of “other

crimes” is not admissible to prove general criminal propensity, other-crimes

evidence can be admitted for another “substantial, legitimate purpose.” Drew v.

United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964). Such a purpose includes, but

is not limited to, proof of: (1) motive, (2) intent, (3) the absence of mistake or

accident, (4) a common scheme or plan, and (5) identity. See id. at 90 & n.10.

Accordingly, severance is generally unwarranted when, applying a Drew analysis,

evidence of two or more independent crimes would be mutually admissible in

separate trials. Id. at 90. The D.C. Circuit reasoned that “the prejudice that might

result from the jury’s hearing the evidence of the other crime in a joint trial would

be no different from that possibility in separate trials.” Id. 6

_________________
6
Where there is a Drew exception to other-crimes evidence based on its
relevance to a permissible purpose, the court uses four factors to determine
admissibility:

(1) there must be clear and convincing evidence that the
defendant committed the other offense; (2) the evidence
of the other offense must be directed to a genuine,
material and contested issue in the case; (3) the evidence
must be logically relevant to prove the issue for a reason
other than its power to demonstrate criminal propensity;
and (4) the evidence must be more probative than
prejudicial.

Roper v. United States, 564 A.2d 726, 731 (D.C. 1989) (per curiam) (internal
citations omitted). These factors are reviewed based on the “totality of the factual
 12

In Johnson, the court clarified circumstances in which a Drew exception

does not apply but where evidence still would be mutually admissible. 683 A.2d at

1096. The court explained that Drew “was directed at crimes independent of the

crime charged,” not evidence “admissible as direct proof of guilt.” Id. (emphases

added). Thus, the court in Johnson underscored that “[s]pecifically, Drew does not

apply where such evidence: (1) is direct and substantial proof of the charged

crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is

necessary to place the charged crime in an understandable context.” 683 A.2d at

1098. Both Drew and Johnson evidence must “be excluded if its probative value is

substantially outweighed by . . . unfair prejudice.” Id. at 1099 (quoting Federal

Rule of Evidence 403).

Appellant argues that the motion to sever should have been granted because

evidence of neither shooting was admissible at a trial of the other shooting. We

disagree. The evidence was mutually admissible under Drew for a “substantial,

legitimate purpose,” not to prove general criminal propensity. Drew, 331 F.2d at

89-90. Unchallenged toolmark comparison evidence was introduced to establish

________________
circumstances.” Thomas v. United States, 59 A.3d 1252, 1260 (D.C. 2013)
(quoting Easton v. United States, 533 A.2d 904, 907 (D.C. 1987)).
 13

that the two murder victims were shot with .38 caliber bullets fired from the same

gun. But see infra note 7. As Judge Leibovitz explained at the pre-trial hearing on

the initial motion to sever, the “firearm . . . used as to one offense is evidence of

identity as to the second offense and vice versa.” Judge Leibovitz acknowledged

that “guns can change hands,” but in this case the proffered evidence suggested

otherwise: Morton would testify he was present at both shootings and that

appellant wielded the same silver firearm each time. Hence, Judge Leibovitz ruled

that the toolmark examiner’s testimony about the gun that fired the bullets and

Morton’s testimony as to appellant’s use of the same firearm for both shootings

“would come in at both trials and would be mutually admissible as to each

offense.” At trial, when defense counsel renewed the motion to sever, Judge

McKenna reasoned that testimony of Morton and Minnick, who testified about

both shootings, was mutually admissible to place their testimony in context. The

judge explained that

it is crucial for the jury to have a full picture not only of
Mr. Morton and Ms. Minnick’s relationship with
[appellant], but to explain why it is that Mr. Morton and
Ms. Minnick did not come forward immediately after the
shooting death of Arthur Baldwin and why Mr. Morton
and Ms. Minnick, even when they ultimately did come
forward, provided false testimony or false information to
the investigating authorities.

