*1 ANDERSON, Appellant, Steven STATES, Appellee.
UNITED
No. 01-CF-1432. Appeals.
District of Columbia Court
Argued March 2004. Aug.
Decided *3 McBride, Assistant United States
Patricia appellee. Attorneys, were on the brief SCHWELB, Judge, Before Associate Retired,* STEADMAN, Judge, Associate BELSON, Judge. Senior Judge, Retired: STEADMAN, Associate Anderson, con- Appellant, Steven *4 counts fol- of of assault victed a number be- that occurred lowing an altercation ex-girlfriend, tween and his appellant challenges Appellant Tameika Butler.1 grounds his on the convictions (1) gov- permitting trial court erred appel- ernment cross-examination act regarding prior lant bad (2) act appellant, reference to (3) cross- closing .government arguments, regarding police examination of a officer scene, at the person the statements of a (4) Appel- tape. arid of a 911 admission lant also contends failed sufficient evidence present Butler suf- finding warrant a that Ms. bodily injury, prerequi- fered serious affirm. We aggravated site for assault.
I. Facts day question, appellant, with On the Ohm, Eugene K. Public Defender Ser- Kelley, his Leonard step-grandfather, vice, Klein, with whom James Public De- son, three-year-old picked Butler’s up Ms. Service, brief, fender appel- was on the for Kelley’s in Mr. Doné placing Doné. After lant. car, walked from Ms. Butler and a friend Deha, alley Bernard to a store on through J. Assistant United her home an Attorney, States appellee. Roscoe C. Minnesota Avenue. Before she reached Howard, Jr., store, Attorney Ms. Butler. appellant approached United States at the filed, time brief R. as to the and John Fish- and Ms. Butler differed Appellant er, Valliere, Florence, Barbara Toni J. events that followed.
* Judge Judge (1981) (recodified Steadman was an Associate § 22-504.1 at D.C.Code argument. court at the time of His status (2001)) § and two counts D.C.Code 22-404.01 Retired, changed Judge, to Associate on Au- assault, simple of D.C.Code violation gust 2004. (recodified § at D.C.Code (2001)). merger arguments § 22-404 No are Specifically, appellant two was convicted of appeal. made on assault, aggravated counts of in violation of on must have fallen that Ms. Butler appellant trial
Ms. Butler testified the altercation. during her knife going yanked her hair and told her was her into Appellant guided to kill her. then that she Brown testified Ms. Jeanette alley, appellant alley. an Once Minnesota Avenue driving had been down punched Ms. Butler several times Butler be- appellant and Ms. and saw the herself, Ms. Attempting face. to defend alley. While they fore entered waist Butler retrieved a knife from her Brown saw light, a red Ms. at stopped Butler to pouch. Appellant knocked Ms. told the slap Ms. Butler. She leg that,” to cut ground, appel- and she tried his not to “do which your grabbed you, “fuck mind Appellant responded, with the knife. lant Butler appellant pushed As Ms. began stomp- He business.” knife from Ms. Butler. alley, Brown called the toward the Ms. lay with his feet she ing on her face while police. ground, struggling on the to cover her Ms. Butler
face. then stabbed step-grandfa- Kelley, appellant’s Mr. body. Ms. Butler the left side her ther, from appellant emerged testified testified she could not recall what occurred Appel- alley up” in a “worked state. *5 after that until the arrived. ambulance had Ms. But- lant admitted he beaten him Kelley to drive to a ler and asked Mr. Appellant upon testified that encounter- later, a friend’s house. About two months Avenue, ing Ms. Butler on Minnesota she deputy fugitive apprehension on the war- inquired he bring when would Doné home. squad rant of the U.S. Marshals Service After bring stated he would at apprehended appellant step-grandfa- his day, Doné back the next Ms. Butler indi- George’s County, ther’s house Prince get cated she should Doné some clothes Maryland. began walking and the two back her route, home. While en Ms. Butler told II. Drew Evidence appellant not to take Doné around other Rankin, trial, Judge Prior to before women. Appellant testified that sought approval to use government court grabbed Ms. Butler to calm her. Once prior of acts evidence three incidents bad alley, appellant claimed that Ms. But- Only at at trial. the third incident is issue. punched ler him in slapped the face so he sought show that response. her in Appellant testified that prior the summer of several months the two shoved each other until Ms. Butler altercation, to the indicted Ms. Butler ar- himself, produced a protect ap- knife. To man. home in a vehicle with another rived arm, pellant grabbed Ms. Butler’s twisted jealously, Appellant, in a fit of stabbed her, her arm behind and knocked her to car, man, smashed the windows of the ground. Upon falling, Ms. Butler hit passenger. to attack another attempted against her face a fence. Ms. Butler