District of Columbia Court of Appeals No. 13-CF-1133 OCT - 6 2016 DOMINIQUE BASSIL, Appellant,
v. CF1-15572-11
UNITED STATES, Appellee.
On Appeal from the Superior Court of the District of Columbia Criminal Division
BEFORE: WASHINGTON, Chief Judge; GLICKMAN, Associate Judge; and BELSON, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that appellant’s convictions are affirmed.
For the Court:
Dated: October 6, 2016.
Opinion by Associate Judge Stephen H. Glickman. Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-1133 10/6/16 DOMINIQUE BASSIL, APPELLANT,
V.
Appeal from the Superior Court of the District of Columbia (CF1-15572-11)
(Hon. Robert E. Morin, Trial Judge)
(Argued: September 29, 2015 Decided: October 6, 2016)
Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein and Christine A. Monta, Public Defender Service, were on the brief, for appellant.
L. Jackson Thomas, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, and Michelle D. Jackson, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and BELSON, Senior Judge.
GLICKMAN, Associate Judge: Shortly after 2 a.m. on August 13, 2011,
Dominique Bassil fatally stabbed her boyfriend, Vance Harris, in the kitchen of
their apartment. There were no other witnesses to the encounter. Although Bassil 3
told police and testified at her trial that she acted in self-defense, the jury convicted
her of murder in the second degree while armed. On appeal, Bassil contends there
was insufficient evidence at trial to disprove her claim of self-defense. She argues
that no witnesses or other evidence contradicted her account, and that even if the
jury did not find her credible, mere disbelief of a witness’s testimony cannot justify
a finding that the opposite is true. In response, the government argues that there
was ample evidence permitting the jury to find beyond a reasonable doubt that
Bassil did not stab Harris in self-defense. Viewing the evidence, as we must, in the
light most favorable to sustaining the jury’s verdict, we agree with the government
and affirm appellant’s conviction.
I. Governing Legal Principles
The principles of law governing our consideration of appellant’s contention
are best set forth at the outset to frame our discussion. To find appellant guilty of
second-degree murder, the jury must have been persuaded beyond a reasonable
doubt that she killed Harris with “malice aforethought,”1 a “term of art embodying
several distinct mental states” including “specific intent to kill,” “specific intent to
1 D.C. Code § 22-2103 (2012 Repl.). 4
inflict serious bodily harm,” or “wanton and willful disregard of an unreasonable
human risk.”2 The absence of justification, excuse, or mitigation is “an essential
component” of malice aforethought; the government therefore bore the burden of
disproving appellant’s claim that she killed Harris in justified self-defense.3
“[A] killing in self-defense is excusable only as a matter of genuine
necessity.”4 Appellant therefore was justified in stabbing Harris in self-defense
provided that (1) she honestly believed she was in imminent danger of serious
bodily harm or death, and that she needed to use deadly force to save herself from
that danger; and that (2) both those beliefs were objectively reasonable under the
circumstances.5 In addition, even if those conditions were met, appellant would
not be able to justify the stabbing as self-defense if (3) she was the first aggressor
or (4) she provoked Harris to attack her, unless she thereupon withdrew in good
2 Comber v. United States, 584 A.2d 26, 38-39 (D.C. 1990) (en banc). 3 Id. at 41 & n.17 (“[T]he government’s obligation to disprove justification, excuse, or mitigation arises only when there is some evidence of one or more of these circumstances in the case.”). 4 Andrews v. United States, 125 A.3d 316, 322 (D.C. 2015) (quotation omitted). 5 See Richardson v. United States, 98 A.3d 178, 187 (D.C. 2014); see also Criminal Jury Instructions for the District of Columbia, Nos. 9.500—9.502 (5th ed. rev. 2015). 5
faith and communicated her withdrawal to Harris.6 So long as there was some
evidence from which a reasonable fact finder could conclude that appellant acted
in justifiable self-defense, she was entitled to the jury instruction. It was not
appellant’s burden to prove her claim. Rather, as the jury was instructed, the
burden was on the government to disprove it. Thus, to defeat appellant’s claim of
self-defense and secure a conviction, the government needed to disprove at least
one of the four aforementioned conditions beyond a reasonable doubt.7
6 See Swann v. United States, 648 A.2d 928, 930 n.7 (D.C. 1994) (noting that even when the other conditions of a self-defense claim are satisfied, “a defendant cannot claim self-defense if the defendant was the aggressor, or if s/he provoked the conflict upon himself/herself”) (internal quotation marks omitted); see also Andrews, 125 A.3d at 321 (“A legitimate claim of self-defense is not available to a defendant who voluntarily – knowingly and unnecessarily – placed himself in a position where he had reason to believe his presence would provoke the violence from which he then found it necessary to use deadly force to save himself.”); Rorie v. United States, 882 A.2d 763, 772 (D.C. 2005) (“[T]he fact that a defendant may have been an aggressor or a provocateur at an earlier point in time[] does not by itself rule out a defense of self-defense . . . . where there is evidence of a disengagement due to the passage of time” sufficient to restore the combatants to “the status quo ante.”) (internal quotation marks and citation omitted); see also Criminal Jury Instructions, supra note 5, No. 9.504. 7 Mitigating circumstances sufficient to reduce the homicide from murder to voluntary manslaughter exist when a defendant acted in so-called “imperfect” self- defense – typically when the defendant honestly believed she needed to use lethal force to protect herself, but the belief was not objectively reasonable or the defendant was responsible for starting or triggering the violence. See Swann, 648 A.2d at 930-33; see also Richardson, 98 A.3d at 187 n.11. The jury in this case was instructed on this point and its option to find appellant guilty of voluntary manslaughter as a lesser-included offense of second-degree murder. 6
