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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-914

DIANNA Y. LALCHAN, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF1-4987-13)

(Hon. Ronna L. Beck, Trial Judge)

(Argued June 1, 2022 Decided September 15, 2022)

Daniel Gonen, Public Defender Service, with whom Samia Fam and MikelMeredith Weidman, Public Defender Service, were on the brief, for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Matthew 

M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, 

and Cynthia G. Wright, Assistant United States Attorneys, were on the brief, for 

appellee.

Cindene Pezzell, William C. Perdue, and Sean A. Mirski were on the brief for 

Organizations Against Domestic Violence, amicus curiae in support of appellant.

Before EASTERLY, MCLEESE, and HOWARD, Associate Judges.
2

MCLEESE, Associate Judge: Appellant Dianna Y. Lalchan challenges her 

convictions for voluntary manslaughter while armed and possession of a firearm 

during a crime of violence. We vacate and remand.

I. Factual Background

Certain basic facts were undisputed at trial. Ms. Lalchan shot and killed her 

husband, Christopher Lalchan. Ms. Lalchan fired three bullets, one of which hit a 

wall and one of which hit the floor. When the final bullet was fired, Mr. Lalchan 

was facing Ms. Lalchan and moving forward. That bullet, which was fatal, hit Mr. 

Lalchan in the back of the head. Mr. Lalchan was near to the floor when he was 

struck by that bullet. Ms. Lalchan was some distance away from Mr. Lalchan at the 

time of the fatal shot. 

The dispute at trial was whether Ms. Lalchan acted with premeditated and 

deliberate malice or instead acted either in lawful self-defense or in good-faith but 

unreasonable self-defense. The United States argued that Ms. Lalchan murdered

Mr. Lalchan, mainly for financial and personal reasons surrounding their potential 

divorce. In support of that argument, the United States relied on the fact that Mr. 

Lalchan had been shot in the back of the head. The United States also elicited 
3

evidence that Ms. Lalchan was the breadwinner in the relationship and was worried 

about having to pay Mr. Lalchan alimony and splitting their property after their 

divorce. The United States also elicited evidence that Ms. Lalchan had realized 

during the marriage that she was attracted to women, and she was concerned that 

Mr. Lalchan would tell Ms. Lalchan’s conservative family about that. 

Ms. Lalchan testified that she shot Mr. Lalchan because she feared for her life. 

In support of that testimony, Ms. Lalchan introduced the following evidence. Early 

in their relationship, Mr. Lalchan became angry and smashed items such as Ms. 

Lalchan’s laptop. Mr. Lalchan’s violent behavior later escalated to shoving and 

slapping. The abuse culminated in Mr. Lalchan strangling Ms. Lalchan on several 

occasions. 

The first two times Mr. Lalchan strangled Ms. Lalchan occurred during 

arguments. Before he strangled her, Mr. Lalchan’s demeanor would suddenly 

change: he became quiet, shut down emotionally, and focused intently on stopping 

himself from exploding. Ms. Lalchan described that change as “like the Hulk” (the 

Marvel Comics character) when he is trying to hold himself back. In two of the 

incidents, Mr. Lalchan strangled Ms. Lalchan until she passed out. 
4

Mr. Lalchan strangled Ms. Lalchan a third time about two months before the 

shooting. In that incident, Mr. Lalchan lifted Ms. Lalchan by the neck with one hand 

while holding a gun with the other. Mr. Lalchan threw Ms. Lalchan into a wall and 

hit her with the gun. After that incident, Ms. Lalchan began looking into getting a 

divorce. 

On the night of the shooting, the Lalchans were arguing about the possibility 

of divorce. Mr. Lalchan threw a bicycle, punched a television, grabbed his gun, and 

threatened to commit suicide. Ms. Lalchan got the gun and put it down, but the

argument continued. Mr. Lalchan raised a mop handle over his head, threatening 

Ms. Lalchan with it. Ms. Lalchan grabbed the mop handle, and the two tussled over 

it. Eventually, Ms. Lalchan let Mr. Lalchan know that “this was it” and that he would 

not have any more chances. Mr. Lalchan said, “Do I need to shut you up?” He then 

shut down like he had before and came at Ms. Lalchan. Fearing that Mr. Lalchan 

might kill her, Ms. Lalchan grabbed the gun and shot Mr. Lalchan. 