to re- Finding the incident to be relevant grabbed appellant’s self-defense, it off ripped shirt and claim of butting appellant’s him. Appellant Judge fell on Ms. Butler and she Bush ruled Judge both Rankin grabbed appellant’s legs. Appellant onto of the incident could pretrial that evidence stomped his and ran No evidence of the incident feet free himself be admitted.2 case in alley. government’s out of contended at introduced evidence, Originally, Judge tially proposed addressed the Drew the case was before Ran- kin, Judge issue was reevaluated before but before trial commenced the case was and the Judge Judge ini- Bush. transferred to Bush. Rankin sues).” chief; however, Riley did v. United cross- (citing 539-540 Drew incident, appellant regarding examine U.S.App. United D.C. 15- objection.3 to which made no On (1964)) (other F.2d cita appeal, appellant adequacy contests the omitted). tion, footnote, emphasis To government’s pretrial proffer regard- evidence, warrant of Drew admission “our evidence, ing asserting its Drew cases that the defendant’s com have held government failed to establish the crime must be estab mission of the other crime by clear and convincing Appel- evidence. and convinc by clear preliminarily lished challenges government’s lant also (citation 2n. ing evidence.” Id. at 540 appellant regard- cross-examination of the omitted). ing government’s the incident and the ref- closing erence to the incident its re- A admission Drew trial court’s marks. is reviewed upon proffer evidence based “In Daniels v. for abuse of discretion.
A. The Proffer a ‘trial court United held that we While “evidence of a crime for to conduct its may act within its discretion which the accused is not on trial is ‘inad admissibility of the pretrial inquiry on prove disposition missible to to commit of a ‘de by means other evidence crimes crime, jury may from which the infer that in government’ tailed from effect, defendant committed the crime trial of holding, in a bench stead of charged,’ crime, [o]ther crimes evidence is admis will be presumably which the other ... if important’ sible when it is admit fully ‘relevant and before the replicated ” (among issue of intent other is- ted.’ *6 Crutchfield 3. The cross-examination of that either. oc- A: I don’t recall Q: curred as sitting follows: in the back a third man There was Q: summer, fall, seat, go early Let’s back that? you to the remember do year night 2000. Tameika was out late one A: No. her, you looking Q: and you this, were out Well, do you you ask do remem- let me remember that? cap approaching pulling and ber down ski A: I don't recall that... a knife? the car with Q: you actually And went in the kitchen and No, A: I don’t remember. knives, got you two do remember that? Q: person stabbing the you Do remember A: I don’t remember that either. sitting of the car? the driver's seat in Q: your pocket you You had one knife in and No, A: I don't. your jacket? had one in knife Q: going around to you ... do remember A: I don’t remember that. smashing and in of the car other side Q: you you Do remember waited outside Ta- the back window? meika's door until she came home? No, A: I don't remember. A: No. Q: any of that? You don't remember . Q: you Do remember that when she drove A: I none of that... don't remember up to the house she was in the car with two j; Q: you got into an- And then and Tameika men? that, you fight do remember other over A: I don’t recall that. that? Q: you ranting And earlier had been No, that. A: I don’t recall raving you knew Tameika was out with Q: say[ing] you And do remember Tamekia men, you do remember that? Bean, you, that didn't make sense at all. to A: I don’t recall that either... Q: in the back seat. Do up That was Doné’s father is that correct? When she drove sitting passen- you the car she was in the front remember that? ger sitting seat and there was another man A: No. seat, you in the driver's do remember that? young man was ro- thought defendant (quoting A.2d Daniels (D.C. with Ms. Butler.” mantically involved 1992)). government “In proffer, its Rankin, government Judge Before trial that the evidence must show the court fall of early in the summer or averred that during the trial proposes present that it “the [Ms. Butler] victim believed, would, clearly convincingly if car, two other men. The defen- as were uncharged crime oc establish romanti- that the victim was dant believed connected curred and the defendants were the men. The cally involved with one of Daniels, it.”4 A.2d at 347 supra, go after that victim saw the defendant added) (footnote omitted). (emphasis man, him, and also smashed some of beat the windows in the car.” case,
In
government
made sev-
Bush,
proffers regarding
Judge
eral
the incident:
Before
Rankin,
stated,
inci-
writing,
Judge
regard
before
and before
to the summer
“With
Judge
Judge
In
prosecutor
Bush.
