dissenting:
Today the majority pays lip-service to an exacting standard of criminal law that is well-nigh axiomatic: “[W]hen a defendant requests an instruction on [a] theory of the case” that negates his guilt of the crime charged, and “that instruction is supported by ‘any evidence, however weak,’ an instruction stating the substance of the [defendant’s theory] must be given.” Henderson v. United States, 619 A.2d 16, 19 (D.C.1992) (quoting Gethers v. United States, 556 A.2d 201, 204 (D.C.1989) (emphasis in original) (quoting Gray v. United States, 549 A.2d 347, 349 (D.C.1988))).
I.
My colleagues recognize that the evidence in this case was such that appellant’s request for a voluntary manslaughter instruction, under a theory of “imperfect self-defense,” should have been granted, and that the trial court erred in denying that request.1 They correctly reject the government’s three-pronged argument that appellant was not entitled to an imperfect self-defense manslaughter instruction because (1) the claimed “provocation” by the deceased was inadequate as a matter of law, (2) the appellant used excessive force in defending himself (which I find most disturbing of all), and (3) the appellant voluntarily placed himself in a position likely to provoke trouble. They also correctly follow precedent in noting that an imperfect self-defense claim, as well as a self-defense claim, must be viewed through the prism of the state of mind (whether reasonable or unreasonable) of the accused. Comber, supra, 584 A.2d at 40-42; Adams v. United States, 558 A.2d 348 (D.C.1989). Thus quoting Comber, supra, they reiterate, “‘even an intentional killing, if it comports with legally accepted notions of self-defense, is not malicious; it is excused and accordingly no crime at all.’” Majority op. at 930 (quoting Comber, supra, 584 A.2d at 41 (citation omitted)). They conclude that “[s]ince a belief that is both actually held and objectively reasonable is a complete exoneration from a charge of homicide” it seems indisputable that “a defendant’s actual belief both in the *938presence of danger and the need to resort to force, even if one or both beliefs be objectively unreasonable, constitutes a legally sufficient mitigating factor to warrant a finding of voluntary manslaughter rather than second-degree murder.”2 Majority op. at 931.
Having found error, the majority undertakes a harmless error analysis which is inappropriate for three reasons: (1) it is legally convoluted in its reliance on inapposite cases, (2) it reaches a conclusion contrary to established law, including the authorities relied upon, and (3) in the factual circumstances of this case, it amounts to appellate speculation.
II.
This court has stated that “the trial court commits reversible error when it refuses to present adequately a defendant’s theory of the defense.” Stack v. United States, 519 A.2d 147, 154 (D.C.1986); accord, West v. United States, 604 A.2d 422, 428 (D.C.1992); Gray, supra, 549 A.2d at 349; Levine v. United States, 104 U.S.App.D.C. 281, 282-83, 261 F.2d 747, 748 (1958). The majority does not address this line of cases. Instead, it admittedly borrows its harmless error analysis from a line of insufficiency of evidence cases which are clearly distinguishable from the instant case in that defendants in those cases had no right to inclusion of the instruction that they claimed the trial court erroneously omitted. See, e.g., Morgan v. United States, 363 A.2d 999, 1002 (D.C.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977) (holding that requested manslaughter instruction was not erroneously denied where defendant presented “no evidence of provocation and no facts of provocation can be inferred which would have given him a scintilla of a defense against murder”); Belton v. United States, 127 U.S.App.D.C. 201, 207-08, 382 F.2d 150, 156 (1967) (holding that requested manslaughter instruction was not erroneously denied where there was “no testimony” to support the theory underlying the instruction3).4 These cases did not involve harmless error but rather no error; neither did they involve self-defense. In Morgan and Belton, there was not a scintilla of evidence to support requested instructions on manslaughter. In the instant case, where we have found that scintilla of evidence, and, consequently, have found error, we can gain no comfort from the Belton and Morgan cases.
By contrast, in Gray, supra, we held that the trial court erred in failing to give a defense-requested alibi instruction when it was warranted. Rejecting the government’s assertion of harmlessness, we observed that while we need not adopt a per se rule that such failure could never be harmless, we found it difficult to imagine a case where such an error could possibly be harmless. 549 A.2d at 351.
III.
In the circumstances of the instant case, like those of Gray, supra, we simply cannot use a jury’s verdict to speculatively append the word “harmless” to a trial error. Thus, to the extent that I understand the reasoning of the majority, the error of the trial court (which it confirms) was harmless because the jury convicted appellant of first-degree premeditated murder after having been instructed on the lesser included offense of second-degree murder. This reasoning — that the *939jury did not believe and thus would not have believed, even if properly instructed, that appellant killed in the belief that his life was in danger5 — embraces a degree of layman’s logic.
In the circumstances of this case, whether we focus on a layman’s predilection, or the logic of law, this reasoning places the cart before the horse. I believe, on the facts of this case, a properly instructed jury should have been required to acquit of first-degree murder unless it found that the government had met its burden of disproving the evidence of the mitigating circumstance of imperfect self-defense (in addition to the justification of self-defense). See Comber, supra, 584 A.2d at 40-42 n. 17; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 14 (4th ed. 1998);6 cf. Harris v. United States, 618 A.2d 140, 148 (D.C.1992) (government has burden of proving that defendant did not act in self-defense); Speed v. United States, 562 A.2d 124, 129 (D.C.1989) (same). Because the court did not inform the jury that the government was required to disprove the evidence of imperfect self-defense in the instant case, we cannot bolster our conclusion that the instnictional error committed here was harmless by relying in any way on the jury’s verdict. As appellant’s counsel correctly notes, premeditation and *940deliberation are not surrogates for providing the absence of self-defense or mitigating circumstances.
