Appeal from the Superior Court of the District of Columbia. (M 10974-01). (Hon. Zinora Mitchell-Rankin, Trial Judge).
Before Glickman and Washington, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Senior Judge NEWMAN at p. 3.
Appellant Larry Douglas was convicted in a bench trial of simple assault and attempted possession of a prohibited weapon. He argues that the trial judge erred in ruling that he did not produce sufficient evidence to furnish the factual predicate for a legally valid claim of self-defense. However, the evidence to which Douglas points was simply his own testimonial account of his confrontation with the complainant, which the judge, in her role as fact- finder, found unworthy of belief. Any error by the judge in appreciating the legal sufficiency of Douglas's testimony was, therefore, harmless, and we hold that Douglas is not entitled to relief.
The altercation that led to the prosecution in this case occurred after Douglas argued with the driver of a bus on which he was riding. According to the bus driver, Douglas walked up to him on the street after they disembarked from the bus, pulled out a knife, and pointed it at him in a threatening manner. According to Douglas, however, the bus driver was the aggressor. Douglas testified that the bus driver saw him walk by, threatened to "kick [his] ass," and then came running toward him. At that point, Douglas claimed, he merely pulled out a closed knife, held it by his side and, from a distance of ten feet, said "You don't want to do that" to the onrushing driver.
Arguably, the trial judge did err in ruling as a matter of law that Douglas could not claim to have acted in legitimate self-defense even by his own account. The judge reasoned that Douglas admitted that he employed excessive force when he testified that he wielded a deadly weapon to deter an unarmed attacker. The mere display of a deadly weapon to ward off an attack is not necessarily to be equated to the actual use of deadly force for purposes of evaluating whether the force used was excessive. See McPhaul v. United States, 452 A.2d 371, 373 (D.C. 1982) (discussing the different standards for the use of deadly and non-deadly force in self-defense); see also LAFAVE,
2 SUBSTANTIVE CRIMINAL LAW 144-45 (2d ed. 2003) (noting that a threat to use a weapon in self-defense may be justified where actual use of the weapon would not be).
The point is entirely academic, however, because the judge did not believe Douglas's account to be true. The judge told defense counsel in no uncertain terms that "the story that your client outlines for me is not credible to me. I don't believe it." Had the judge "instructed herself" correctly on the law of self-defense, as Douglas argues she should have done, her determination as fact-finder that Douglas's account was not credible would have led her to the same conclusion -- that Douglas did not act in self-defense. Douglas therefore suffered no prejudice from the judge's putative legal error in evaluating the legal significance of his testimony. While the judge's factual findings are not as clear as we might wish, it is plain enough that she credited the testimony of the complainant that Douglas was the aggressor. The evidence that the judge believed was sufficient to sustain his convictions, and Douglas does not contend otherwise. See, e.g., Mihas v. United States, 618 A.2d 197, 200-01 (D.C. 1992).
The judgment of the trial court is affirmed.
NEWMAN, Senior Judge, concurring in result
Unlike my two colleagues, I deem it appropriate to determine and say whether or not the trial judge erred in ruling, as a matter of law, that the defendant was not entitled to invoke the defense of self-defense. This being the issue, the trial court was required to view the evidence in its light most favorable to the defendant. Adams v. United States, 558 A.2d 348, 349 (D.C. 1989). "When 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." Gray v. United ...