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Parker v. United States

Court of Appeals of Columbia District

March 16, 2017


          Submitted November 12, 2015

         Appeal from the Superior Court of the District of Columbia (CMD-11272-14) Hon. Judith N. Macaluso, Trial Judge.

          Paul J. Riley was on the brief for appellant.

          Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Sarah Vanore, and Edward G. Burley, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: THOMPSON and EASTERLY, Associate Judges; and FERREN, Senior Judge.


         This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that appellant's conviction for simple assault is reversed.


          Catharine Easterly, Associate Judge

         Tameka Parker appeals her conviction, following a bench trial, for simple assault.[1] She argues that the evidence was insufficient to disprove her claim of self-defense. The trial court determined that Ms. Parker reasonably believed that she was in imminent danger of bodily harm when Frederick Powell and members of his family accosted her in front of her home and Mr. Powell threatened and then spit on her. Nonetheless, the trial court rejected Ms. Parker's claim that she was acting in self-defense when, in response to Mr. Powell spitting on her, she spit back on him. The trial court determined that Ms. Parker, although actually and reasonably afraid of Mr. Powell, had acted with a retaliatory motive that defeated her claim of self-defense.

         We question whether the record evidence supports the trial court's determination that Ms. Parker's motivation was purely retributive, but ultimately conclude that the trial court erred as a matter of law in conducting a separate inquiry into Ms. Parker's motive. Under the District's long-standing common law test for self-defense, captured in our standard jury instructions, whether the government has disproved a claim of self-defense turns on two questions: (1) whether a defendant reasonably believed that she was in imminent danger of bodily harm (an inquiry that may be informed, among other things, by motive evidence presented by the government); and (2) if so, whether the force used was excessive. Motive is not separately and additionally considered as a basis for disproving a claim of self-defense. In this case, the trial court found that Ms. Parker's belief she was in imminent danger was reasonable and there was never an argument that her act of spitting on Mr. Powell constituted excessive force. As there was no basis for the trial court to reject Ms. Parker's claim of self-defense, we reverse.

         I. Facts[2]

         Early one evening in June 2014, Ms. Parker walked out of her home where she lived with her three children. She was about to get into a friend's car, when she heard Mr. Powell[3] yell from across the street that he "should go over and smack the shit out of that bitch." When Ms. Parker asked to whom he was speaking, Mr. Powell crossed the street and came onto her property, positioned himself so that he and Ms. Parker were face-to-face, and said, "bitch, you." Mr. Powell's "aggressi[ve]" approach indicated to Ms. Parker that "he was trying to fight [her], " and Mr. Powell asked her "do you want that smoke, " a question Ms. Parker understood as a threat to shoot her.

         Mr. Powell's mother crossed the street with him, and several of his brothers joined them on Ms. Parker's property; the family surrounded her friend's car and yelled insults at Ms. Parker. They called her a "dirty bitch" and accused her of being "hot, " i.e., "working with the police." "[T]here were a lot of them, " and Ms. Parker "fear[ed] for [her] life."

         When he was less than two feet away from her, Mr. Powell spit in her face. Ms. Parker was "really was scared" once Mr. Powell spit on her, because she "didn't know what he was going to do next." She spit back.[4]

         At about that time, unbeknownst to Ms. Parker, [5] a police officer arrived. While sitting in his car, the officer saw Mr. Powell face-to-face with Ms. Parker, surrounded by approximately ten people, [6] all standing near a car and yelling at each other. The officer could not hear what they were saying, but he saw Ms. Parker spit on Mr. Powell. When he spoke to her at the scene, she explained (because the officer had not seen the entire encounter and in particular, had not seen Mr. Powell spit on Ms. Parker) "that she wouldn't just spit on him for no reason, that he spit on her first." The officer then arrested Ms. Parker for simple assault.