Judge McKenna likewise recognized that the testimony of Metropolitan Police

Department detectives about their investigation was mutually admissible for the
 14

purpose of explaining to the jury why Morton and Minnick delayed identifying

appellant as a perpetrator in the Baldwin shooting until after they saw appellant

shoot Washington, which in turn delayed discovering a match for appellant’s DNA

on the driver-side handle of Baldwin’s vehicle. Appellant’s claim that evidence of

the two murders does not fall under Drew or Johnson is not sustainable.

Appellant argues that even if the evidence was mutually admissible, it

should have been excluded because its probative value was substantially

outweighed by its prejudicial impact. Both judges were aware that when

considering a motion to sever, a trial court must always consider prejudice. See

Super. Ct. Crim. R. 14(a); Johnson, 683 A.2d at 1101; Dyson v. United States, 848

A.2d 603, 612 (D.C. 2004). In concluding that appellant would not suffer undue

prejudice if the two murders were tried together, both Judge Leibovitz and Judge

McKenna relied on the government’s ability to keep the evidence “separate and

distinct.” Before trial, Judge Leibovitz explained that because the two incidents

occurred months apart, under dissimilar circumstances, and involved different

victims, they were not likely to be amalgamated in the jury’s mind. The

government generally presented its evidence in two main tranches: first as to the

shooting of Devonte Washington, and then as to the shooting of Arthur Baldwin.
 15

Shortly before the government finished presenting its case-in-chief, Judge

McKenna noted that the government had been able to keep the evidence of the two

incidents “separate and distinct” by labeling exhibits with the initials of the

decedents. She also explained that jury instructions would separate the offenses

for each decedent with headers, and jurors would receive separate verdict forms,

one for each shooting, with only the counts relevant to the respective shooting.

We recognize there is a difference between the government’s presentation of

evidence in a separate and distinct manner and the jury’s ability to keep the

evidence separate in its deliberation of the two offenses. As we explained in

Atchison, a defendant can prove prejudice by showing that “the jury was unable to

keep the evidence of each distinct and separate in deliberating and reaching a

verdict.” 982 A.2d at 1144. Here, appellant attempts to meet his burden by

highlighting what he contends was the “highly emotional” nature of the evidence

concerning these two murders. On renewing the motion to sever, defense counsel

argued that the testimony of the government’s witnesses was “extremely

prejudicial” because the crimes against the victims — an off-duty Secret Service

officer sitting in his car and a 15-year-old juvenile waiting for the metro — were

“vicious,” and the family members of each of the victims all “broke down” on the
 16

witness stand. According to counsel, “no human being could not be affected and

have an incredible amount of sympathy for these people.”

We can agree that the evidence showed vicious, gratuitous crimes against

totally innocent victims. That does not mean, however, that, even if repulsed by

the acts described by the witnesses, the jurors would not be able to objectively

evaluate the evidence they were asked to consider in responding to separate verdict

forms for each shooting. We see no evidence in the record that they failed to do so

and rushed to judgment based on an emotional reaction. The jury deliberated for

approximately one and a half days. They sent two notes asking questions during

their deliberations. In returning a felony murder verdict for the Baldwin killing,

the jury did not find appellant guilty of the PFCV charges, showing that the jury

was not sufficiently convinced by testimony that appellant shot Baldwin, and that it

exercised judgment in applying the jury instructions to the evidence it credited.

Appellant argues that the prejudicial impact of evidence of the Baldwin

murder substantially outweighed its relatively minor probative value to prove the

charges of the Washington shooting in light of the video and eyewitness evidence

that identified appellant as the perpetrator and showed the entire sequence of
 17

events at the metro platform where Washington was killed. But for the same

reason, any possible prejudicial effect resulting from a joint trial with the charges

related to the Baldwin shooting paled in comparison to the overwhelming evidence

that appellant shot Devonte Washington. See Tornero, 161 A.3d at 686-67 (citing

Jones v. United States, 17 A.3d 628, 634 (D.C. 2011). Video evidence from metro

security cameras, which the jury viewed, showed all actions appellant took from

entering the metro station, to standing on the platform, to shooting Washington

twice, to fleeing the station. It also showed the unprovoked nature of the shooting,

including a lack of interaction between appellant and Washington until appellant

decided to approach the young man.