its filed “Notice of Intent
dent she
before
[the
Evidence,”
proffered
to Introduce Other
that there
Crimes
Court
Rankin]
government proffered,
eyewitness
or
that incident.”
“[i]n
about late was an
saw
Fall, 2000,
Moreover,
early
acknowledged
Summer or
the defendant
defense counsel
young
vicinity
Judge
stabbed
man
Bush that
summer of 2000
“[t]he
Street, S.E.,
1209 30th
young
allegation
after the
incident
...
is an
Mr.
man drove
up
somebody
the car
which Ms. Anderson stabbed
because
riding.
jealous
person
Butler was
also
of the
who was with the
defendant
complaining
smashed some of the windows of the vehi-
witness. The
cle in an attempt
passen-
proffered
they
testimony
to attack another
have
ger.
stabbing
Prior to the
to that
complaining
[Ms. Butler]
and destruction
witness
as
property,
testimony
defendant indicated that
of another witness who’s a
angry
young
complain-
he was
at the
man
relative-a live-in relative
"
course,
Appeals
4. Of
'[a]
is not evidence at
States Court of
for District of Colum
*7
all,’
bia,
judge’s
longer applies
which makes the trial
task of
a court that no
stan
Huddleston’"),
determining
proposed testimony
by
whether
itself because it is bound
dard
denied,
1148,
another crime constitutes 'clear and convinc
520 U.S.
117 S.Ct.
t.
cer
1323,
(1997).
ing’ evidence a difficult one.” Parker v. Unit
L.Ed.2d 484
In Huddleston
137
States,
943,
681, 685,
States,
(quot
ed
A.2d
751
949
v. United
Daniels,
(Schwelb,
(1988),
ing
supra,
Supreme
the
459
opportunity to
point
judge may
decide the
at issue”
later so that the
decide whether
purpose
while “the
of the contemporane-
An
intervening
ruling.
events affect the
objection
ous
give
rule is to
the trial court
objection
in such a case
an
appeal
without
an opportunity
any potential
to correct
judge
at trial would bushwhack both the
they
errors
at
the time
are made.”
(citations omitted);
opponent”)
and the
36,
McGrier v. United
597 A.2d
45
Graves,
1546,
United States v.
5 F.3d
1551
14
(appellant’s objection
n.
(5th Cir.1993) (and
therein),
cases cited
government
good
lacked a
faith basis
denied,
1081,
1829,
cert.
asking question
for
a
on cross-examination
(1994); McGrier,
128 L.Ed.2d
su
cf.
