dissenting:
The majority opinion holds that the trial court erred in giving the standard instruction on express malice. It nevertheless concludes that viewing the instructions as a whole the jury was not confused. I respectfully disagree. The record indicates *602that the instruction, which in effect said express malice exists where a killing occurs in the course of a “wrongful act,” and “wrongful act” may be defined as speeding from the police, could not have been ignored by the jury. The jury was twice instructed on this issue, the second time following a second request for reinstruction, which indicates that this issue was troublesome.1
The trial court’s instruction on “express malice” was inappropriate on the facts of the case. There is no basis for an “express malice” instruction on the facts and even if there were such a basis, the instruction given here was erroneous. The court gave the standard jury instruction on express malice from the “red book”2 and then added an additional instruction defining wrongful act. The total of the court’s instruction was both confusing and, on the facts of this case,3 an incorrect statement of the law and inappropriately given. Under the instruction the jury only had to find that appellant was speeding from the police and a death had occurred in order to convict him of second-degree murder. The fact that the instruction was the standard jury instruction is not dispositive. Carter v. United States, 141 U.S.App.D.C. 259, 262 n. 11, 437 F.2d 692, 695 n. 11 (1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 655 (1971) (jury’s attention may be more clearly focused upon the critical issues for its decision by careful modification of the instructions in light of the particular facts of the case, than by a series of abstract principles unrelated to any factual situation, as could become the ease with standardized instructions).4
The cases in this jurisdiction do not provide a definition of “express malice” other than reiteration of the standard instruction without explanation.5 Similarly, I have found no case which describes express malice in the terms used in the “red book” instruction — “unlawfully kills another in pursuance of a wrongful act or unlawful purpose, without legal excuse” — except in quoting the standard instruction itself.6 Furthermore, federal jury instructions do *603not include either this language or the confusing concepts of “express” and “implied” malice.7 Yet they clearly convey the two basic states of mind which are required for a finding of malice — (1) to have a specific intent to kill or to cause serious bodily injury, and (2) to act in a reckless manner with a callous disregard for the life and safety of others. The instant case presents only the second type of malice, since there is no evidence that appellant had a specific intent to kill or cause serious injury.
If the terms “express” and “implied” are to be used (despite their lack of precision or definition and the potential for confusion8) and the different labels are to indicate different states of mind, as opposed to different methods of proof,9 then express malice can only apply to acts involving specific intent (either intent to kill the decedent, intent to kill another, or intent to cause great bodily harm to the decedent or another). Perkins, supra, at 548-49. Various treatises and articles have dispensed with *604the labels and instead noted that a homicide is “murder” when one of the various requisite states of mind is present.10 Of these states of mind, felony-murder is not at issue in this case. Neither is the “resisting arrest” type of murder. See supra note 10. That leaves “depraved-heart” murder (Wharton’s # 4) and the various specific intent type murders (Wharton’s # 1, 2 and 3; LaFave & Scott # 1 and 2). Thus, if labels are necessary, the depraved-heart type of murder, such as we have seen in this case, is one in which malice is “implied,” and the specific intent types of murder are those in which malice is “express.”
Therefore, the “express malice” instruction is not an accurate statement of the law and even if it were accurate in some circumstances, it is not on the facts of this ease. In defining “wrongful act” as speeding to avoid the police,11 the trial court blurred any distinction between “implied” and “express” malice. Furthermore, the court’s definition of “wrongful act” had the effect of making it easier to convict appellant of second degree murder than manslaughter. See Green v. United States, supra note 5, 132 U.S.App.D.C. at 100, 405 F.2d at 1368 (where jury could have based its verdict on more than one theory, and one improperly submitted to jury in trial court’s instructions, general verdict not permitted to stand). If any “wrongful act,” whether criminal or not, could constitute the basis for a second-degree murder conviction, there would be no need for a misdemeanor/manslaughter rule; any act which is a misdemeanor would be a wrongful act, but acts which are not criminal could also constitute a sufficient basis for a murder conviction.