         At trial, Mr. Powell did not testify and the government called only one witness, the arresting officer. Ms. Parker testified on her own behalf. Ms. Parker conceded that she spit on Mr. Powell but claimed she was acting in self-defense. On direct and cross-examination, Ms. Parker repeatedly testified that she was afraid of Mr. Powell. On direct, Ms. Parker was asked what she believed was going to happen at the time she spat back at Mr. Powell and she said, "I thought he was going to hit me, honestly that was the next thing. I was fearing for my life. . . . I am scared for my life, like I didn't know what they w[ere] going to do." On cross-examination, she specifically denied being angry: "I wasn't angry. I was scared for my life. . . . I was more scared than anything." In response to a follow-up question from the court-"Why is it that you spit in [Mr. Powell's] face?"-she explained, as she had to the police officer, that she had spit on Mr. Powell "[b]ecause he came on my property and . . . spit on me first." Finally, on redirect, Ms. Parker once again explained why she had spit on Mr. Powell:

It was just that he spit in my face and I felt scared with the way they approached me that day. They approached me in a scary situation. I had a lot of people approach me at one time and I really did not know what I did or what I did wrong for him to say he was going to smack me and walk on to my property and then to spit in my face.

         The government argued in closing that it had carried its burden to show that "the defendant was not in fear of imminent bodily harm which is the standard of self-defense." Instead the government asserted that the evidence established that Ms. Parker was "very angry, " "indignant, " and "offended by what she states that the complainant did to her." The government further asserted that Ms. Parker had not "expressed a fear of imminent bodily injury. What she has expressed is being angry at this complainant and not liking this complainant." The government then highlighted Ms. Parker's testimony that she had spit on Mr. Powell because he spit on her. The defense countered in its closing that there was "absolutely no reason or evidence to believe that Ms. Parker wasn't afraid and, in fact, it is to the contrary." "[T]here is evidence and there is testimony that she was actually afraid . . . and that she had reasonable grounds for that belief."

         The trial court, after determining that Ms. Parker's spitting was an assaultive act, rejected her claim of self-defense, but not on the ground urged by the government. Preliminarily, the court "instruct[ed] [it]self" on the law of self-defense and acknowledged that "every person has the right to use a reasonable amount of force in self-defense if one, she actually believes she is in imminent danger of bodily harm and if two, she has reasonable grounds for that belief."[7] The court then found, contrary to the government's argument, that Ms. Parker did reasonably believe herself to be in such danger:

I conclude based on this record that Ms. Parker reasonably believed that she was in imminent danger of bodily harm. I think it is a very rich record with respect to her belief of imminent bodily harm and the reasonableness of that belief. She testified entirely credibly with no impeachment at all that amounted to anything except a minor difference in recollection about exactly what the spacing of the complaining witness and Ms. Parker was, that she was walking out of her door to get into her friend's car and as she was doing nothing more than walking to a car, Mr. Powell who was sitting nearby on his family's porch said loudly enough for her to hear, I should go over there and smack the shit out of that bitch, and he then approached her walking across the street like he was going to fight her and he was backed up by his mother who was also saying aggressive things towards Ms. Parker. They were saying such things as, bitch, you hot, which meant that she was working with the police and, you want that smoke, which was a threat to shoot and he got right up in her face and she said, who you talking to, and he said, bitch, you, and she said, whatever, little boy, get out of my face, at which point he spit on her and a half a dozen members of his family were also approaching her and backing him up.

         The court also "credit[ed] Ms. Parker's testimony that she didn't realize that Officer Bradley was there" and thus did not appreciate she could have asked him for help:

It is perfectly believable to me that with people shouting at each other, with her attention focused on what is going on and having been spit on, on having been threatened, on the mother coming across the street and yelling at her also on the back up of the relatives, that she is looking at all of that and everything else that is occurring is somewhere in the background noise and not quite registering for her. So, I don't think that it detracts from her credibility that the officer was there and she could easily have turned to the officer and said, look what he did and then he would be prosecuted before me for assault instead of her. I accept Ms. Parker's explanation that she was afraid even though she didn't get in the car. It is her judgment whether she is at more risk in a confined space than she is out in the open. She had family members to access to her as long as she was out in the open. I am not going to question that judgment and I don't think it detracts from her testimony that she actually did fear that she was in imminent danger of bodily harm that she didn't get into the car. That is a judgment that you make at the time and it was for her to make at that time.