Whatever our intense, and certainly understandable apprehension of crime, we must not succumb to the temptation of routinely characterizing significant trial errors, which invite jury speculation, as harmless. A new trial may burden our taxpayers (including judges) with additional time and expense but so does the building and staffing of additional prisons for the incarceration of those who have legitimate defenses that cushion the degree of guilt (affecting the length of incarceration) for the crimes with which they have been charged.
I respectfully dissent.
. Trial counsel requested an “imperfect self-defense" manslaughter instruction (which, if accepted by the jury, negates the “malice” necessary to sustain a murder conviction) in reliance on our decision in Comber v. United States, 584 A.2d 26, 40-42 (D.C.1990) (en banc). The trial court, who aptly noted that “self-defense [is] a complete defense to whatever degree of homicide you are talking about," was inclined to give the manslaughter instruction on the imperfect self-defense theory. However, the prosecutor, apparently theorizing that where excessive force is involved a claim of provocation cannot negate the presence of malice, convinced the trial court not to give the manslaughter or "imperfect self-defense" instruction. The court did give a self-defense instruction after the instructions on first-degree and second-degree minder.
. In view of the holding of Comber, I question whether the phrase “rather than second degree murder” should be rephrased as "rather than murder.” See note 6, infra.
. Further, the Belton court noted that trial counsel had failed to advance to the court any factual predicate for the requested instruction. The court went on to say that if trial counsel had advanced even the very tenuous theory in support of the instructions that was articulated for the first time on appeal, the trial court "would have been well advised to give the manslaughter instruction.” 127 U.S.App.D.C. at 207, 382 F.2d at 156.
.The majority’s reliance on Nelson v. United States, 601 A.2d 582, 594-95 (D.C.1991) is also misguided. In Nelson, we held that the jury’s finding of defendant’s guilt on a burglary charge, established the mental state necessary for felony murder in spite of the fact that the court erred by refusing to give an instruction on the lesser included offense of second-degree murder. On the facts of the instant case, the jury’s finding that appellant premeditated and deliberated says nothing about whether the jury would have found that the government had also proved that there were no mitigating circumstances, which is arguably an element of first-degree murder when imperfect self-defense manslaughter is a lesser included offense. See note 6, infra.
. To buttress this theory of "belief" that premeditation and deliberation cannot reasonably exist with an immediate response to mortal peril, the majority points to two brief and insignificant utterances by appellant. The majorhy does not place these utterances in the context of its earlier recitation of appellant’s “version” of the facts which include his prior injury, his fear, and provocation by a threatening victim — presumably the same version which has led us to conclude that the trial court erred in refusing to give the requested instruction.
Although we might conclude on the basis of its verdict that the jury rejected appellant’s claim that he did not reflect before shooting the decedent, we cannot assume that the jury also would have rejected appellant’s contention that he believed (albeit unreasonably) that he was in mortal danger, a factor that would be pertinent in determining whether he acted in imperfect self-defense. See Comber, supra, 584 A.2d at 41.
My colleagues postulate an additional conclusion they are confident in drawing from this erroneously instructed jury’s verdict, stating
[a] juiy instructed that it could not convict appellant of even second-degree murder if it was not satisfied beyond a reasonable doubt that [appellant] did not act out of “terror and fear" surely would not have convicted appellant of first-degree murder with any semblance of belief in appellant’s claimed self-defense state of mind.
Majority op. at 935. This conclusion is by no means inescapable. To the contrary, if we presume, as we must, that the jury followed its instructions, Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706, 95 L.Ed.2d 176 (1987), the jury would not consider appellant’s "terror and fear” unless it first determined that such feelings were "caused by adequate provocation." While adequate provocation is necessary to sustain a finding of mitigation based on a heat of passion theory, it is not a necessary predicate to a finding of mitigation based on an imperfect self-defense theory. See Comber, supra, 584 A.2d at 42-43. For this same reason, the majority's reference to this court’s decision in Hurt v. United States, 337 A.2d 215 (D.C.1975) (per curiam) is unpersuasive as it addresses adequate provocation as a mitigating circumstance. Id. at 218-19.
. Criminal Jury Instruction No. 4.18 (which follows the guidance of our en banc decision in Comber) is the appropriate instruction in a first-degree murder case such as this, where the defendant has requested and the evidence supports instruction on the lesser-included offenses of second-degree murder and imperfect self-defense manslaughter. See Instruction No. 4.18, at 280. According to this instruction, in order to convict a defendant of first-degree murder the jury must find that the government has proved "beyond a reasonable doubt,” see, e.g., Harris v. United States, 618 A.2d 140, 148 (D.C.1992), that "there were no mitigating circumstances,” Instruction No. 4.18(A)(5).
The instruction defines mitigating circumstances to include instances in which
a person honestly but unreasonably believes that s/he is acting in self-defense. This may occur when s/he honestly but unreasonably believes that s/he is in danger of serious bodily injury or when s/he honestly but unreasonably believes that the force s/he uses is necessary to defend him/herself.
Instruction No. 4.18, at 282. The notes accompanying the instruction describe the presence of mitigating circumstances as
a partial defense. If the government fails to prove that there were no mitigating circumstances, but proves all other elements of murder, the resulting crime is voluntary manslaughter. As stated in Comber, “[A] homicide constitutes voluntary manslaughter where the perpetrator kills with a state of mind which, but for the presence of mitigating circumstances, would render the killing murder.”
Instruction No. 4.18, at 284-85 (quoting Comber, supra, 584 A.2d at 42). In the instant case, the court did not indicate to the jury that the government must prove that there were no mitigating circumstances in order to find the defendant guilty of first-degree murder.