On appeal, this court “must deem the proof of guilt sufficient if, ‘after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the charged offense beyond
a reasonable doubt.’”8 Sufficiency-of-the-evidence review therefore is “deferential
. . . to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.”9 “The evidence need not ‘compel a finding of guilt’ or
negate ‘every possible inference of innocence.’”10 But we “take seriously the
requirement that the evidence in a criminal prosecution must be strong enough that
a jury behaving rationally really could find it persuasive beyond a reasonable
doubt.”11 Although “[a] jury is entitled to draw a vast range of reasonable
8 Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original)). 9 Id. (quoting Jackson, 443 U.S. at 319); see also, e.g., Medley v. United States, 104 A.3d 115, 127 n.16 (D.C. 2014) (“When analyzing the sufficiency of the evidence, we view the evidence ‘in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.’”) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C. 1987)). 10 Rollerson v. United States, 127 A.3d 1220, 1232 (D.C. 2015) (quoting Timberlake v. United States, 758 A.2d 978, 980 (D.C. 2000)). 7
inferences from evidence, [it] may not base a verdict on mere speculation. The
evidence is insufficient if, in order to convict, the jury is required to cross the
bounds of permissible inference and enter the forbidden territory of conjecture and
speculation.”12
Our obligation to view the evidence in the light most favorable to the
prosecution almost always “commands that we assume that the jury in its
assessment of credibility did not believe [the defendant’s] exculpatory testimony,
and we must defer to the jury’s prerogative in this area.”13 That does not mean we
will sustain a verdict relying on an inference from mere disbelief of a witness that
the opposite of the discredited testimony is the truth. Often it may be illogical and
hence impermissible to draw such an inference. “When the testimony of a witness
is not believed, the trier of fact may simply disregard it. Normally the discredited
(continued…) 11 Rivas, 783 A.2d at 134. 12 Id. (punctuation and internal citations omitted) (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990), and Curry, 520 A.2d at 263). 13 Cosby v. Jones, 682 F.2d 1373, 1382 (11th Cir. 1982 ). 8
testimony is not considered a sufficient basis for drawing a contrary conclusion.”14
Hence it is generally agreed that “a jury may not use the disbelief of a witness’s
testimony as exclusive proof of a fact of an opposite nature or tendency.” 15 In a
criminal appeal, therefore, we will not fill a gap in the evidence and deem it
sufficient by positing that the fact finder could have drawn an uncorroborated
“negative inference” from testimony of the defendant that, though not credited,
was neither contradicted, nor inherently inconsistent or implausible, nor otherwise
demonstrably undermined in the record before us.16
We acknowledge, however, that “disbelief of a defendant’s testimony can, in
limited circumstances, give rise to a positive inference of guilt”17 sufficient, either
by itself or, especially, in conjunction with other, affirmative evidence in the 14 Evans-Reid v. District of Columbia, 930 A.2d 930, 940 (D.C. 2007) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984)). 15 Id. (emphasis added). 16 See Hector v. United States, 883 A.2d 129, 134 (D.C. 2005) (“We reject the notion that a fact finder can permissibly draw a negative inference from such testimony, even if discredited, sufficient by itself to sustain a conviction.”); accord Price v. United States, 985 A.2d 434, 439 (D.C. 2009) (“[W]e will not sustain a conviction that necessarily relies on negative inferences drawn from testimony that is neither implausible, nor inconsistent, even if it is discredited.”). 17 Hector, 883 A.2d at 134 (citing Stallings v. Tansy, 28 F.3d 1018, 1023 (10th Cir. 1994) (surveying federal appellate decisions)). 9
record, to support a conviction. For example, if the jury reasonably concludes that
the defendant is not merely unreliable, but is lying about material facts, it
permissibly may infer that the truth is contrary to the defendant’s testimony and
incriminating, for a false exculpatory statement (or other evasion) permits the
finder of fact to “infer consciousness of guilt, and therefore guilt itself.” 18 The
incriminating falsity of a defendant’s exculpatory testimony may be demonstrated
to the jury in various ways that will be visible to an appellate court from the record
of the trial.19 The testimony may be so internally inconsistent or implausible on its