         Although the court found that Ms. Parker reasonably believed herself to be endangered by Mr. Powell and his entourage, the court nonetheless concluded that Ms. Parker's self-defense claim failed because of what it perceived to be Ms. Parker's motive in responding to Mr. Powell:

It is [e]minently reasonable that with those threats and that expressed motivation and that backup she would feel herself in imminent danger and I find that she did, but in order for self-defense to apply she has to use a reasonable amount of force in self-defense.[8] Using a reasonable amount of force is not[9] because she is angry or indignant or outraged or because of injustice, if somebody spits in your face[, ] which is what he did, that person deserves to be spit on and should expect to be spit on, [but] that is not self-defense. That is spitting[, ] but not for purposes of self-defense[, ] and the government has proven on this record that the spitting occurred not for reasons of self-defense but for those other reasons. The government correctly argues that every time Ms. Parker is asked, why did you spit on him, the immediate answer is, because he spit on me, and that was said directly on the scene to the police officer. The answer to the same effect was indeed given to the prosecutor, I spit on him because he spit on me, and I directly asked, why did you spit on him. I spit in his face because he came on my property and he spit on me first and there is street justice in that. That is fine in a sense, in a fairness sense and I will take account of sentencing time but it is not fine when it comes to the law of the District of Columbia because what could have been expected to happen next if that police officer had not been there was that Mr. Powell backed up by his family and surrounding Ms. Parker the way he was and having just been spat on would have made good on some of those threats, not the shoot you threat but the beat the [shit] part of the threat. They had the numbers and they had the anger and they had their expressed motivation.

         The court concluded that "[f]or all th[e]se reasons . . . the government ha[d] proved beyond a reasonable doubt that Ms. Parker committed the offense of simple assault and did not spit on Mr. Powell as an act of self-defense."

         II. Analysis

         When a defendant "present[s] any evidence that she acted in self-defense, " the government assumes the burden of proving, beyond a reasonable doubt, that she did not. See Williams (Shirley) v. United States, 90 A.3d 1124, 1128 (D.C. 2014). In this case, Ms. Parker argues that the government failed to present sufficient evidence that she did not act in self-defense when she spit on Mr. Powell. We review sufficiency of the evidence claims de novo. High v. United States, 128 A.3d 1017, 1020 (D.C. 2015).[10] In so doing, "we consider all the evidence in the light most favorable to the government, according deference to the fact-finder to weigh the evidence, determine the credibility of the witnesses, and draw all justifiable inferences of fact." Williams (Furl) v. United States, 113 A.3d 554, 560 (D.C. 2015). If we find "no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, " we must reverse. Id.

         Here, the trial court credited Ms. Parker's testimony that she "was afraid, " and determined that she subjectively and reasonably believed that she was in imminent danger of bodily harm from Mr. Powell[11] after he and his family encircled, insulted, and threatened her, and he spit on her. Nevertheless, the court concluded the government had presented sufficient evidence to prove beyond a reasonable doubt that Ms. Parker was not acting in self-defense because it somehow discerned that Ms. Parker's fear and reasonable belief that she was in imminent danger did not motivate her to spit on Mr. Powell. Instead the court detected from the evidence that Ms. Parker was motivated by "ang[er], indigna[tion] or outrage[]"-a desire to impose what the court called "street justice."