Ms. Lalchan introduced evidence that she had told others about Mr. Lalchan’s 

physical abuse. She also introduced evidence, including photographs, of injuries 

that she testified were caused by the abuse. 
5

Dr. Mary Ann Dutton, a clinical psychologist specializing in domestic 

violence, testified as a defense expert. In brief, she testified as follows. Dr. Dutton 

focused her testimony more specifically on violence between intimate partners. She 

testified that “Battered Woman Syndrome” is a legal term, not a diagnosis of a 

psychological disorder. She also discussed a number of common misconceptions 

that people have about women who have been battered, including that such women 

are usually unemployed, meek, and financially dependent. 

Dr. Dutton testified that intimate-partner violence commonly escalates over 

time. Battered women often do not leave or report abuse, because they are 

embarrassed, fear that such steps might make the abuse worse, or hope that things 

will improve. Battered women who try to leave the relationship are at particularly 

high risk, facing a risk of abuse approximately four times greater than that faced by 

women who remain in the relationship. A woman who has previously been strangled 

is seven times more likely to be killed than a woman who has not previously been 

strangled. 

Dr. Dutton further testified that people who have suffered intimate-partner 

violence learn to identify cues indicating that violence is about to occur, such as a

look or a tone of voice. Over time, such cues can become all that is needed to put 
6

people who have suffered life-threatening abuse in fear for their lives. Such cues 

can cause an automatic response leading the person to fight back or flee. 

The jury acquitted Ms. Lalchan of first-degree murder and second-degree 

murder but found her guilty of voluntary manslaughter while armed and possession 

of a firearm during a crime of violence. 

II. Denial of the Requested Instruction

Ms. Lalchan argues that the trial court committed reversible error by declining 

to instruct the jury that it could consider the effects of battery in assessing whether 

Ms. Lalchan’s perception of danger was objectively reasonable. We agree.

A. Procedural Background

Ms. Lalchan asked the trial court to instruct the jury that, in determining 

whether Ms. Lalchan acted in lawful self-defense, the jury should consider whether 

Ms. Lalchan acted as a “reasonable woman with a history of trauma and the effects 

of battery.” The trial court denied the motion, concluding that the evidence that Ms. 

Lalchan suffered effects from prior battery could be considered in determining 
7

whether Ms. Lalchan subjectively perceived danger but had no bearing on whether 

Ms. Lalchan’s perception was objectively reasonable. In the trial court’s view, 

permitting such evidence to be considered on the issue of objective reasonableness 

would be contrary to this jurisdiction’s rejection of the defense of “diminished 

capacity.” E.g., Bethea v. United States, 365 A.2d 64, 83-92 (D.C. 1976).

B. Standard of Review

“[W]e review de novo whether challenged jury instructions adequately state 

the law.” Fleming v. United States, 224 A.3d 213, 219 (D.C. 2020) (en banc). The 

“refusal to grant a request for a particular instruction is not a ground for reversal if 

the court’s charge, considered as a whole, fairly and accurately states the applicable 

law.” Fearwell v. United States, 886 A.2d 95, 101 (D.C. 2005) (internal quotation 

marks omitted). “[A] special instruction is warranted when there is evidence of 

special facts sustaining a rational defensive theory.” Id. at 100 (brackets and internal 

quotation marks omitted). 
8

C. Analysis of the Trial Court’s Ruling

As we have previously noted, the trial court concluded that evidence of the 

effects of battery was not admissible to show that Ms. Lalchan’s perception of 

danger was objectively reasonable. The United States does not defend that ruling as 

correct. We conclude that the trial court’s ruling was incorrect. 

Deadly force may lawfully be used in self-defense only if the defendant 

“actually believe[s] and reasonably believe[s] that [the defendant was] in imminent 

peril of death or serious bodily harm.” Dawkins v. United States, 189 A.3d 223, 232 

(D.C. 2018) (internal quotation marks omitted). The “right of self-defense, and 

especially the degree of force [that a person] is permitted to use to prevent bodily 

harm, is premised substantially on the [person’s] own reasonable perceptions of what 

is happening.” Fersner v. United States, 482 A.2d 387, 391 (D.C. 1984). Such 

perceptions may include “an enhanced sense of peril based on personal knowledge 

that the attacker has committed prior acts of violence.” Id. (internal quotation marks 

omitted). We have therefore “recognized the relevance of expert testimony relating 

to battered woman’s syndrome . . . to establish the reasonableness of a complainant’s 

fear in a case where the complainant claims self-defense to a charge of violence 

against [the complainant’s] abuser.” Earl v. United States, 932 A.2d 1122, 1128 
9