preserve
did not
appeal appellant’s
for
pra,
ment) (citations omitted). error, Here, plain tence of must show appel- pretrial objection lant’s argued that allowance cross-examination “(1) government had not constituted demonstrated the ex- error that was obvious or readily istence of the apparent, other crime clear and and clear under current convincing law; evidence. After clearly prejudicial the trial court so to sub permissibly ruled that government’s stantial rights jeopardize very as to proffer, fulfilled, once “would be clear and integrity fairness and of the trial.” John convincing,” appellant required to son v. United 840 A.2d fact, (D.C.2004) (citations alert the court if proffer, such omitted); had Clayborne not been satisfied in order to request (D.C. 751 A.2d prohibit trial court 2000) (citations omitted). “Plain error from questioning regarding where, only exceptional found case the other crime. per- Where a trial court reviewing record, after the entire it can be mits the subject admission of evidence to said the claimed error is a fundamental condition, the fulfillment of a an opposing error, basic, something prejudicial, so so so party object must if it believes that condi- lacking justice in its elements that cannot tion has not been disput- fulfilled when the have been done.” Bates v. United See, ed is presented. evidence e.g., United (D.C.2003). Archdale, (9th
States v. 229 F.3d error, if any, was not ob Cir.2000) (“Absent a thorough examination with, begin vious. To it is far from clear objection raised in the motion why judge it should be obvious to the trial explicit limine and an ruling definitive produced had not by the district court that the evidence is substantive evidence accordance with admissible, party a preserve does not its when fact did not occur to of admissibility appeal issue a absent Moreover, general, defense counsel. contemporaneous objection”) (emphasis regard a added); Williams, cross-examination of witness Wilson v. 182 F.3d (7th Cir.1999) (“conditional that has not in a ing crime resulted rulings permissible upon showing conviction is require further at action trial... for exam- *9 (1) question of a factual basis for the ple, judge says the that certain evidence directly upon will that the crime “bears the unduly be admitted unless it would be given veracity respect of the witness in prejudicial way the the trial devel- ops Murphy issues involved in the trial.” v. may later events lead to recon- —then (D.C.1995) Bonanno, sideration, 505, litigant adversely and the af- 663 A.2d 509 (citation by subject omitted); the ruling fected must raise the v. United Sherer 460
States,
(D.C.1983),
self-defense,
of
732,
cert.
claim
pellant’s
470 A.2d
738
would be
imp
denied,
931,
325, 83
substantive evidence or
considered
(1984).
said that
L.Ed.2d 262
We have
See, e.g., Wesley v. United
eachment.7
“impeachment
the
should not be
rules
States,
(D.C.1988)
1022,
547 A.2d
1025
doc
analytically
confused with the
distinct
(“when a defendant
testifies to certain
introduction, as
trine that
restricts the
n factsor issues
his direct examina
during
evidence,
prior
substantive
an accused’s
of
tion,
‘opens
inquiry
the
to further
he
door’
crimes or
... Drew.”
bad acts [under]
matters
cross-examination.
into those
(em
Sherer,
470
at
n. 5
supra,
A.2d
738
scope
that cross-exami
The extent and
of
added).
phasis
Our cases have not made
discretion
subject to the broad
nation are
clear whether the
under
standard elicited
Howard v. Unit
judge.”)
trial
or
Drew
Sherer
the standard under
(D.C.
States,
524, 528 n. 6
663 A.2d
ed
apply to questioning
should
of the defen
1995)
in
exception for
(noting the Drew
regarding
dant himself or herself
other
state of
applies
tent
when the defendant’s
Compare
crimes.
Portillo v. United
issue,
of
a claim self-
including
mind is at
(D.C.1992)
States,
687,
609 A.2d
690-91
defense,
evidence
addressing extrinsic
but
(holding that the cross-examination of the
defendant).
the
not
of
cross-examination
ques
defendant was improper where the
Thus,
in'
any error
the allowance
tioning did not fulfill the strictures of
Sherer),
deemed
not be
cross-examination could
and Jamison v. United
Johnson, su
“clear under current law.”8
(D.C.1991),
600 A.2d
with Galin
at
pra, 840 A.2d
1280.
do v. United
A.2d
207
(D.C.1993)
(stating
applies
to
Sherer
Argument
Closing
C.
cross-examination of a “non-defendant wit
ness”).
argues
further
Nor have our cases elucidated
gov-
the
light
ap-
whether such
of
questioning,
improperly permitted
trial court
Questions,
course,
evidence,
assuming
"plain,” we
of
are not
8. Even
such error
jury
the
was so
instructed. SeePrice United
to
say
prejudicial
it
sub
cannot
that was so
(D.C.1997)
697 A.2d
818 n.
very
rights
fair
jeopardize
as to
stantial
J.,
Nonetheless,
(Schwelb,
concurring).
integrity
No extrinsic
of
trial.
ness and
"
government may
evidence
not
'manufacture
by the
evidence was introduced
by creating
impression
an
in the minds of the
stabbing
While
regarding the other
incident.
through questions
jurors
imply
exis-
question did
facts,'
predicate
tence of
the factual
unless
occurrence,
questions them
about the
(cid:127)
question
'grounded
good
is
faith
jury
was so
were not evidence and
selves
susceptible
proof
belief that those
are
facts
Price,
supra note
instructed. See
”
by competent
evidence.’ Plummer
(Schwelb, J., concurring);
at
818 n.
cf.
