Appeals from the Superior Court of the District of Columbia (F-4810-02, F-4811-02) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Submitted February 8, 2006
Before SCHWELB, FARRELL, and KRAMER, Associate Judges.
A jury acquitted appellant Jones of malicious disfigurement but found him guilty of aggravated assault.*fn1 It convicted appellant Turner of felony threats and assault with a dangerous weapon. On appeal, Jones challenges the trial judge's refusal, in the final instructions, to state expressly that self-defense is a defense to a charge of aggravated assault, something the judge had done in relation to malicious disfigurement. Turner contests the sufficiency of the evidence on the threats charge, and contends that her indictment should have been dismissed because two government witnesses had allegedly perjured themselves before the grand jury. We reject both of Turner's arguments, but hold that the judge erred when he refused Jones's request to link his defense of self-defense explicitly to aggravated assault. And because we conclude that this left open a reasonable probability that the jury believed self-defense was applicable to malicious disfigurement - as to which the link had been made - but not aggravated assault, we must reverse Jones's conviction.
The charges against both defendants arose from an altercation of July 25, 2002, that began when Turner ordered Lateasa Hill, who was living temporarily at an apartment owned by Turner, to get out of bed and leave the apartment. Angry because Hill had been "bad-mouthing" her, Turner threatened to set fire to the bed and actually sought to ignite the bed-sheets with a lighter. She then swung a baseball bat at Hill and later, wielding two butcher knifes, threatened her again by exclaiming, "Don't make me have to use this." In the meantime Turner had summoned appellant Jones, the father of her two youngest children, to the scene. Jones promised to get Hill out of the apartment and, in an ensuing fight with her, successively grabbed her by the neck and arms, struck and pushed her, bit her on the forehead causing her to bleed profusely, bit her a second time, and kicked her repeatedly about the body. Hill suffered lasting injuries, requiring stitches and a recommendation of plastic surgery. Turner, for her part, continued her assaults and threats even as an ambulance arrived, declaring that "I'm ready to do more damage."
Jones took the stand and claimed self-defense, asserting that Hill had initiated the fray by striking him and menacing him with a knife. When he tried to disarm her, she clamped (or "locked") her teeth on his chest and stabbed him four or five times. He bit her on the forehead (causing her disfigurement) in an effort to stop her from biting him. The struggle continued as she slashed at him with another knife, until he was able to tackle her to the ground and end the fight. Photographs admitted into evidence showed cut wounds on Jones's back, shoulders, and right arm, and a bite wound on his chest.
We first reject summarily Turner's challenge to the sufficiency of the evidence that she threatened Hill. The evidence summarized above permitted the jury fairly to conclude that, at the least, Turner had threatened to burn Hill by setting her bed on fire if she did not leave the apartment. See generally Griffin v. United States, 861 A.2d 610, 615-16 (D.C. 2004); United States v. Baish, 460 A.2d 38, 42 (D.C. 1983).
We reject as well Turner's claim that the indictment should have been dismissed because it was based on perjured grand jury testimony by Hill and Isis Burnette, who also witnessed the altercation. Dismissal on that ground, as an exercise of the court's supervisory authority, is a narrow exception to the rule that "[a]n indictment returned by a legally constituted and unbiased grand jury that is valid on its face is enough to call for a trial on the merits." Hunter v. United States, 590 A.2d 1048, 1051 (D.C. 1991). Where "false material testimony [was] presented to the grand jury," dismissal is warranted "only where it is established that the false testimony substantially influenced the grand jury's decision to indict or where there exists a 'grave doubt' whether [that] decision . . . was free from the substantial influence of the false testimony." Id. at 1051-52.
Here, the trial judge was alert to the possibility that some grand jury testimony by Hill and Burnette might have been false, but ultimately he "[did] not . . . agree with . . . the defense attorneys as to the record showing that the witnesses falsely testified at the grand jury." Contrary to Turner's contention now that the judge should have reviewed the grand jury testimony before reaching that conclusion, he was not asked to do so by defense counsel. Moreover, as the government points out (Br. for Appellee at 38 & n.44), the judge knew from the proceedings that the indictment had been returned based on testimony by at least two other witnesses who also testified at trial. See Sanders v. United States, 550 A.2d 343, 345 (D.C. 1988) (false testimony supporting indictment not material because other incriminating evidence presented to grand jury also supported probable cause to indict). Most importantly, the circumstances of the two witnesses' inconsistent stories in the grand jury and at trial - as well as the details of the "letter immunity" each had received - were fully arrayed before the petit jury, under instructions directing it, inter alia, to scrutinize with care "the testimony of an admitted . . . perjurer" and to consider such inconsistencies in evaluating credibility. Turner has presented no reason why in these circumstances the extreme remedy of dismissal was nevertheless required as a matter of law.
We turn, then, to Jones's claim of instructional error, based upon the assertion that the judge's rejection of his request to have self-defense made expressly applicable to aggravated assault, as it had been to malicious disfigurement, may have resulted in a negative inference by the jury that the defense was not available for the former offense. The government responds essentially that the general self-defense instruction given by the judge suggested no limitation on its applicability, and that the arguments ...