         As a preliminary matter, we question whether the record supports the court's finding that Ms. Parker acted out of a purely retributive motive. See High, 128 A.3d at 1020 (noting that we defer to the trial court's credibility determinations and findings of fact from a bench trial unless they are "plainly wrong or without evidence to support [them]" (alteration in original)). The government's only witness, the arresting officer, could not testify to much more than the fact that he had seen Ms. Parker spit on Mr. Powell, and he did not attribute any emotion to her, much less describe her as being angry or indignant. For her part, Ms. Parker never indicated that she had the "street justice" motive that the court imputed to her. Moreover, she denied that she was angry, and she was not impeached on this point. In short, the record evidence was that Ms. Parker "was scared for her life"-the reasonable inference being that she acted upon her reasonable belief that she was in imminent danger.

         The trial court's contrary motive determination appears to be based entirely on Ms. Parker's initial explanation to the police officer and her subsequent testimony in court that she spit on Mr. Powell because "he spit on me first."[12] The court inferred from this explanation that, notwithstanding her credited testimony to the contrary, Ms. Parker was "angry or indignant or outraged" and was motivated to act solely based on these emotions.

         We are doubtful that Ms. Parker's admissions that her action was responsive to Mr. Powell's initial assault can carry the retributive meaning the court ascribed to them. It seems more likely that her statement to the police officer-who arrived in the midst of the incident and whom Ms. Parker did not see until he approached her to place her under arrest-was made to ensure that the officer understood the full sequence of events and, in particular, that she was not the first aggressor. Similarly, her response to the court's "why" inquiry, taken in context of her previous and subsequent expressions of fear, seems more susceptible to a benign interpretation that is entirely congruent with her claim of self-defense: to repel the reasonably perceived danger, she fought fire with fire; she matched one spitting assault (Mr. Powell's) with another (hers) to communicate that she would give as good as she got and that Mr. Powell should leave her alone. Furthermore, when considered in the context of her fully credited testimony, in which she unambiguously related her fear of Mr. Powell, it is difficult if not impossible to accept that Ms. Parker's he-spit-on-me-first statement alone establishes, beyond a reasonable doubt, that Ms. Parker was motivated solely by a desire to impose "street justice."[13] See Williams (Shirley), 90 A.3d at 1129 n.6 (holding that the defendant's "ambiguous statement d[id] not tip the balance of the weight of the evidence to the extent that it dispel[led] any reasonable doubt" that she was acting in self-defense).[14] Instead, at most, the evidence supports only a determination that Ms. Parker was motivated to spit on Mr. Powell by a mixture of fear and anger.[15]

          We need not decide whether the trial court made a factfinding error, however, because the trial court's focus on motive begs a more fundamental question of law: if the government fails to disprove that a defendant reasonably believed that she was in imminent danger of bodily harm, can it still carry its burden to rebut a claim of self-defense by showing that there was another motive guiding the defendant's action? For the reasons discussed below, we conclude that, under this court's long-standing articulation of the two-part test for the defense of self-defense captured in our standard jury instructions, it cannot.

         "The essence of the self-defense situation is a reasonable and bona fide belief of the imminence of . . . bodily harm."[16] Kinard v. United States, 96 F.2d 522, 526 (D.C. Cir. 1938).[17] Thus, in numerous cases, this court has acknowledged that when a claim of self-defense is raised, the threshold question for the fact finder is whether the government has disproved that the "appellant actually and reasonably believed that [s]he was in imminent danger of bodily harm." Higgenbottom v. United States, 923 A.2d 891, 900 (D.C. 2007).[18] And our standard jury instruction on self-defense directs that:

Every person has the right to use a reasonable amount of force in self-defense if (1) s/he actually believes s/he is in imminent danger of bodily harm and if (2) s/he has reasonable grounds for that belief. The question is not whether looking back on the incident you believe that the use of force was necessary. The question is whether [name of the defendant], under the circumstances as they appeared to him/her at the time of the incident, actually believed s/he was in imminent danger of bodily harm, and could reasonably hold that belief.