18 In re G.H., 797 A.2d 679, 684 (D.C. 2002); see also Mills v. United States, 599 A.2d 775, 783-84 (D.C. 1991) (“[I]t has always been understood – the inference, indeed, is one of the simplest in human experience – that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence . . . , and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.”) (quoting II J. WIGMORE, EVIDENCE § 278, at 133 (Chadbourn ed. 1979)); Irick v. United States, 565 A.2d 26, 30 n.8 (D.C. 1989) (“False exculpatory statements made to law enforcement officers constitute independent circumstantial evidence of guilty consciousness.”) (internal citations omitted). 19 Cf. Evans-Reid, 930 A.2d at 940-41 (“[A]lthough a witness’s demeanor alone may rationally justify a finding opposite to the witness’s testimony in court, the theory would not be countenanced on the policy ground that there could be no effective appellate review of a trial judge’s decision to permit an issue to go to the jury on the basis of witness demeanor alone.”) (citing Dyer v. MacDougall, 201 F.2d 265, 269 (2nd Cir. 1952)). 10
face that it virtually compels the inference that the defendant is fabricating and
hence guilty.20 Even when the defendant’s story on the witness stand is not self-
contradictory or patently incredible, prior inconsistent statements by the defendant
or other conflicting evidence at trial may be enough to support the jury’s “negative
inference” of guilt from its disbelief of the defendant. Evidence of motive or bias
may serve in a similar capacity by enabling the jury to find that the defendant’s
testimonial explanation is pretextual: “[b]ias, in the sense of animus against the
[victim], can be used to infer motivation to commit the ultimate injurious act that
gives rise to liability sufficient to carry the [government’s] burden.”21 Where a
jury has rational grounds to reject a defendant’s exculpatory claim as false, it may
infer that the truth is inculpating.22
20 See United States v. Eley, 723 F.2d 1522, 1525 (11th Cir. 1984) (“[W]holly incredible explanations may also form a sufficient basis to allow the jury to find that the defendant had the requisite guilty knowledge.”). 21 Evans-Reid, 930 A.2d at 942. Evans-Reid was a civil case, but the principle applies in criminal cases as well, subject to the heightened beyond-a- reasonable-doubt proof requirement in those cases. 22 See id. 11
II. The Evidence at Trial
At around 2:00 a.m. on August 13, 2011, appellant returned to her apartment
with her boyfriend, Vance Harris. The couple had a stormy relationship and they
had been quarreling earlier that evening and on their way home. About half an
hour after they arrived there, appellant, half-naked and holding a large kitchen
knife, fled the apartment. She ran down the stairs and out of the building to a
security booth, where she told the guard – and later the police – that Harris had
assaulted her and she had stabbed him in self-defense. Taken into custody,
appellant repeated this claim to homicide detectives in a recorded interview, during
which she learned that Harris’s stab wounds were fatal.
The issue in dispute at appellant’s trial was not whether she stabbed and
killed Harris, but why. Appellant continued to assert that she acted in self-defense,
testifying that she loved Harris and did not want to stab him, but did so because he
had attacked her and she was scared. To disprove this, the prosecution impeached
and contradicted appellant’s account of the incident and sought to show she
stabbed Harris out of the “rage, jealousy, and anger” that his disrespect,
indifference, and rejection had aroused in her. 12
Background Evidence: Appellant’s Relationship History with Harris, and
the Days and Hours Preceding the Stabbing
The prosecution undertook to establish appellant’s motive for stabbing
Harris with evidence of her long-standing grievances against him and her
temperament and behavior in the hours immediately preceding the homicide. In
the process, the jury learned a great deal about a tempestuous and often
acrimonious (though non-violent23) relationship marked by Harris’s chronic
infidelity, neglect of appellant, and indifference to her devotion to him and desire
for him to change. Appellant, who was in love with Harris and had tattooed his
name on her body, was frequently rebuffed and humiliated, but she repeatedly
forgave or tolerated Harris’s unfaithfulness and sought his forgiveness for her
angry outbursts. Their relationship did not improve, however.
About three weeks before the homicide, appellant, upset that Harris spent his
money to take a trip without her to Miami instead of contributing to the rent, called
him while he was there to say she was putting his belongings out on the curb. She
23 Neither appellant nor the prosecution characterized Harris as having mistreated her physically. On the contrary, appellant acknowledged in her testimony at trial that Harris had not been physically abusive. 13
texted him that “life will only get even more miserable if you’re even thinking
about fucking with me.” When Harris returned from Miami, she gave him an
ultimatum to move out of her apartment in two weeks (though he did not do so,
and it appears she relented). On August 1, 2011, twelve days before the stabbing,
appellant sent another text to Harris, in which she said, “I’m gonna fuck you up if
you don’t stop playing with me. . . . You keep fucking playing with me. . . . Don’t
manage to get anyone killed today along with yourself.” Yet in other
communications, appellant wrote of missing Harris and apologized to him for
“acting in [] poor behavior.” On July 22, 2011, appellant described her feelings to
Harris as follows: “[S]ometimes I feel like when I’m not with you I lose you and
I’m very selfish when it comes to my love . . . for you. Please accept my apology
and love me like never before. I want to see a doc or DR, so I can’t [sic] learn how
not to be so jealous and selfish when I can’t have my way.”