(D.C. 2007) (internal quotation marks omitted). We see no basis for a different 

conclusion where, as in the present case, a defendant is relying on such evidence in 

support of a claim of self-defense. See Parker v. United States, 155 A.3d 835, 852 

(D.C. 2017) (Ferren, J., concurring) (“[I]n the case of a ‘battered spouse’ defense, a 

wife’s misperception that her husband was imminently threatening her life might 

justify a finding that her stabbing him was reasonable under the circumstances.”); 

see also, e.g., State v. Elzey, 244 A.3d 1068, 1083 (Md. 2021) (“The cyclical nature 

of an intimate battering relationship enables a battered spouse to become an expert 

at recognizing the warning signs of an impending assault from [the abuser]—signs 

frequently imperceptible to outsiders. For some victims, the sign may be ‘that look 

in the eye’ . . . .”) (internal quotation marks omitted); United States v. Lopez, 913 

F.3d 807, 822 (9th Cir. 2019) (“Fear which would be irrational in one set of 

circumstances may be well-grounded if the experience of the defendant with those 

applying the threat is such that the defendant can reasonably anticipate being harmed 

on failure to comply.”) (emphasis and internal quotation marks omitted); see 

generally, e.g., Mathews v. United States, 539 A.2d 1092, 1093 (D.C. 1988) (per 

curiam) (evidence of “defendant’s life experience and background as it bears on 

[defendant’s] rational perceptions” is relevant to objective reasonableness of action 

allegedly taken in self-defense). 
10

In denying the requested instruction, the trial court indicated that the 

instruction would be contrary to this jurisdiction’s prohibition of diminishedcapacity defenses. We disagree. We have formulated the concept of diminished

capacity in a variety of ways. See, e.g., Jackson v. United States, 76 A.3d 920, 933-

36 (D.C. 2013) (discussing various formulations). One common thread in those 

formulations is that diminished-capacity defenses rely on the idea that the defendant 

suffers from a mental “abnormality” that falls short of legal insanity. Id. In the 

present case, however, Dr. Dutton made clear that she was not testifying that Ms. 

Lalchan was suffering from a mental abnormality or illness. Rather, Dr. Dutton 

explained that persons who have been subjected to intimate-partner abuse can learn, 

both consciously and unconsciously, to perceive signs that such abuse may be 

coming, just as children can learn to sense from facial cues that their parents are very 

upset with them. Persons who have been subjected to intimate-partner abuse also 

can develop automatic responses to such signs, through the process of conditioned 

learning. These are ordinary human reactions, not an abnormal mental state or 

disorder. Dr. Dutton’s testimony thus did not run afoul of the prohibition on 

introducing evidence of diminished capacity. Cf. Jackson, 76 A.3d at 935 

(prohibition on diminished-capacity defenses does not “sweep in . . . defenses that 

have nothing to do with a claim of diminished capacity”) (citing Ibn-Tamas v. United 
11

States, 407 A.2d 626, 631-40 (D.C. 1976) (expert testimony about battered-women 

syndrome was potentially admissible on issue of self-defense)).

D. Alternative Grounds for Affirmance

The United States argues that the trial court’s ruling can be affirmed on four

alternative grounds. In appropriate circumstances, this court can affirm a trial

court’sruling on a ground not relied upon by the trial court. E.g., Randolph v. United 

States, 882 A.2d 210, 218 (D.C. 2005). That principle has limits, however. We must 

be sure to avoid procedural unfairness, and we may not disregard the discretionary 

authority of the trial court. Id. at 218-19. We are not persuaded by the alternative 

grounds for affirmance presented by the United States.

1. Wording of the Defense Request

The United States argues that the requested instruction was vague, poorly 

worded, and slanted toward the defense. The United States did not make those 

arguments in the trial court, and they were not the basis of the trial court’s ruling. If 

the United States had made those arguments in the trial court, the defense and the 

trial court would have had the opportunity to address them, making any necessary 
12

revisions. Cf., e.g., Stack v. United States, 519 A.2d 147, 156 (D.C. 1986) 

(“Assuming, as the government suggests, that the first paragraph of the requested

instruction would have unduly emphasized the defense version of the evidence, the

judge easily could have made appropriate modifications.”).