(cita-
Johnson,
(the "jury
supra,
III. of Police Officer happened witness as a rendition of what Appellant contends that trial alley.” appellant again objected court erred in permitting hearsay, prejudice and confrontation question police officer to grounds, determine which were denied.10 Furthermore, answers; (3) any potential prejudice appellant's ate the the trial assuaged by juiy the trial court's court's instruction to the that it could not jury government’s any convict the bad acts he had instruction to the evidence; (2) past. questions committed in the govern- were not closing argument, advising ment's own that it could not make conclusions based 10. The continued the cross-exam- prosecutor's questions on the but could evalu- ination of Officer Nicholson:
462
65,
Peyton
v. United
did
709 A.2d
74 n.
trial court
not abuse
(D.C.)
21
questioning
(grand
testimony
in
the
not
permitting
its discretion
was
because,
it
hearsay
Ms.
was not offered to
regarding
of Officer Nicholson
asserted,
prove
truth of the
adoption
ac
the
matter
but
Brown’s
of another witness’s
that an exculpatory
establish
lie was
testimony
count because
was not hears
the
oath),
cert.
grand jury,
told to the
under
ay.11
“If a
is not
statement
offered
denied,
854,
134,
119
142
asserted,
S.Ct.
the truth
matter
it
prove
is
(1998). The trial court did
L.Ed.2d 108
hearsay...
not
admission
not
[its]
[is]
permitting
not
in
the
abuse its discretion
part
an abuse of
on the
discretion
Moreover,
non-hearsay.12
as
testimony
v.
Burgess United
trial court.”
786
the
not abuse its- discretion
(D.C.2001) (citation
trial court did
561,
570
foot
was
questioning
in
the line of
omitted).
finding that
testimony
note
The officer’s
probative
not
than
prejudicial
more
that “Ms.
Wood said that”
not offered
—the
govern
to rehabilitate
questioning was
truth of
for the
what Ms. Wood said —that
witness,
witness,
Miss
ment’s
the other
she saw
stab the victim —but
mentioned,
Wood,
barely
govern
to show that Ms.
did not
Brown
make such
testimony
any
re
ment cut
additional
off
See, e.g., Taylor
statements.
witness,
govern
and the
garding
other
(D.C.)
451,
(holding
461
in
witness
ment
refer
the other
did not
that accusation that someone was a ‘snitch’
arguments.
its subsequent
hearsay
was not
it was not offered
truth,
for its
that
but to show
the accusa
Tape
911
IV.
cert,
made),
in
denied sub
tion was
fact
nom.,
Jones v.
852,
trial court
United
alleges
506
U.S.
155,
(1992);
admitting, over
113 S.Ct.
121 L.Ed.2d
105
abused its discretion
Q:
Q:
testimony
you
your
And
stop
when
testified on direct exami-
there.
it
You can
Is
report,
only thing
this
now
you
that
nation about what Ms. Brown said did
report,
from Ms.
George
is
Thomas’
independent
have an
recollection of that or
merely that
the same
Brown is
she stated
you
your
did
use a document to refresh
place?
occurrence of events took
memory?
A:
true.
That’s
gave
A: I read over
the notes that he
all
me
Q:
So,
fact,
said
Okay.
never
Ms. Brown
today...
the defendant
defendant —she saw
Q: Okay.
say
there
Does it
that Ms.
victim,
punch
correct?
is that
and kick
actually
Brown
said that the defendant-that
A:
correct...
That’s
punch
she observed the defendant
and kick
any
give,
did
nor at
11. The trial court
not
body
pro-
the victim in the face and
before
point
request,
limiting
instruc-
did
ducing
stabbing
knife and
the back.
tion.
