                                 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.

                           UNITED STATES, APPELLEE.

                         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
                                           2

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.).
                                           3

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).
                                        4

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.
                                          5

      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)).
                                          6

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 ).
                                          7

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)).
                                          8

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)).
                                         9

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.
                                         10

                             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.
                                         11

      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.
                                        12

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,
                                        13

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
                                            14

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
                                         15

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
                                         16

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),
                                         17

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.”
                                          18

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.
                                            19

      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
                                         20

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.)
                                        21

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
                                          22

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.
                                          23

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
                                           24

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…)
                                        25

      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.”
                                         26

      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).
                                              27

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).
                                         28

      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
                                         29

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.
                                         30

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
                                         31

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.
                                         32

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.
                                      33

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.