Evidence that appellant shot Washington was not incidental to proving that

appellant also shot Baldwin. There was no video recording of the Baldwin

shooting and the eyewitnesses to the crime were questioned and cross-examined

about their bias: appellant’s alleged co-perpetrators, one of whom (Morton) had an

incentive to curry favor with the government to avoid being charged himself and

one of whom (Sims) was already convicted and sentenced for the same murder.

However, Morton’s testimony that appellant shot Baldwin was corroborated by the

toolmark examiner’s opinion tying the gun that fired the .38 caliber bullets found

in Baldwin’s body to the gun that fired the .38 caliber bullets that went through
 18

Washington’s body and were recovered from the Metro station. 7 Morton, who was

present at both shootings testified that he saw appellant use the same silver gun

both times. Evidence that Morton saw appellant shoot Washington was probative,

as it helped to explain what prompted Morton to belatedly identify appellant as one

of the persons who shot Baldwin in the course of the robbery and, eventually, to

implicate himself in that crime. We have no reason to question the trial court’s

determination that the probative value of this evidence was not substantially

outweighed by its prejudicial effect. To be sure, the family members’ testimony

was emotional at times, but it also was a fair and straightforward factual account of

what occurred, and the government did not stray into impermissibly emotional

questioning. Thus, the family members’ testimony was not “unfairly

inflammatory” and did not cause appellant to be unfairly prejudiced. Johnson, 683

_________________
7
The unqualified testimony of the government’s toolmark examiner that the
.38 caliber bullets at both murders were fired from the same gun should not have
been admitted. See Gardner v. United States, 140 A.3d 1172, 1184 (D.C. 2016).
Even though the error in admitting the unqualified testimony was clear, see
Williams v. United States, 210 A.3d 734, 744 (D.C. 2019), no objection was made
at the trial court on this basis and the issue is not raised on appeal. We, therefore,
assess the trial court’s determination, which we review for abuse of discretion, on
the basis of the record before the trial court. Cf. Jones v. United States, 202 A.3d
1154, 1159 n.10 (D.C. 2019) (“As this hearsay testimony was received without
objection, it could be ‘properly considered by the trier of fact and given its full
probative value.’” (quoting Eldridge v. United States, 492 A.2d 879, 883 (D.C.
1985))). As mentioned in the text, the toolmark examiner’s opinion was one of
several pieces of evidence the trial court weighed in deciding to deny the motion
for severance.
 19

A.2d at 1102. In addition to the safeguards adopted at trial to keep the two crimes

separate in the minds of the jurors, appellant was able to present his defenses to the

charges for each shooting in a joint trial as they were different and not

contradictory. Appellant attacked the credibility of the government’s witnesses

and forensic evidence that identified him as a participant in the Baldwin shooting.

With respect to the shooting of Washington, on the other hand, faced with a video

recording that chronicled appellant shooting Washington at the metro station, at

closing he conceded to killing the young boy but argued he did so without

premeditation, in a bid to mitigate the charge to voluntary manslaughter. On this

record, we cannot say the trial court abused its discretion in denying the motion to

sever the charges for the two shootings into separate trials.

III. Enhancement for Especially Heinous, Atrocious or Cruel Circumstances

For the count of premeditated first degree murder while armed for the

shooting of Washington, the grand jury included a charge for aggravating

circumstances, i.e., “that the murder was especially heinous, atrocious or cruel.”

D.C. Code § 22-2104.01(b)(4) provides that where such aggravating circumstances
 20

exist, “a sentence of more than 60 years up to, and including, life imprisonment

without release may be imposed.”