Yeah, that’s
said.
A:
what the note
Q:
actually
The note said that she
used those
testimony violat-
Appellant’s
claim that the
words?
ed
fails because
the Confrontation Clause also
today,
I
she
A: That
read over
observed
hearsay.
the Su-
was not
In
statement
complainant
punched
kicked and
in the
preme
of the re-
Court's recent clarification
punched
back and
then stabbed-kicked
Clause,
quirements
of the Confrontation
the face
and stabbed
back.
also does not
Court noted that
Clause
"[t]he
Q:
true, officer,
report,
Isn't it
pur-
bar
of testimonial statements
the use
only thing
says
that it
the witness
establishing
poses
the truth
other than
took
stated
same occurrence
events
Washington,
v.
matter asserted..’’ Crawford
place,
only thing
1354,
that’s the
mention in this
36,-n.
1369
124 S.Ct.
U.S.
report.
entire
(emphasis add-
n.
158 L.Ed.2d
Street,
ed)
A: Yes. Yes. Wood-Ms. Wood said that
U.S.
(citing
Ms.
Tennessee
(1985)).
and Ms.
L.Ed.2d
Brown-
*12
States,
(D.C.
objection,
1216,
portion
a
of a 911 call in which
666 A.2d
1225-1226
caller,
Brown,
1995) (where
Ms.
man
stated “a
fact
complain
“[t]he
beating a woman in the alley” because the
misrepresented a fact to the
ant/declarant
declarant,
in
alley,
who was not
lacked police during the 911 call was relevant to a
personal knowledge of the statement.
determination of
sponta
whether it was a
testifying
“Just as
witnesses must have neous utterance”
be
but was harmless
personal knowledge
subject
of their
spontaneous
cause “the witness whose
ut
testimony, hearsay declarants must have
terance was at issue was available at trial
personal knowledge
they
of what
assert in
fully
by
and
cross-examined
defense coun
order for their declarations to be admissi-
sel, [a]ppellant obtained information” of
States,
Ginyard
ble.”
816 A.2d
discrepancy
“in time to seek corrective
21, Smith United
(citing
measures in the trial court and to use it to
(D.C.1990)).
583 A.2d
983-84
impeach
during
the witness
cross-examina
Assuming,
deciding,
without
tion” such that
opportuni
“the
had an
portion
admission
the contested
ty
complainant’s
to consider the
admitted
tape
discretion,
the 911
was an abuse of
fabrication in assessing
credibility”)
his
the error was nonetheless harmless under
(footnote omitted).
Kotteakos v. United
(1946).
extreme pain stabbing from both the as-
sault and the shod foot assault. sum,
In grounds we find no for reversal
in any appellant’s arguments appeal.
Accordingly, judgment appealed from
is B., In re KYA.
Affirmed. K.B., In re SCHWELB, Judge, Associate concurring: I concur in the judgment join Kye.B. In re opinion. Nevertheless,
court’s I continue to adhere to the I expressed views in my D.B., Appellant separate opinion in Daniels v. United 00-FS-1231, 00-FS-1230, No. (D.C.1992). A FS-1232. 00- proffer is a statement of counsel. A state- ment of counsel is not evidence. There- District of Appeals. Columbia Court of fore, proffer is not and cannot be “clear Argued Dec. 2003. and convincing evidence.” Sept. Decided explanation prosecutor’s that a prof- fer as to what the evidence will show is
itself clear and convincing evidence if it is
credited reminds dog me of a chasing its
own tail. Evidence is credited because it “convincing”;
is if it is not convincing, the
trier of fact will not believe it. Our cur- doctrine, hand,
rent on the other supposes (and too)
that a convincing clear
“if Maj. believed.” op. at 457 (quoting
Daniels, 347). 613 A.2d at Apparently, as very colleague able told me about anoth-
er joined court, case soon after I
“common nothing sense has to do it.” with
I opinion years ago, twelve decided,
when Daniels was that we should jurisprudence
conform our to Huddleston 681, 685, (1988),
S.Ct.