In requesting the instruction, the defense adequately drew the trial court’s 

attention to the legal principle on which the defense was relying: expert testimony 

about battery and its effects was relevant to the objective reasonableness of Ms. 

Lalchan’s conduct. The trial court denied the request not because of issues with the 

wording of the requested instruction but rather because the trial court believed—

incorrectly, in our view—that the request rested on a legally invalid theory. We 

conclude that it would be procedurally unfair to affirm the trial court’s ruling on the 

basis of perceived deficiencies in the precise wording of the requested instruction. 

See, e.g., Pannu v. Jacobson, 909 A.2d 178, 197 (D.C. 2006) (“Even though a trial 

court is under no obligation to give any particular requested instruction, if the request 

directs the court’s attention to a point upon which an instruction to the jury would 

be helpful, the court’s error in failing to charge may not be excused by technical 

defects in the request.”) (brackets and internal quotation marks omitted); Whitaker 

v. United States, 617 A.2d 499, 507-08 (D.C. 1992) (on rehearing) (“Assuming, 

without deciding, that defense counsel’s proposed instruction was not phrased with 
13

sufficient precision, and that it ought not to have been given in counsel’s exact

words, this did not obviate the necessity for some effective reinstruction . . . .”).

For essentially the same reasons, we are not persuaded by the United States’s 

argument that the defense’s request did not suffice to preserve for appeal the 

arguments that Ms. Lalchan advances in this court. 

2. Lack of a Diagnosis

The United States suggests that the evidence did not support the requested 

instruction, because Dr. Dutton never diagnosed Ms. Lalchan with battered-woman 

syndrome. We disagree. Dr. Dutton explained that she was not testifying about a 

diagnosed mental illness, but rather was testifying about intimate-partner violence 

and its common effects. In any event, we have previously held that Dr. Dutton’s 

testimony about battered-woman syndrome, offered in a different case on behalf of 

the prosecution, was admissible even though Dr. Dutton had not examined or 

diagnosed the complaining witness. Nixon v. United States, 728 A.2d 582, 591-95

(D.C. 1999). We see no basis for a different conclusion here.
14

3. Other Instructions

The United States argues that other instructions adequately communicated the 

relevant law to the jury. We conclude to the contrary.

The trial court’s instructions to the jury stated that self-defense applied if Ms. 

Lalchan “actually believed that she was in danger of serious bodily injury and 

actually believed that the use of deadly force was necessary to defend against that 

danger and both of those beliefs were reasonable.” The instructions further 

explained that the question was whether Ms. Lalchan, “under the circumstances as 

they appeared to her at the time of the incident, actually believed she was in 

imminent danger of bodily harm and could reasonably hold that belief.” Finally, the 

instructions informed the jury that evidence of “past acts of violence” by Mr. 

Lachlan could bear on the “reasonableness” of Ms. Lalchan’s “fear for her safety.” 

In our view, the instructions as a whole did not adequately explain to the jury 

that the objective reasonableness of Ms. Lalchan’s conduct could be understood in 

light of the effects of any prior abuse on Ms. Lalchan’s perceptions at the time of the 

incident. In fact, it would be quite surprising if the instructions as a whole 

communicated that principle to the jury. In denying the defense request, the trial 
15

court held that the requested instruction was contrary to law. Presumably, the trial 

court did not intend the instructions to communicate a principle that the trial court 

believed was legally incorrect.

We hold that a specific instruction on the effect that intimate-partner violence 

can have on reasonable perceptions of danger was required in the circumstances of 

this case. See, e.g., Smith v. State, 486 S.E.2d 819, 823 (Ga. 1997) (“We take this 

opportunity to announce the rule that when a battered person syndrome self-defense 

claim has been properly established, the court should give specific jury instructions 

on justification by self-defense which are tailored to explain how the defendant’s 

experiences as a battered person affected that defendant’s state of mind at the time 

of the killing.”); State v. Gartland, 694 A.2d 564, 575 (N.J. 1997) (per curiam) (“The 

charge on self-defense should . . . have been tailored to the circumstances of the 

case. . . . At a minimum, the jury . . . should have been asked to consider whether, 

if it found such to be the case, a reasonable woman who had been the victim of years 

of domestic violence would have reasonably perceived on this occasion that the use 

of deadly force was necessary to protect herself from serious bodily injury.”).
16

4. Harmless Error

The United States argues that the denial of the requested instruction was 

harmless. We disagree.

