Appeal from the United States District Court for the District of Hawaii. D.C. No. CR-91-01502-ACK. Alan C. Kay, District Judge, Presiding
Before: Alarcon, Rymer and T. G. Nelson, Circuit Judges.
Cassandra Y. Wilson appeals from the judgment of conviction and the sentence imposed after a jury found her guilty of involuntary manslaughter, in violation of 18 U.S.C. § 1112, and assault with a dangerous weapon, in violation of 18 U.S.C. § 113(c). Wilson contends that the district court erred in permitting Kevin Jiles to testify that he had sexual intercourse with her one and one-half hours prior to the stabbing. She also argues that the district court erred in denying her motion for a new trial because (a) there was newly discovered evidence that Jiles committed perjury; (b) there was newly discovered evidence that the Government withheld exculpatory evidence; (c) the prosecutor improperly referred to evidence previously excluded by the trial court and improperly commented on the character and credibility of witnesses; and (d) the jury's verdicts of involuntary manslaughter and assault with a dangerous weapon are legally inconsistent. Wilson further contends that the district court erred in increasing Wilson's base offense level for aggravated assault under the Sentencing Guidelines by four levels for use of a dangerous weapon and by five levels for infliction of permanent or life-threatening injury. We affirm the judgment of conviction and the sentence.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On August 15, 1991, Cassandra Y. Wilson (Wilson) fatally stabbed her husband, Jerome. Wilson was charged with voluntary manslaughter in violation of 18 U.S.C. § 1112 and assault with a dangerous weapon in violation of 18 U.S.C. § 113(c). At trial, Wilson testified that she acted in self-defense. To bolster her self-defense claim, Wilson introduced evidence that she suffered from Battered Woman's Syndrome (BWS). Although the district court acknowledged that BWS is not a defense in this circuit to the charged offenses, it permitted Wilson to introduce evidence of BWS to prove Wilson's state of mind when she stabbed Jerome.
There was a conflict in the evidence concerning the events preceding the stabbing. The Government presented evidence that tended to demonstrate that Wilson stabbed her husband in the heat of passion during an argument that ensued after she returned home from a Non-Commissioned Officers Club (NCO Club). Rhonda Virgil, a house guest of Wilson's on the night of the stabbing, testified that she and Wilson went to the NCO Club together at approximately 10:30 p.m. Wilson left the NCO Club without Virgil when it closed at approximately 1:30 a.m. Wilson explained to Virgil that she had to "go somewhere." Virgil testified that Cecil Rivers, a male friend of hers, took her to get something to eat at a Jack in the Box restaurant, and then drove her to Wilson's apartment. Virgil testified that Mr. Rivers parked the car on the side of Wilson's apartment, and waited there with Virgil until Wilson arrived home at approximately 3:30 a.m. Virgil testified that she waited outside in the car until that time because she did not want Jerome to find out that she had returned home from the NCO Club without Wilson.
When Wilson returned at approximately 3:30 a.m., she and Virgil entered the apartment together. Virgil testified that Wilson and Jerome argued over the fact that she had taken the car to the NCO Club. Jerome slapped Wilson, and she pushed him. Virgil testified that Wilson told Jerome, "if you keep fucking with me, I'm going to cut you." Virgil did not see a knife in Wilson's possession.
Virgil testified that after she intervened to break up the mutual combat, she saw Jerome go to his bedroom and lock the door. Minutes later, Wilson followed Jerome to the bedroom. Virgil stated that Wilson appeared to be "hyped." Virgil further testified that Wilson's son was in the bedroom with Jerome, but that the child was not crying.
When she reached the bedroom, Wilson screamed at Jerome to "open this fucking door." After Jerome had opened the door, Virgil observed Wilson and Jerome engaged in a mutual shoving match. At this point, Virgil went to check on the other children. When Virgil returned to the bedroom, she observed that Jerome had Wilson's arms pinned to the bed. Virgil then left the bedroom to call the military police. Shortly after she left, she heard the bedroom door shut. Virgil immediately went back to the bedroom and pleaded for them to open the door. Virgil testified that during this time, she heard Jerome twice call Wilson a "bitch" and a "whore". She heard Wilson scream, "Jerome, stop, stop." She also heard Wilson tell Jerome, "if you don't leave me alone, I'm going to fuck you up."
Wilson took the stand in her own defense. She testified that on the night of the stabbing, she left the NCO Club when it closed at approximately 1:30 a.m. On direct examination, Wilson related the following testimony concerning the events preceding the stabbing:
Mr. Ney (defense counsel): Now, did you leave there with Rhonda, leave the club with Rhonda?
Mr. Ney: Okay. What did Rhonda do?
Wilson: Rhonda went with one of her friends at work. I don't know where they went.
Mr. Ney: And what did you do?
Wilson: And I went -- because we planned to meet back at the house at 3:30, and -- so I was talking to Jiles. He was one of my neighbors --
Mr. Ney: Okay. Jiles is one of your neighbors?
Mr. Ney: His first name is Kevin?
Mr. Ney: Do you know what he does for a living?
Mr. Ney: And did you meet Rhonda back at your house at 3:30?
Wilson testified that when she arrived home, Jerome hit her for taking his car to the club. Wilson testified that after she grabbed a steak knife from the kitchen and threatened Jerome with it to make him leave her alone, Jerome went to the bedroom and locked the door. Wilson testified that minutes after Jerome went to the bedroom, she heard her son crying and followed Jerome to the bedroom to make sure that he had not harmed him. Wilson testified that once Jerome opened the door, he resumed hitting her, and she stabbed him in self-defense.
On cross-examination, Wilson related the following testimony concerning her behavior with Jiles two hours before the stabbing:
Mr. Kubo (the prosecutor): Directing your attention to August 15, 1991, more specifically, between 1:30 and 3:30 that morning, you were with Kevin Jiles, weren't you?
Mr. Kubo: And he is a neighbor of yours?
Mr. Kubo: -- so to speak? You left the club with Kevin Jiles after the club closed; correct?
Mr. Kubo: You did not? Did you get into Kevin's car at any time that night? Or he get into yours?
Wilson: Uh -- I don't -- I'm not sure.
Mr. Kubo: You're not sure. But you were with him during that time period?
Mr. Kubo: But you were with him during that time?
Mr. Kubo: You weren't only talking, though, correct?
Mr. Kubo: You weren't only talking, were you?
Mr. Kubo: Isn't it a fact that, on that night, between the time of 1:30 to 3:30 that morning, which was approximately an hour and a half to two hours before you stabbed Jerome, you had sexual intercourse with Kevin Jiles; is that not correct?
Over defense counsel's objection, the Government called Jiles as a rebuttal witness. Jiles testified that he and Wilson left the NCO club when it closed at approximately 1:30 a.m. and drove ...