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Bassil v. United States

Court of Appeals of Columbia District

October 6, 2016

Dominique Bassil, Appellant,
United States, Appellee.

          Argued: September 29, 2015

         Appeal from the Superior Court of the District of Columbia (CF1-15572-11) Hon. Robert E. Morin, Trial Judge

          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.


         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.


          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 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 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 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]

         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 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 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 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 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]

         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.

         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-violent[23]) 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 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, 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 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 detectives testified that appellant had ...

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