Finally, the prosecutor misstated the law in opening and closing arguments with respect to the “depraved heart,” “wanton disregard for life” type of malice [implied malice]. Defense counsel objected to the prosecutor’s opening statement, in which she said at least five times, that the jury could apply a reasonable man test, and moved for a mistrial; the mistrial was denied, the court commenting that the defense would have a chance to argue its own version of malice and then the court would instruct the jury on the law. In closing argument, the prosecutor told the jury:
[Y]ou are going to hear the Judge instruct you that we charge a person not only with what he actually knows but what a reasonable person in the same circumstances would have taken into account. The reason for that is obvious. *605We don’t excuse people merely because they close their eyes to it....
The standard is not what a reasonable person would have known in the situation but what this defendant in fact knew. See United States v. Dixon, 135 U.S.App.D.C. 401, 404-06, 419 F.2d 288, 291-93 (1969) (Leventhal, J., concurring) (government must prove that defendant was in fact aware of risk involved but nevertheless continued his action); United States v. Bradford, 344 A.2d 208, 215 & n. 22 (D.C. 1975) (“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”). Thus, not only was the express malice instruction incorrect but there was potential confusion with respect to the implied malice instruction.
Accordingly, I would reverse and remand for a new trial.
. After the jury retired to deliberate, it returned with a first note requesting reinstruction on manslaughter and involuntary manslaughter. Following reinstructions and further deliberation, a second note from the jury requested reinstruction on murder in the second degree and manslaughter.
. Criminal Jury Instructions for the District of Columbia, No. 4.23 (3d ed. 1978) (Murder in Second Degree).
. The evidence at trial included Police Lieutenant Sevilla’s testimony that immediately prior to the impact of appellant’s car with the car in which the victim was a passenger, the officer saw appellant swerve his car to the left and then to the right on the ramp and saw the brake lights flash on. Another witness also saw the brake lights of appellant’s car go on immediately prior to the impact.
. Defense counsel requested that the standard instruction on express malice not be given. He argued this was not a case of express malice and the instruction would confuse the jury, and offered an alternative instruction. The court declined to give the alternative instruction, and also denied defense counsel’s request that no mention be made of express malice in the jury instruction. The government incorrectly contends that a plain error standard should apply because appellant "acquiesced” in the language of the instruction given by the court, citing Carter v. United States, 475 A.2d 1118, 1125 (D.C.1984). In Carter, however, the "claim of instructional error" was not raised at trial.
. See, e.g., McClurkin v. United States, 472 A.2d 1348, 1357 (D.C.1984) (malice may be express or implied, express malice exists where one unlawfully kills another in pursuance of a wrongful act or unlawful purpose without legal excuse); United States v. Kearney, 212 U.S.App.D.C. 319, 325, 659 F.2d 1203, 1209 (1981) (MacKinnon, J., dissenting) (quoting standard instruction); Carter v. United States, supra, 141 U.S.App.D.C. at 262 n. 12, 437 F.2d at 695 n. 12 (quoting standard instruction). In Carter, the court noted that malice cannot be equated with conduct involving no more than an intentional act (citing Green v. United States, 132 U.S.App.D.C. 98, 405 F.2d 1368 (1968)).
. The only reference to similar language is found in the context of the history of the felony-murder doctrine.
Coke is probably responsible for the birth of the [felony-murder] doctrine when, in 1644, he said, ‘that a death caused by any unlawful act is murder.’ He illustrated thus: If a man shoots at a wild fowl and accidental*603ly kills a man, that is an excusable homicide because the act of shooting is not unlawful; but if a man shoots at a cock or hen belonging to another man and accidentally kills a man, that is murder because the act is unlawful. The doctrine was later limited to cases where the unlawful act amounted to a felony.
2 C. Torcía, Wharton's Criminal Law § 145 (1979).
Similarly, Perkins' comment that "an intent to do an act under such circumstances that there is obviously a plain and strong likelihood that death or great bodily harm may result” is sufficient to constitute malice, refers to a situation evincing a wanton disregard for the life and safety of others. Perkins, A Re-examination of Malice Aforethought, 43 Yale L.J. 537, 566 (1934). Thus, the act does not serve as a predicate for a finding of express malice.