In accordance with this charge, the trial court gave the following jury

instruction: “If you find that Maurice Bellamy committed the offense of first-

degree premeditated murder while armed, you should go on to determine, beyond a

reasonable doubt, whether the murder was especially heinous, atrocious or cruel.”

During deliberations, the jury sent “a note asking if there is clarification or further

guidance as to the definition of heinous, atrocious and cruel.” The trial court noted

that the “statute does not further define those terms.” Defense counsel proposed

that the jury be instructed to “read the statute again” without providing any

definition, and the government did not oppose. The trial court drafted the

following response, to which both parties agreed: “The statute does not further

define especially heinous, atrocious or cruel.”

Because appellant did not seek dismissal of the enhancement or object to the

jury instruction at trial, we review for plain error. 8 Collins v. United States, 73

_________________
8
Appellant made a glancing reference to a “problem” with the statute,
referring to it as “impermissibly vague.” This comment was made after the case
 21

A.3d 974, 980 (D.C. 2013) (permitting reversal for plain error where appellant

failed to raise an issue at trial only when appellant can prove: “(1) there is error,

(2) the error is plain, meaning ‘clear’ or ‘obvious,’ . . . (3) the error affected

[appellant’s] substantial rights[,] [and (4)] the error seriously affect[s] the fairness,

integrity, or public reputation of the judicial proceedings.” (alterations and

omission in original) (quoting Baker v. United States, 867 A.2d 988, 1002 (D.C.

2005))). Appellant argues that the enhancement cannot stand because the statutory

language is unconstitutionally vague. We do not reach this constitutional

argument, however, because appellant’s sentence for Washington’s murder was

well within the time prescribed for incarceration for first-degree murder and fell far

short of the enhanced sentence permitted by D.C. Code § 22-2104.01(b)(4).

The punishment for first degree murder “shall be not less than 30 years nor

more than life imprisonment without release.” D.C. Code § 22-2104(a). For first
________________
was submitted to the jury, during the discussion of the jury note asking for further
guidance. As mentioned in the text, appellant agreed to the judge’s proposed
response to the jury and at no point argued that the enhancement charge should be
dismissed because it could not be constitutionally applied in this case. In fact, at
one point in the course of the government’s further questioning of Dr. Titus, who
conducted the autopsy of Washington, defense counsel objected by stating “it has
now been established sufficiently, I would submit, to satisfy the elements of the . . .
aggravating circumstances of the statute. Now I believe any more of these
questions would be cumulative and prejudicial, in fact, would outweigh the
proba[tive] value because the statute has been satisfied.”
 22

degree murder while armed, the maximum sentence is “life imprisonment or life

imprisonment without possibility of release.” D.C. Code § 22-4502(a)(3). In

determining whether to “impose a sentence of more than 60 years up to, and

including, life imprisonment without possibility of release” for first degree murder,

a trial court must consider whether aggravating circumstances, proved beyond a

reasonable doubt, were “especially heinous, atrocious or cruel.” D.C. Code §§ 22-

2104.01(a), (b)(4).

The jury found that such aggravating circumstances existed in the murder of

Washington. 9 Although the judge could have enhanced the sentence, she did not

do so. Appellant was sentenced to thirty-five years of imprisonment for the

murder of Washington, well within the sentencing guidelines for first degree

premeditated murder while armed without any aggravating circumstances. The

sentence is also far less than the more than sixty years possible under an

enhancement for a murder found to be especially heinous, atrocious or cruel.

Thus, even assuming the statutory terms are impermissibly vague and that the

enhancement would be unconstitutional if applied in this case — questions we do
_________________
9
In its arguments to the jury, the government stressed the location of the
shooting and that it was perpetrated in front of the victim’s mother and young
sisters.
 23

not decide — appellant cannot show that his substantial rights were violated

because he did not receive an enhanced sentence. Ewing v. United States, 36 A.3d

839, 851 n.45 (D.C. 2012) (concluding that any error in requiring a jury to

determine that a murder was “especially heinous, atrocious, or cruel” would only

be harmless error because the court did not impose an enhanced sentence). As a

result, appellant has not shown plain error.