Criminal Jury Instructions for the District of Columbia, No. 9.500 (5th ed. rev. 2014) ("Self Defense-General Considerations").[19]

         If there is evidence that the defendant actually and reasonably believed herself to be in imminent danger of bodily harm-i.e., if the government cannot prove beyond a reasonable doubt that the defendant did not have such a belief-the inquiry proceeds to the amount of force employed. A defendant may use "only reasonable force to repel the perceived attack." Higgenbottom, 923 A.2d at 900. Or, rephrased in the context of the government's burden of proof, "[i]n a situation where the evidence establishes that self-defense would otherwise be justified, " the government can rebut a self-defense claim only if it proves that a defendant used "excessive force." Williams, 90 A.3d at 1128. But distinguishing what constitutes excessive force from a "reasonable amount of force" is not a wholly objective inquiry; the factfinder must take into account evidence of the defendant's mental state under the circumstances. See Fersner v. United States, 482 A.2d 387, 391-92 (D.C. 1984) ("[T]he victim's subjective perceptions are the prime determinant of the right to use force-and the degree of force required-in self-defense, subject only to the constraint that those perceptions be reasonable under the circumstances.").[20]

[T]he claim of self-defense is not necessarily defeated if, for example, more knife blows than would have seemed necessary in cold blood are struck in the heat of passion generated by the unsought altercation. A belief which may be unreasonable in cold blood may be actually and reasonably entertained in the heat of passion.

Inge v. United States, 356 F.2d 345, 348 (D.C. Cir. 1966).[21] The question is thus whether the defendant's use of force is "a proportionate reaction to the threat that [s]he perceived" while in the heat of the moment. Ewell, 72 A.3d at 130. Again, this is reflected in the standard jury instruction entitled "Amount of Force Permissible, " which explains that a defendant confronting nondeadly force[22] may employ "a reasonable amount of force" as informed by her subjective assessment of the circumstances. The instructions first state that "[a] person may use an amount of force which, at the time of the incident, s/he actually and reasonably believes is necessary to protect himself/herself from imminent bodily harm." Criminal Jury Instructions for the District of Columba, No. 9.501.A (emphases added). The instructions further provide that "[a] person acting in the heat of passion, . . . does not necessarily lose [her] claim of self-defense by using greater force than would seem necessary to a calm mind. In the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind." Criminal Jury Instructions for the District of Columbia, No. 9.501.C.

         Under this construct-where the first inquiry is whether a defendant actually and reasonably believed she was in imminent danger of bodily harm and the second inquiry is whether, taking this belief into account, she employed excessive force-motive is not an additional, separate consideration.[23] If the government has not disproved that a defendant actually and reasonably believed she was in imminent danger of bodily harm, we accept that she acted out of that belief.[24] See Garibay v. United States, 634 A.2d 946, 948 (D.C. 1993) (explaining the binary motive inquiry by juxtaposing two possible outcomes: "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"); see also Rink v. United States, 388 A.2d 52, 56 (D.C. 1978) (holding that motive evidence is admissible to address "whether appellant reasonably apprehended a danger of imminent, serious bodily harm from the deceased"); Flores v. United States, 698 A.2d 474, 482-83 (D.C. 1997) (citing Garibay to allow evidence of prior violent acts to show that defendant was the first aggressor).[25] This construct is reflected in our cases assessing sufficiency of the evidence challenges: claims of self-defense rise or fall on determinations of whether the defendant reasonably believed herself to be in imminent danger of bodily harm or used excessive force.[26]

         To our knowledge, this court has never held that, despite evidence that the defendant actually and reasonably believed she was in imminent danger of bodily harm, her self-defense claim had been adequately disproved on the ground that the defendant had somehow set aside her belief and acted purely out of a different motive-e.g., anger or a desire for retribution. The government does not cite to any such case.[27] And notably, neither does our dissenting colleague.[28]

          In Ms. Parker's case, the trial court as the factfinder concluded that Ms. Parker actually and reasonably believed she was in imminent danger of bodily harm from Mr. Powell. At that point the only question left for the trial court was whether Ms. Parker had employed excessive force. Ms. Parker obviously did not use more force than was reasonable under the circumstances.[29] Thus the court should have determined that Ms. Parker acted in self-defense and acquitted her of assault.