On the night of August 12, 2011, appellant and Harris were guests at a
wedding reception. Several witnesses who observed them there testified at trial to
appellant’s unhappiness and annoyance with Harris, who was a groomsman and in
a jovial mood. While he had a good time and danced with other women, appellant
followed him around “almost like a shadow” and tried in vain to get his attention.
Harris avoided and laughed at her. Later in the evening, appellant yelled at Harris, 14
called him names, and “mushed” and smacked his face in front of other wedding
guests. But Harris did not respond aggressively and was still in good spirits when
he finally bid his friends good night and headed home with appellant.
They argued while on their way. In Capitol Heights, Maryland, two police
officers came upon them and found appellant sitting on the sidewalk outside
Harris’s truck. One of the officers testified at trial that appellant was “loud,
excitable and appeared to be agitated,” while Harris was “cool, calm and
collected.” The other officer, who spoke with appellant after she and Harris were
separated, reported that appellant became upset and started crying when asked
what had happened. Concluding that appellant and Harris were only having a
verbal argument, the officers persuaded them to get back in the truck and go home.
Surveillance footage admitted at trial showed them arriving there at around 2:00
a.m. Appellant walked on ahead of Harris without waiting for him or holding the
door for him. In her testimony at trial, appellant said she acted this way because
she was still upset with Harris.
Appellant’s Pretrial Statements Explaining the Stabbing
The first person appellant encountered after the stabbing was her building’s
security guard. The guard testified that she came into his booth and told him to 15
call an ambulance or the police. According to the guard, appellant said her six-foot
eight-inch tall boyfriend “was beating on her” and she stabbed him. She also told
the guard she was not hurt.
The guard called the police. One of the officers who responded testified
from notes he made at the scene that appellant told him she went to bed when they
got home before Harris “came in the room and started . . . hitting me in the face
and neck.” According to the officer’s contemporaneous notes, appellant said
Harris “grabbed me by my feet and dragged me out of the bed. I was trying to run
away but he followed, hitting me again in the kitchen. I grabbed the kitchen knife
and stabbed him in the lower stomach so I could get away.” The officer also
testified that appellant had no injuries and complained of no injuries (she “refuse[d
EMS] treatment on the scene”), and that he noticed her sleeping cap “was neatly on
her head.” Another officer who took notes at the scene testified that appellant said
her boyfriend “was pushing me and choked me with his hands around my neck.
He’s 6, 8 [sic] and too big for me to push him off. I had to stab him.” This officer,
too, testified that appellant was unhurt.
The two homicide detectives who next interviewed appellant also testified at
trial, and the video recording of the interview was admitted in evidence. Both 16
detectives testified that appellant had no injuries (and none are visible in the video
recording).
Appellant told the detectives that Harris got on top of her in the bed and
repeatedly smacked her in the face. She said he then dragged her off the bed by
her legs, at which point she stood up, grabbed a shoe, struck Harris with it, dropped
the shoe, and ran into the kitchen. There, appellant explained, she picked up a
knife and told Harris (who had followed her) to stop hitting her before he “leaped”
at her, at which point she stabbed him. Appellant went on to say that she was not
fighting Harris off when she stabbed him, but was reacting to his “leap” toward
her. At the end of the interview, she said she only grabbed the knife when Harris
entered the kitchen and “looked like he was going to hit me again” because “he
went to lean in toward[] me.” Appellant stated, “I don’t remember if he was trying
to swing at me or what.”
Appellant also told the homicide detectives about her argument with Harris
in Capitol Heights on the way home from the wedding reception. She said that
after she grabbed Harris’s phone and jumped out of his truck, he pushed her to the
ground and pulled her hair, and that her dress was “all pulled apart and stuff.” She 17
said she was dragged by the vehicle as Harris pulled off when she opened the door
to get back inside.
Appellant’s Testimony at Trial
Appellant took the witness stand in her own defense at trial. In her brief
direct examination, she said she stabbed Harris because she was “scared” and did
not elaborate on how it happened. On cross-examination, the prosecutor pressed
her to divulge what occurred in greater detail.
In response, appellant provided the following account: Upon returning to
her apartment, she went into a separate bedroom because she was upset with
Harris. She remained there by herself, lying in bed, for approximately ten minutes.
