(concurring):
In the course of reviewing the record for the purpose of preparing the court’s opinion, I came to be concerned with a problem in the trial judge’s instructions to the jury on recklessness as a basis for culpability under the criminal law of homicide. These instructions were not made the subject of any objection in the trial court, or complaint in this court, and we ultimately decided that the problem is not one that is either central to the facts of this case or warrants interjection by the appellate court under the rule contemplating reversal for plain and prejudicial error. But the judicial reflection I have provided, in the course of fulfilling my responsibility as a judge to determine whether there was plain error that would warrant reversal even in the absence of objection by counsel, may be helpful to other judges faced with this recurring problem, and hence I follow my practice of attaching to the opinion I have authored for the court, a separate, concurring opinion in which I speak only for myself.
As appears from the Dixon-Thomas-Dent line of cases, cited in footnote 1 of the court’s opinion, recklessness may be the basis for a determination of culpability for murder (malice) or involuntary manslaughter. The applicable doctrine1 may be summarized as follows:
Conduct that evinces unreasonableness or negligence but falls short of recklessness is- insufficient to support a verdict of either manslaughter or second-degree murder. A manslaughter verdict requires a showing of conduct that is reckless, that “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” A murder verdict is justified only when defendant’s conduct is so reckless as to establish “malice.” The term malice is frequently described in terms of “wanton disregard for human life,” but can be more precisely formulated as requiring an awareness of a serious risk of death or serious bodily injury. The distinction between involuntary manslaughter and murder lies in the quality of the defendant’s awareness of the risk. United States v. Dixon, supra, 135 U.S.App.D.C. at 406, 419 F.2d at 293; United States v. Grady, 157 U.S.App. D.C. 6, 8-9, 481 F.2d 1106, 1108-09 (1973).
The District Judge gave the instructions on the recklessness elements of criminal homicide that appear in the Bar Association’s compilation of instructions in the so-called “red book.” This led to the jury’s being instructed in the following terms:
Implied malice [which would support a verdict of second-degree murder] may be inferred from the circumstances of the killing, as, for example . when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life. (Tr. 325) -
*394Later, after lengthy and complex instructions on provocation and certain elements of manslaughter, they were told to find the defendant guilty of manslaughter if the' Government proves
that the defendant’s conduct amounted to a conscious disregard of a substantial and unjustifiable risk to the life of the deceased and a gross deviation from the standard of conduct that a reasonable person should have observed under the circumstances. Whether the conduct is reckless depends upon whether a reasonable person would have been aware or should have been aware of the extreme danger involved in his actions. (Tr. 328)2
What concerns me is that such widely separated passages may not be sufficient to present the difference in offenses in terms meaningful to a jury of laymen. The judge referred to awareness of danger in giving the manslaughter instruction, whereas what was really needed was an instruction that drew the difference between manslaughter and murder in terms of the nature of defendant’s awareness of risk.3 Guidance to the jury would also have been heightened by an explicit statement that a finding of unreasonableness and negligence is not in itself enough to constitute the recklessness required for manslaughter.
To crystallize my reflections, and perhaps enhance their usefulness, I have put in the margin a suggested instruction for consideration as a concluding, or summarizing, instruction in cases involving the possibility of a verdict of criminal homicide based on defendant’s recklessness.4
As this case went to the jury it turned, not on appellant’s state of mind, but on whether the Government had established that he had in fact shot Jackson without any legal justification. Since the instruction on state of mind was technically accurate as given and the problem is one of clarity and emphasis, and since the facts do not really turn on the state of mind issue, this is not a case for invoking the rule that permits reversal, even in the absence of objection, for error that is plain and prejudicial.
. See, e. g., United States v. Poole, 161 U.S. App.D.C. 289, 297, 495 F.2d 115, 123 (1974); United States v. Ammidown, 162 U.S.App. D.C. 28, 37, 497 F.2d 615, 625 (1973).
. Instructions 4.23- and 4.26 of the red-bound Criminal Jury Instructions prepared by the Young Lawyer’s Section of the District of Columbia Bar Association.
. Confusion rather than clarification is imparted by the passage in the manslaughter instructions referring to “a conscious disregard of a substantial and unjustifiable risk to the life of the deceased.” (Tr. 328). Such language belongs in the murder instructions.
. In summary, the question of whether defendant is guilty of involuntary manslaughter, or second-degree murder, turns on whether his conduct constitutes recklessness, and if so, what kind.
The fact that defendant’s conduct was a deviation from the standard of care that a reasonable person would observe in the same situation shows negligence, but if it does not go further and show recklessness, you must bring in a verdict of not guilty on all counts.
You may conclude beyond a reasonable doubt that defendant’s conduct was not merely negligent, but also reckless, if it was a gross deviation from a reasonable standard of care and created a serious risk of death or serious bodily injury. In that case you may find defendant guilty of involuntary manslaughter or second-degree murder, depending on his awareness of the risk created by his conduct. If defendant was not aware of a serious risk of death or serious bodily injury, he may be found guilty of involuntary manslaughter but not of murder. If you find beyond a reasonable doubt that defendant was aware of a serious risk of death or serious bodily injury, you may find him guilty of second-degree murder, for in that case his conduct may be deemed to indicate an extreme and wanton disregard for human life.