See also Curry v. United States, 322 A.2d 268, 270-71 (D.C.1974) (instruction about express malice derived from general instruction on malice).
. The malice instruction in Devitt & Blackmar, Federal Jury Practice and Instructions § 41.05 (1977) is:
"Malice aforethought” means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but "malice aforethought” does not necessarily imply any ill will, spite or hatred toward the individual killed.
"Malice," as the term is used here, is but another name for a certain state or condition of a person’s mind or heart. Since no one can look into the heart or mind of another, the only means of determining whether or not malice existed at the time of a killing is by inference drawn from the surrounding facts and circumstances, as shown by the evidence in the case.
The comment to this instruction states that language similar to the language in our instruction was deleted. "The statement that ' “malice aforethought” may be manifested by willfully doing any unlawful act,’ has been omitted as unnecessary and possibly prejudicial to a defendant.” Comment to § 41.05, at 217.
Similarly, the Manual of Model Jury Instructions for the Ninth Circuit, § 8.11A (1984) defines malice as:
To kill with malice aforethought means either:
1. To deliberately and intentionally kill another person, or
2. To act with callous and reckless disregard for human life.
It is not necessary that the defendant hated the person killed, or felt ill will toward him at the time. Use of a weapon or other instrument in a way that causes death is evidence of malice aforethought.
. One commentator has noted:
The terms "express malice aforethought” and "implied malice aforethought,” as they are now used, are the accidental result of a long series of decided cases. They have tended much to confuse the law of felonious homicide. If one single contribution of value has been made by them it remains as yet undiscovered. But they cannot be ignored because of their frequent appearance in the legal literature. The common law felt no particular urge to define them with precision because the punishment were [sic] the same whichever label was applied. Hence the lack of uniformity of definition need occasion no surprise.
Perkins, supra, at 548.
; There is an argument that "implied malice” refers to a situation in which the requisite mental state — for example, callous disregard for life and safety of others — is implied from the circumstances rather than stated "expressly." See supra, Devitt & Blackmar Instructions, at ¶ 2. However, this definition is not accurate nor helpful since the actual state of mind can never be "expressly” determined and must always be inferred from the circumstances and the actor’s conduct. See Perkins, supra, at 549-50 ("To avoid this confusion the word ‘implied’ should be rejected when an inference of fact is intended.”).
. According to Wharton's, supra, § 137.
The phrase ‘malice aforethought’ has become a mere symbol denoting various mental states, such as (1) intent to kill; (2) intent to cause great bodily harm; (3) intent to do an act knowing that it will probably cause death or great bodily harm; (4) intent to commit an act imminently dangerous to others and evincing a depraved and malignant heart regardless of human life and fatally bent on mischief; (5) intent to commit a felony; and (6) intent to use force upon a law enforcement officer to avoid arrest or facilitate escape from custody.
Similarly, W. LaFave & A. Scott, Criminal Law § 67 (1972) define the "various modern types of murder” which exist today in most jurisdictions and include a fifth which occasionally is considered:
(1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3) felony-murder; (4) depraved-heart murder; (5) resisting lawful arrest murder.
The mental state required in resisting a lawful arrest is not really a separate state of mind since the circumstances of a specific case will fit within one of the other states of mind.
Though some dicta have indicated that an unintended homicide caused by conduct in resisting a lawful arrest constitutes a separate category of murder, it seems clear that there is no such separate category. To impose murder liability upon one who kills while resisting lawful arrest it is necessary to place him under one of the other recognized categories (intent to kill or do serious bodily injury, depraved heart, felony murder).
LaFave & Scott, supra, § 72.
. The instruction was: "You may find, but you are [sic] required to find that fleeing from the police in an automobile at high speeds in order to arrest — in order to avoid arrest is a wrongful act or unlawful purpose.” The trial court omitted the word "not” when it initially instructed the jury at the close of all the evidence. When the court reinstructed the jury after receiving its second note, it did not omit the word "not".