During this period, she testified, she was calm and not upset. Then she got up and
went into the bedroom where, she said, Harris was watching television. After
taking off her clothes and lying down next to him, appellant started “tapping”
Harris and trying to engage him in conversation. He told her to stop. Appellant
said she stopped tapping but continued talking. Harris, whose back was turned to
appellant, “swung his arm over back toward” her. Appellant understood that he
wanted her to leave him alone, but she persisted in talking to him. Harris then
suddenly climbed on top of her (“He put his full body on top of me,” she testified), 18
pinned her hands up, and began “[s]macking [her] in [her] face . . . with force,”
leaving her face “swollen and red.” He smacked her in the face approximately six
times before he stood up and dragged her off the bed. At that point, though Harris
was no longer hitting her or “touching [her] at all,” appellant picked up a “heeled
boot” and struck Harris with it. She said it was not her boot and she did not know
how it happened to be in the room or where on Harris’s body she hit him with it.
Appellant testified that she then ran into the kitchen. She claimed that
despite her fear, she did not run out of the apartment because she “thought [Harris]
would stay in the [bed]room and leave [her] alone,” but he followed her to the
kitchen. Although the front door to the apartment was only a few steps ahead of
her, she still did not leave the apartment. Instead, she grabbed a knife. She then
turned to face Harris and “asked him to stop hitting [her].”24
Appellant testified that Harris was “still coming and swinging” at her “all at
once” when she stabbed him. Then, however, after the prosecutor confronted her
with her contrary statements to the homicide detectives – she told them she thought
24 On redirect examination, appellant denied intending to stab Harris when she picked up the knife and said the reason she did so was simply to “[s]top him from beating me.” 19
Harris was going to hit her “because he went to lean in toward[] me” but did not
“remember if he was trying to swing at me or what” – appellant ultimately agreed
that Harris “wasn’t doing anything” to her in the kitchen “but leaning in.” She also
said she “wasn’t sure what he was going to do” there. Appellant conceded that
Harris never struck her after she hit him with the boot in the bedroom. Nor did
appellant claim he said anything threatening to her before she stabbed him.
Appellant denied ambushing Harris as he entered the kitchen, but she
conceded that Harris was “way stronger” than she was and “could have easily
disarmed [her] if [she] held a knife at him.” Yet when the prosecutor suggested
“the reason why he was unable to disarm [her] . . . was because [she] stabbed him
without any notice,” appellant denied it without providing any alternative
explanation for how she was able to stab him. Appellant said Harris was not afraid
when she threatened him with the knife. She also testified that Harris did not
realize at first that he had been stabbed, and that it was only after she stabbed him a
second time that he reacted by grabbing a knife himself. Appellant agreed that she
stabbed Harris the second time even though he did not swing at her after she
stabbed him the first time. 20
Appellant ran out of the apartment after Harris armed himself with a knife.
She testified that she fled because she feared death or serious bodily injury. She
professed to have had that same fear before Harris grabbed a knife, but she had not
tried to leave the apartment before then.
The prosecutor also cross-examined appellant extensively about her
grievances with Harris and about the events in the hours before the stabbing,
tripping appellant up and causing her to contradict herself. For instance, appellant
repeatedly denied or minimized her conflicts with Harris and her dissatisfaction
with their relationship. Despite being confronted with her text messages strongly
suggesting otherwise, appellant – who agreed on the witness stand that she wanted
Harris all to herself – claimed she did not mind his having sex with other women.
She explained her text about wanting to see a doctor to help her address her “poor
behavior” resulting from jealousy and not getting her way as just a lie she told
Harris to mollify him. Appellant denied being upset with Harris when he went to
Miami.
Appellant similarly denied being fed up with Harris and his treatment of her
on the night they attended the wedding reception. Contradicting other witnesses,
appellant denied calling Harris names, smacking him, and “mushing” his face at 21
the reception. She insisted that she was “having fun” there and had danced a lot
with Harris. She retracted much of what she had told the homicide detectives
about her fight with Harris after the reception on the trip home.25
Physical and Other Evidence Relating to the Homicide
Surveillance footage of appellant’s flight from her apartment showed her
throwing a knife into a trash can before she ran to the security booth. The knife,
which had an eight-and-one-half-inch blade, was admitted as an exhibit at trial.
The medical examiner testified that Harris’s death resulted from “rapid blood loss”
caused by the stabbings. One of the stabbings punctured the right side of Harris’s
abdomen, traveled five to seven inches through his skin, subcutaneous tissue,
muscle, and large intestine, and penetrated one-and-one-half inches into his liver.
25 Appellant conceded she was not afraid of Harris in Capitol Heights. She explained that what she had described to the detectives as being “pushed [] to the ground” by Harris was actually just his perhaps unintentional “bump[ing] into [her].” While she told the detectives that Harris pulled her hair, she explained at trial that he was merely trying to “untangle his phone” to recover it from her after she snatched it when she exited the truck. Appellant also testified that she was not dragged by Harris’s truck, but merely slipped off the curb and fell on her bottom when the vehicle started moving as she tried to get into it. Finally, she testified that the dress she wore that night was not “all pulled apart and stuff,” as she told the detectives; rather, she said, some of the hems merely were out. (The dress was introduced in evidence. The crime scene technician testified that it was undamaged.) 22
The track of the other stab wound went through Harris’s right forearm and into his
right bicep above the elbow, cutting through his skin, subcutaneous tissue, and
muscle, and severing his brachial artery. Harris also had two abraded contusions
on his right arm, a cut on the back of his left finger that was consistent with a
defensive wound, and a laceration above his left eye. In the medical examiner’s
opinion, the laceration most likely was the result of being struck in the forehead
with a blunt object.
