Russell H. Brocksmith v. United States, No. 12-CF-287 (decided September 18, 2014)
Players: Associate Judges Glickman and
Blackburne-Rigsby, Senior Judge Nebeker.
Opinion by Judge Blackburne-Rigsby.
Concurring opinion by Judge Glickman.
PDS for Appellant. Trial Judge
Thomas J. Motley.
Facts: Brocksmith was convicted of assault with
intent to rob for attacking Valerie Villalta and trying to take her
handbag. Villalta went home after the
incident and called the police ten or fifteen minutes later. The defense argued that Villalta fabricated
her allegations after Brocksmith rejected her sexual advances and insulted
her. Villalta was a transgender woman,
and according to the defense, she was motivated to falsely accuse Brocksmith
because his insults “went to the core of who she was.” On redirect, she attributed her delay in
calling police to fear that the police would not arrest Brocksmith and that she
would encounter him again.
During deliberations, a juror sent a note expressing the
belief that Villalta “most likely ha[d] an overwhelming incentive to not report
an assault because it would mean she would . . . expose herself as
LGBT/transgendered” to those who might harbor hostility towards her. The note asked whether the juror was
“permitted to consider” this belief in evaluating Villalta’s credibility. Defense counsel asked the judge to tell the
juror not to consider this factor because there was no evidence to support
it. Instead, the trial judge referred
the jury to Instruction 2.104, given as part of the initial instructions,
telling the jury that it was “permitted to draw, from the facts which you find
have been proven, such reasonable inferences as you feel are justified in light
of your experience.”
Because he had prior convictions for crimes of violence,
Brocksmith was sentenced to a fifteen-year prison term under the enhancement
provision of D.C. Code § 22-1804a(a)(2).
Issue #1: Did the repetition of the “reasonable
inferences” instruction in response to the juror note improperly lead the jury
to believe it could consider an unsupported assumption that as a transgendered person
Villalta had an “overwhelming incentive not to report” an assault?
Issue #2: Was remand for resentencing required
because the trial judge 1) erroneously believed there was a legislative
presumption against suspending any part of Brocksmith’s fifteen-year recidivist
sentence, or 2) failed to make necessary inquiries under § 23-111 before
imposing an enhanced sentence?
Holding #1: The trial court’s response to the jury
note was not an abuse of discretion.
There was enough evidence in the record to support an inference that
Villalta “had a disincentive to contact the police for fear of discrimination
and exposure,” given her testimony that she delayed calling police because she
was scared and that she knew she was “a transgender person” who had been a
crime victim, as well as her “potential demeanor on the stand,” and “the jury’s
common-sense knowledge that transgender individuals face hostility and
discrimination in our society.”
Holding #2: Resentencing was unwarranted. Because the record shows that the judge would
not have given Brocksmith a split sentence in any case, the Court did not reach
the question whether the legislative intent of D.C. Code § 22-1804a(a)(2)
envisioned a fifteen-year prison term. And
although the trial court failed to strictly comply with the procedural
requirements of § 23-111, the defense did not object below, and Brocksmith did
not show that reversal is required under the plain error standard.
Of Note:
- The Court distinguishes this case from those where it has “instructed the jury that it cannot make credibility findings solely on the basis that the witness is a police officer,” as well as from cases involving “improper gender bias,” on the ground that “there was a solid evidentiary foundation” for an inference that Villalta delayed reporting the assault because she feared exposure.
- Judge Glickman concurs in the judgment, criticizing the majority’s view of the evidence as “strained” and explaining that he sees “no evidence” that Villalta delayed reporting because she was transgender. Nonetheless, he writes that it would have been an “unwarranted intrusion” on the jury’s fact-finding role for the trial judge to have responded to the juror’s note “by forbidding the inference he described.” Accordingly, he concludes that “the judge responded to the juror’s inquiry correctly.”
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