The parties dispute whether harmlessness should be assessed under the 

standard generally applicable to constitutional errors or the less-stringent standard 

applicable to non-constitutional errors. Compare Chapman v. California, 386 U.S. 

18, 23-24 (1967), with Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). We 

need not address that issue, because we hold that the failure to give the requested 

instruction was harmful under the Kotteakos standard. To hold a non-constitutional 

error harmless, we “must find it highly probable that the error did not contribute to 

the verdict.” Moghalu v. United States, 263 A.3d 462, 472 (D.C. 2021) (brackets 

and internal quotation marks omitted). We are unable to make such a finding in this 

case.

Ms. Lalchan’s sole defense was that she shot Mr. Lalchan in self-defense. The 

acquittals indicate that the jury accepted that Ms. Lalchan may have acted out of a 

subjective fear of injury, rather than with premeditation or unmitigated malice. The 

guilty verdict on manslaughter, however, indicates that the jury concluded that Ms. 
17

Lalchan did not have an objectively reasonable fear of injury. For the reasons we 

have explained, the denial of the requested instruction left the jury without adequate 

guidance about the potential relevance of Dr. Dutton’s testimony to that issue. 

In arguing that any error on this point was harmless, the United States asserts 

that defense counsel was able to argue to the jury in closing argument that Dr. 

Dutton’s testimony about the effects of intimate-partner abuse was relevant to the 

objective reasonableness of Ms. Lalchan’s conduct. We note to the contrary that 

defense counsel never explicitly asserted that point to the jury, presumably because 

the trial court had ruled that the law was otherwise. In any event, even if defense 

counsel had conveyed the point in closing arguments, there is a critical difference 

between instructions from the court and the arguments of counsel. See, e.g., Stack, 

519 A.2d at 156 (defense counsel’s ability to argue point “to the jury in closing does 

not cure the [instructional] error since the jury must be instructed on the legal 

principles which are to guide its deliberations, and the court has the obligation to 

state those principles in the instructions”); see also Boyde v. California, 494 U.S. 

370, 384 (1990) (“[A]rguments of counsel generally carry less weight with a jury 

than do instructions from the court. The former . . . are likely viewed as the 

statements of advocates; the latter . . . are viewed as definitive and binding 

statements of the law.”); Carter v. Kentucky, 450 U.S. 288, 304 (1981) (“Arguments 
18

of counsel cannot substitute for instructions by the court.”) (brackets and internal 

quotation marks omitted).

In sum, we conclude that the refusal to give the requested instruction was 

harmful error. 

III. Other Issues

We briefly discuss two additional issues that might arise in any retrial. Both 

issues involve the trial court’s overruling of objections to the prosecutor’s closing 

argument. First, Ms. Lalchan challenges the prosecutor’s comment that it was 

unclear when certain photographs introduced by Ms. Lalchan had been taken, 

because those photographs, as admitted into evidence, lacked metadata indicating 

their date. Ms. Lalchan represented in the trial court that the photographs, as 

provided to the United States in discovery, contained such metadata. The United 

States has not disputed that representation. We agree that this comment was 

impermissible. See, e.g., Powell v. United States, 880 A.2d 248, 258 n.23 (D.C. 

2005) (reminding prosecutors “to guard against inviting inferences of fact arguably 

contrary to evidence of which they are aware but which is not of record in a case”).
19

Second, Ms. Lalchan objects to the prosecutor’s suggestion that Ms. Lalchan’s 

testimony referring to the Hulk was the product of coaching by defense counsel. 

Specifically, the prosecutor argued, 

[O]ne of the things that you won’t hear . . . [in Ms. Lalchan’s statement 

to the police] is . . . the word Hulk. That is a new creation. . . . . Now, 

you had a chance to see [Ms. Lalchan] on the stand when she was 

testifying. And, when she testified for the defense, after she’d been 

rehearsed and practiced and talked to . . . . 

We agree that this argument was impermissible. See, e.g., Diaz v. United States, 716 

A.2d 173, 180 (D.C. 1998) (concluding that prosecutor impermissibly urged jury to 

draw adverse inference from defendant’s exercise of right to counsel, where 

prosecutor argued that defendant made story up after “consultation with his attorney 

to tell you the story that he told you here today”) (brackets, ellipses, and internal 

quotation marks omitted).

For the foregoing reasons, we vacate the judgment of the Superior Court and 

remand the case for further proceedings.

So ordered.