A trial court may permit jurors evaluating the credibility of a transgender complainant to consider their “common-sense knowledge” that transgender people face discrimination, where the evidence supports an inference that fear of discrimination contributed to the complainant’s delay in reporting an assault
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.”