IV. Imperfect Self-Defense

Finally, appellant argues that the trial court erred by denying his request to

instruct the jury on imperfect self-defense. Before jury deliberations, defense

counsel requested that the trial court include an instruction on imperfect self-

defense with respect to the shooting of Washington. In denying the request, the

trial court reasoned that “the evidence just simply would not allow a reasonable

jury to find that [appellant] had a subjective actual belief that his life was in danger

or that he had a like belief that he had to react with the force that he did even

though such beliefs were objectively unreasonable.” We agree with the trial

court’s decision not to instruct on imperfect self-defense as to the murder of

Washington.
 24

In Swann v. United States, 648 A.2d 928 (D.C. 1994), we distinguished self-

defense from imperfect self-defense. Under the doctrine of self-defense, acquittal

of a homicide is possible if a defendant can show: (1) “an actual belief both that he

or she [was] in imminent danger of serious bodily harm or death and in the need to

use deadly force in order to save himself or herself” and (2) “the defendant’s

[actual] belief [was] objectively reasonable.” Id. at 930. Under the doctrine of

imperfect self-defense, in contrast, the belief does not have to be objectively

reasonable but must be “actually and honestly held.” Id. In other words,

appellant’s belief need only be subjective, even if unreasonable. Id. at 932. Self-

defense is a complete defense to a murder charge; it negates the element of malice

and renders the killing not a crime at all. Id. at 930 (citing Comber v. United

States, 584 A.2d 26, 41 (D.C. 1990) (en banc). Imperfect self-defense does not

lead to acquittal but instead reduces a murder charge to voluntary manslaughter.

Id. at 932-33.

If a defendant asserts imperfect self-defense, a jury instruction is merited

“only if there is evidence in the record to support the request.” Corbin v. United

States, 120 A.3d 588, 606 (D.C. 2015) (quoting Fearwell v. United States, 886

A.2d 95, 101 (D.C. 2005)). When reviewing the denial of a requested defense
 25

instruction, the evidence is viewed in the light most favorable to the defendant.

See Swann, 648 A.2d at 933.

As the trial court explained, the evidence would not support a jury finding

that appellant had a subjective belief that his life was in imminent danger,

requiring the use of deadly force, when he shot Washington. Washington simply

responded “what” and stood up from his seat on the platform bench after appellant

approached and said, “what the F was he looking at?” Washington had no object,

let alone a weapon, in his hand, and appellant had no prior relationship with

Washington of any kind that could have led appellant to believe that Washington

would harm him.

On appeal, appellant argues that there was sufficient evidence to support the

jury instruction on imperfect self-defense because “the record is clear that

defendant and decedent interacted prior to entering the metro platform and there

was some additional hostile interaction on the platform,” in part based on

statements from Morton and Minnick that appellant told them that Washington was
 26

“mugging” on appellant. 10 But this argument was refuted by the metro video

recording, which showed that appellant and Washington were not near each other

— either downstairs at the fare machine or upstairs on the platform — before

appellant approached and shot Washington. At trial, the government noted that the

video evidence showed that Washington never even looked at appellant until they

were up on the platform. Even if appellant subjectively believed Washington had

been watching or staring or scowling at him that would not present a threat of

serious bodily harm or death to justify the use of lethal force in self-defense.

Accordingly, viewing the evidence in the light most favorable to appellant, we

conclude that the trial court did not abuse its discretion in denying the request for a

jury instruction on imperfect self-defense.

*****

For the foregoing reasons, the trial court’s judgment is affirmed.

So ordered.

_________________
10
Minnick testified that appellant told her, while they were at the fare card
machine, that Washington “keeps mugging me, like watching me, he keep
mugging me.”