Although appellant testified that Harris forcefully and repeatedly smacked
her in the face, leaving it “swollen and red,” the government presented evidence
that she had no injuries. As previously mentioned, neither the security guard nor
the police observed any injuries. After she was arrested, appellant complained of a
bruise on her arm and lower back pain, but a crime scene technician who
photographed her observed no bruising. Appellant nonetheless was taken to
Howard University Hospital, where she continued to complain of back pain, but
the attending physician who examined her testified that he observed no tenderness
or injuries.
Other relevant physical evidence included the medical examiner’s testimony
that she measured Harris’s blood alcohol content at 0.08 grams per hundred 23
milliliters and the crime scene technician’s testimony in the government’s rebuttal
case that the television was off when the police entered the apartment. These facts,
the government argued, lent additional support to the prosecution’s theory that
Harris was not watching television when appellant entered the bedroom to talk to
him (as she claimed, apparently for the first time, during her cross-examination)
but rather was asleep when she attacked him with the boot.26
Appellant’s Motion for Judgment of Acquittal
Appellant’s trial encompassed six days of testimony. After the
government’s rebuttal case, the court took appellant’s renewed motion for
judgment of acquittal under advisement. The jury deliberated for four days before
finding appellant guilty of murder in the second degree while armed. The trial
court then denied appellant’s motion, explaining that “the reality of this case is this
was a credibility determination made by the jury in determining whether the
26 A tussle in the bed could have ensued; the crime scene technician observed that the mattress “had been moved over” and was not directly on top of the bed’s box spring. Appellant contended that this observation corroborated her testimony that Harris dragged her out of the bed. On the other hand, the government suggested, the observation that appellant’s sleeping cap sat neatly on her head when she was at the security booth in the immediate aftermath of the stabbing cast doubt on her claim that Harris manhandled her. 24
Defendant’s explanation about the events . . . would be credited by the jury, and
[it] was not. And the Court cannot find that that determination, at this point, was
unreasonable.”
III. Analysis
For several reasons, we conclude that the evidence at trial was sufficient to
disprove appellant’s claim that she stabbed Harris in self-defense, even though
appellant provided the sole eyewitness account of the stabbing and said she acted
in self-defense.
As a starting point, the evidence permitted the jury to reject appellant’s self-
defense claim even if it fully credited her account. That is, even if the jury
believed (1) Harris was the initial aggressor, (2) he pinned her down on the bed,
smacked her six times, dragged her to the floor, and came at her swinging in the
kitchen, and (3) appellant stabbed him to protect herself because she was afraid for
her life, the jury nonetheless could find beyond a reasonable doubt that she did not
have an objectively reasonable fear of imminent death or serious physical injury
and that her use of lethal force was excessive. Those conclusions were supported
by the evidence that Harris had not been physically abusive to appellant in their
relationship, had never seriously injured her in the past, and did not seriously injure 25
her or verbally threaten to do so before she stabbed him; that he was unarmed; and
that, by appellant’s own description, Harris merely leaned toward her in the
kitchen and she was not fighting him off when she stabbed him. 27 Furthermore,
even if the jury thought appellant’s professed fear of Harris reasonable, it still had
sufficient evidentiary grounds to find that her decision to use deadly force was
unreasonable. After she stabbed Harris, appellant did what the jury could have
concluded was available to her before she stabbed him – she fled the apartment.
Given that option, the jury fairly could find it was objectively unreasonable for
appellant to believe it necessary to stab Harris in order to protect herself.28
27 See, e.g., Dorsey v. United States, 935 A.2d 288, 291-92 (D.C. 2007) (when opponent was unarmed and had uttered no threats, as a matter of law the “situation . . . was not dire enough to justify” lethal force); Edwards v. United States, 721 A.2d 938, 941-42 (D.C. 1998) (gunshots at a visibly unarmed opponent constituted excessive force such that jury could not reasonably have found a threat of imminent death or serious bodily harm); Fersner v. United States, 482 A.2d 387, 393 (D.C. 1984) (appellant’s response of a hatchet blow to a threatened unarmed beating was excessive force as a matter of law). 28 In cases involving the use of deadly force in self-defense, this jurisdiction has adopted a rule that “permits the jury to consider whether a defendant, if he safely could have avoided further encounter by stepping back or walking away, was actually or apparently in imminent danger of bodily harm. In short, this rule permits the jury to determine if the defendant acted too hastily, was too quick to pull the trigger.” Gillis v. United States, 400 A.2d 311, 313 (D.C. 1979) (holding that the law of the District of Columbia “does not impose a duty to retreat but does allow a failure to retreat, together with all the other circumstances, to be considered by the jury in determining if there was a case of true self-defense”). We specifically have held that this rule applies where, as in the present case, the (continued…) 26
The foregoing evidence, being sufficient to prove it was not objectively
reasonable for appellant to believe she was in imminent peril of death or serious
bodily harm and that she needed to use lethal force to save herself, ipso facto also
constituted some evidence that she did not actually believe either of those things.