         But instead of acquitting Ms. Parker, the trial court appeared to misuse the inquiry into whether Ms. Parker had used "a reasonable amount of force, " to circle back to Ms. Parker's motive in responding Mr. Powell's assault. It is correct that, in order for a factfinder to determine if a defendant employed excessive force, consideration should be given to whether a defendant subjectively perceived a need to employ such force to repel the threat. As explained above, however, this consideration of the defendant's subjective perceptions is meant to expand the boundaries of what constitutes reasonable force, "by tak[ing] into account that the defendant was acting in the 'heat of conflict.'" Williams, 90 A.3d at 1128. It is not meant to authorize a factfinder to separately assess a defendant's motive in responding to a reasonably perceived threat to her safety.[30]

         Accordingly, we reaffirm that, when self-defense is raised, the proper inquiry with respect to a defendant's mental state (which motive evidence may inform) is whether she subjectively (and reasonably) believed that she was in imminent danger of bodily harm. The government bears the burden to prove that a defendant did not hold such a belief. Where, as here, the government fails to meet that burden-i.e., where it cannot disprove that the defendant subjectively and reasonably believed she was in imminent danger of bodily harm-and also fails to show that the defendant employed excessive force, the defendant must prevail on her self-defense claim.

         III. Conclusion

         For the foregoing reasons, we reverse Ms. Parker's conviction for simple assault.

         So ordered.

          Ferren, Senior Judge, concurring:

         I join the opinion of the court and write separately only to reinforce it with some additional perspective.


         This is a strange case. A man shouts an ugly slur against his neighbor across the street as she is getting into a friend's car. He then crosses the street with members of his family, calls her a "bitch" (and more), and spits in her face as his family surrounds the car and hurls insults. She spits back. Others arrive (apparently including members of her family), and a shouting match ensues. In the meantime, a police officer has appeared in time to see her spit (but not to see her aggressor do so). The officer arrests her for simple assault, and she is charged.

         In a bench trial the court finds that appellant "actually did fear" and "reasonably believed that she was in imminent danger of bodily harm, " having testified that she was "scared for my life, like I didn't know what they were going to do." But the court disallows her claim of self-defense, concluding that her principal reason for spitting in response to her aggressor's liquid assault was that "he came on my property and . . . spit on me first" - words of anger, indignation, and outrage, said the court, not words of defense against attack. Moreover, the trial court appears to believe that mere spitting, while noxious though not excessive, was not an authentic defensive move. The court's ultimate characterization of her mindset - that she sought "street justice, " not self-protection, in spitting back - summarizes the court's rejection of self-defense.

         The issue here, therefore, is whether a victim's court-established fear of imminent bodily harm, coupled with non-excessive force - however weak - in response, is enough to justify a claim of self-defense; or whether that fear and response, once established without retraction, can be negated by additional findings that the victim's dominant mindset was a desire for retribution, and that the force used was too lame to evidence either a fearful mindset or an attempt at self-protection.

         The theory of the dissent is twofold:

[T]he [1] necessary state-of-mind inquiry is not fully satisfied upon a conclusion that the defendant actually and reasonably believed she was in imminent danger of bodily harm, and . . . [2] the self-defense analysis also is not complete upon a further conclusion that the amount of force used was not excessive. Post, at 56.

Respectfully, I believe the dissenting theory is flawed.

         First, it presupposes a threshold trial-court analysis of the defendant's mindset that requires a probe of her motives and emotions, even after establishing her actual and reasonable belief of imminent bodily harm. According to the dissent, such a probe, without precedent, can cancel a court's firm finding of the level of fear that the ...

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