Indeed, although appellant testified that she told Harris to “stop hitting” her and
that she stabbed him because she was “scared,” she never explicitly told the jury
that she stabbed Harris because she honestly thought at that time that he was about
to kill her or seriously injure her. This omission, combined with appellant’s
testimony that she “wasn’t sure what he was going to do,” was further evidence
that, even accepting the facts as she described them, she did not truly believe
herself in immediate danger of death or serious bodily harm.29
(continued…) defendant claims to have been attacked in his or her home by a co-occupant. See Cooper v. United States, 512 A.2d 1002, 1006 (D.C. 1986). 29 Their relationship history and behavior at the wedding reception and on the way home also supported a conclusion by the jury that appellant did not believe Harris would kill or seriously injure her. The jury could find that, knowing Harris as well as she did, appellant would have known he was not an aggressive or violent man. In the face of her threatening text messages, he never responded in kind. When she would get angry, he remained calm. According to multiple witnesses, this was true even on the night of the homicide. She was unafraid to slap him in front of other people at the wedding reception; and when she did so, he just walked away, and he left the reception in good spirits. The Capitol Heights officers who observed the couple shortly afterward, in the midst of their argument, found Harris to be “cool, calm and collected,” in stark contrast to appellant, who was “loud” and “agitated.” 27
Moreover, the additional evidence presented at trial permitted the jury to
disbelieve appellant’s account and instead find beyond a reasonable doubt that she
herself was the first aggressor (when she struck Harris with a boot hard enough to
split open his forehead) and that she then caught Harris by surprise when he
followed her to the kitchen and stabbed him not in self-defense but out of pent-up
rage over his disdainful treatment of her. The evidence supporting this conclusion
falls into three categories: motive evidence, direct evidence that appellant did not
kill Harris in self-defense, and false exculpatory statements by appellant evincing
consciousness of guilt.
Motive evidence does a lot of work in this case because “a self-defense
claim raises the issue of whether the defendant was acting out of an actual and
reasonable fear of imminent bodily harm, or whether, instead, the defendant had
some other motive and was, in fact, the aggressor.”30 In domestic violence
homicide cases, “[e]vidence concerning appellant’s prior relationship with the
decedent and the state of that relationship prior to and at the time of the murder is
therefore indicative of the motive appellant may have possessed for committing the
30 Garibay v. United States, 634 A.2d 946, 948 (D.C. 1993) (emphasizing the significance of motive evidence, specifically relating to prior relationship history, in cases involving domestic violence). 28
act.”31 In this case, the government presented abundant evidence of an
acrimonious relationship in which appellant had serious unresolved grievances
against Harris that came to a boil in the hours just before their final conflict. At the
wedding reception, Harris disrespected appellant – she wanted his attention, but he
walked away from her, laughed at her, ignored her, and danced with others instead
of her, all of which made her angry enough to slap him in front of his friends.
They argued further on the way home, and she was upset and angry when they got
there. By appellant’s own account, Harris then ignored her at home when she
wanted to talk. This, the jury could find, was the final straw. Just twelve days
earlier, appellant had threatened Harris (“I’m gonna fuck you up if you don’t stop
playing with me”), and the testimony about their behavior at the wedding
confirmed her volatile emotional state on the evening in question. The jury
reasonably could conclude that appellant’s overpowering rage at Harris was more
indicative of her motive for stabbing him than fear for her physical safety –
particularly in view of the evidence, to which we now turn, that contradicted and
undermined appellant’s claims that Harris attacked her in the bedroom and
threatened her in the kitchen.
31 Clark v. United States, 412 A.2d 21, 28 (D.C. 1980). 29
As for his conduct in the bedroom, while appellant testified that he smacked
her face, leaving it “swollen and red,” and then dragged her off the bed, multiple
witnesses testified that she had no injuries. This evidence, seemingly incompatible
with appellant’s account, permitted the jury to disbelieve her and conclude that
Harris did not assault her. That conclusion was reinforced by the crime scene
technician’s testimony that the television in the bedroom was off when the police
arrived, which contradicted appellant’s story that Harris was awake and watching
television when she came in to the bedroom. The foregoing evidence, along with
the decedent’s elevated blood alcohol level, the lateness of the hour, and
appellant’s testimony that she stayed outside the bedroom for some time before
going in and confronting Harris, supported the prosecution’s theory that Harris did
not assault her and was asleep (or barely roused and still unresponsive) when, out
of frustration, she attacked him with the boot.
The jury also could find other discrepancies in appellant’s account to be
supportive of the government’s theory. At six feet, eight inches tall, Harris
towered over appellant and was, by her own admission, capable of easily
disarming her. Yet, she claimed, after he threw her to the floor, she was able to 30
grab a boot that just happened to be at hand,32 stand up, and, without meeting any
resistance from Harris, strike him forcefully enough with it to split open the very
tall man’s forehead. The jury reasonably could deem this story implausible and
find it more likely that appellant was the first aggressor – that she probably brought
the boot into the bedroom with the intention of using it as a weapon and, in any
event, that she most likely struck Harris with it while he was lying in bed in a
vulnerable state.
The jury reasonably could disbelieve appellant’s account of the stabbing as
well and conclude that she was not defending herself from Harris. Critical to her
self-defense claim was her testimony that she brandished her knife at Harris and
warned him to leave her alone before she felt she had to stab him in self-defense.
But as appellant conceded, Harris was “way stronger” than she was, and he
“easily” could have disarmed her if she held a knife on him. The jury reasonably
could have found it unbelievable that appellant managed to inflict two very deep
stab wounds, one in Harris’s stomach and the other in his arm, if he was
forewarned of the danger in the manner she described. Instead, the jury could have
32 When she was questioned about it on the witness stand, appellant professed not to know where the boot’s mate was located at the time, and the prosecutor suggested it was unlikely this style of boot was just “lying around” on the bedroom floor in the middle of the summer. 31
inferred that appellant was able to drive her knife several inches into Harris’s
abdomen only because she took him by surprise – a conclusion further supported
by appellant’s statement that Harris did not realize he was stabbed the first time.
The jury similarly could have inferred that the stab wound driving completely
through Harris’s right forearm and continuing into his upper arm was a defensive
wound, sustained while he was holding his arm up to protect himself and trying to
block the knife with his left hand (which also appeared to have received a
defensive wound).
Finally, the jury could find that appellant made numerous false and
exaggerated exculpatory statements implying consciousness of guilt. For example,
immediately after the stabbing, appellant told police that Harris came into her room
and started hitting her in the face and neck; that he put his hands around her neck
and choked her; and that he hit her again in the kitchen before she stabbed him to
escape. She initially told the homicide detectives that Harris “leaped” at her in the
kitchen. These statements all were contrary to appellant’s trial testimony, in which
she said nothing at all about being choked and ultimately conceded that “at the 32
kitchen [Harris] wasn’t doing anything to [her] but leaning in.”33 The jury could
find that these and other pretrial statements by appellant were knowingly and
intentionally false and hence indicative of consciousness of guilt.
The jury could reach the same conclusion with respect to much of
appellant’s trial testimony. Her attempt to minimize her grievances over Harris’s
behavior in their relationship was difficult to credit. Witnesses contradicted her
testimony that she was not in conflict with Harris at the wedding reception. The
crime scene technician undercut her testimony that Harris was awake and watching
television (rather than asleep) when she went into the bedroom to talk to him.
Appellant’s claim that Harris attacked her after she got into bed with him and
smacked her face until it was swollen and red was belied by the testimony of
multiple witnesses that she was not injured at all. If this claim was a fabrication,
so, too, must have been the scenario, improbable on its face, that she answered the
attack by seizing a handy boot and hitting Harris with it as he stood over her.
Lastly, appellant’s testimony that she displayed the knife and warned Harris not to
hit her again before she stabbed him in self-defense was undermined by her
33 Similarly, under cross-examination at trial, appellant retracted her earlier claims of physical mistreatment by Harris on the way home from the wedding reception. 33
admissions that Harris was not actually attacking her when she stabbed him, that
he easily could have disarmed her and protected himself, that he was not afraid of
her, and that at first he did not even realize she stabbed him. The jury could find it
far more plausible that she gave Harris no warning at all and took him by surprise
when he was not threatening her (and when she could, instead, have avoided the
confrontation altogether by leaving the apartment if she truly felt her life was in
danger).
There is a big difference between believing the content of a witness’s
testimony to be untrue and believing the witness to be lying to exonerate herself.
When the latter determination is reasonable, it permits a powerful consciousness-
of-guilt inference. This inference, considered along with the crime-scene evidence
and the evidence of appellant’s motive arising from her unsatisfactory relationship
with Harris, provided sufficient evidence for a jury to disbelieve beyond a
reasonable doubt that appellant acted in self-defense.
IV. Conclusion
Viewing the evidence in the light most favorable to sustaining the jury’s
verdict, we hold it sufficient to permit a rational trier of fact to find each of the
elements of murder in the second degree while armed beyond a reasonable doubt. 34
For the reasons we have adduced, we specifically hold that the evidence in its
totality sufficed to disprove appellant’s claim that she stabbed Harris in self-
defense. We affirm her conviction.
So Ordered.