Bassil v. United States, 517 A.2d 714

Bassil v. United States

517 A.2d 714

D.C.

1986

Check Treatment

*1 BELSON, MACK, Before NEWMAN and Judges. *2 by police to the NEWMAN, Judge: Green was taken questioning. office for Fearful homicide for the that his conviction Bassil asserts by family, Bassil’s he denied retaliation second-degree of Rich- murder while armed person committed knowledge of the who intent to rob Petty and assault with ard However, more than one homicide. re- Green while armed must be James later, only his Green decided that week urges that the trial court de- versed. He off the safety getting in the killer was defense, present by nied his street; police that Bassil was he told the law, ruling, a matter of evidence of that as the killer. veracity reputation for truth and the bad was inadmissible.1 witness Bassil, appel- another cousin of Sheila ruling that the trial court’s conclude

We evening in lant, ques- on the testified that error but find constitutes constitutional tion, apartment her appellant had visited doubt; beyond a reasonable we harmless vicinity shortly the murder before affirm. murder, cigarette. and asked for a She any. Upon she had falsely denied that morning, she found her arising the next light most favorable to the Viewed its belonging knife cigarettes and a established that government, Wilkins, missing from boyfriend, were placed a knife at James Green’s reported of her bed. She the headboard attempting to him and that throat while rob police they to the when interro- these facts shortly thereafter Bassil stabbed Richard gated her. Specifically, Petty to death. the evidence sought to discredit the testi- The defense Petty had been showed that Green and suggest that mony of Sheila Bassil and years approximately friends for fifteen and up boy- for her lying was to cover she different they “always shacked huts and friend, Wilkins; suggested the defense words, together. they In other were cars” culprit. attempting In Wilkins was the real among people city. On homeless our so, called witnesses who to do the defense evening question, asleep Green was testimony Bassil’s contradicted Sheila Petty asleep in a hut was on a couch while of Wilkins on the the whereabouts about the hut. outside Green was awakened night and his access against pressure of a knife his throat prior in- testified to a Bassil, knew, knife. One witness rummag- and saw he whom by Bassil on statement made ing through consistent belongings as if look- Green’s himself also testified point; Wilkins ing something to steal. Bassil left the this point. on this pipe Sheila Bassil attempted hut. Green to find an iron and contradicted kept protec- a knife he to allow the defense the hut for The trial court refused so, doing Petty concerning reputation tion. As he was he heard to introduce call him. Green ran outside the hut reputation for truth and Bassil’s bad Sheila standing Petty, was saw Bassil over who veracity.

lying ground pool on the in a of blood. help. ran for He found two of Bas- II cousins and told them that Bassil sil’s male ruled, as a matter The trial court Petty. The three of them

had stabbed law, of the bad that evidence scene and the ar- returned to the awaited Bassil was veracity of Sheila for truth and police. rival of the (D.C.1984), as to the second plain 478 A.2d 644 that there was error in 1. He also contends contention. of certain evidence and that there the admission mandating Likewise, prosecutorial misconduct rever- pro to Bassil’s se we find no merit merit to either contention. See sal. We find no counsel. See ineffectiveness of tried claim of (D.C.1976), Washington, 362 A.2d 706 104 S.Ct. Watts v. United Strickland 2052, See Sherrod v. United as to the first contention. inadmissible. The does not III ruling contend legally that this correct A criminal defendant has a constitu ruling and concedes did not consti tional against confront witnesses — tute an exercise of trial Arsdall, court discretion.2 him. See Delaware v. Van U.S. -, ruling was error. McLean United L.Ed.2d (1986); Abel, States v. (D.C.1977); A.2d Teese v. (1984); L.Ed.2d 450 Huntingdon, 23 How. *3 Alaska, 308, 315, Davis v. 415 U.S. 94 S.Ct. (1859); States, App. Fletcher v. United 42 1105, 1109, 39 (1974); L.Ed.2d 347 Spring 53, (1914)(citing D.C. 67 v. Huntingdon, Teese States, 846, er v. 388 United A.2d 854 pra); White, United States v. 5 su Cranch, (D.C.1978). Supreme As the recently Court (Cir.Ct.D.C.1836); C.C. 38 Patriot stated: Coote, Cranch, (Cir. ic v. 3 Bank C.C. 169 We think that a criminal defendant Ct.D.C.1827). generally See 2 Wharton’s states a violation of the Confrontation (13th 1972); 471 Evidence § CRIMINAL by showing that prohibit- Clause he was 608(a). repeat prior We our Fed.R.Evid. ed engaging from appropri- otherwise holding; of bad designed ate cross-examination to show a veracity truth and is on admissible the is prototypical part form bias on of the of a credibility. sue of witness’ The discre witness, thereby the expose and “to to generally vested the court trial with jury the the from jurors facts which ... respect of admissibility appropriately could draw inferences re- against weighed must be the constitutional lating reliability the of to the witness.” rights of a defendant to confront witnesses Arsdall, supra, Van 106 at S.Ct. 1436 present and to a defense. See United Alaska, (quoting supra, Davis v. 239, Davis, (5th v. 639 States F.2d 244 1111.) 318, at 94 S.Ct. at Cir.1981). Thus, we must determine A criminal defendant has also the the whether error mandates reversal. evidence, right present to testimonial and United States contends the that test otherwise, right in his “The own defense. applied to be is of that nonconstitutional to testimony offer the witnesses and to error set forth in Kotteakos United attendance, compel necessary, if their is in 750, States, 1239, 328 plain fense_ U.S. 66 90 right present S.Ct. L.Ed. the to a terms de- (1946).3 right This is a ap 1557 Bassil fundamental ele- contends that the process Washington ment of law.” due propriate standard that of the constitu 14, 18, Texas, 1920, 388 87 U.S. Chapman tional error test of v. Califor 1922, nia, 87 S.Ct. L.Ed.2d (1967).4 below, As set forth we con times, right At the of confrontation clude that the error was of constitutional present the to a inter defense magnitude Chapman appro and that is the major sect. While cross-examination is the priate yardstick. vindicating means of the of confron- error, impossible 2. See Johnson v. United 398 A.2d it to conclude that substan- (D.C.1979) (“Failure Id., rights exercise choice a situ- tial were not affected.” at calling ation for choice is an abuse of discre- adopted 66 S.Ct. at 1248. We have Kottea- ignorance tion —whether the cause is right of the kos as our nonconstitutional harmless error test. intransigence— to exercise or choice mere See, e.g., Powell v. 455 A.2d United because assumes existence a rule (D.C.1982); Miller v. A.2d admits of but answer one (D.C.1982). presented") a federal constitutional error can be 4.“[B]efore assurance, say, one "[I]f fair after cannot harmless, must held the court be able to declare pondering happened stripping all that without beyond whole, belief that it was harmless a reason- the erroneous action from the that the Id., able doubt.” 386 U.S. at 87 S.Ct. at 828. judgment substantially swayed by was not Arsdall, supra, tation, beyond at error was reasonable Van harmless doing By not the exclusive means of Bassil an it is doubt. no means was Sheila example, may so. while a witness For or witness. At key essential cross-examination, impeached most, for bias to show testimony tended two impeached by he can also be so character (1) things: the defendant was evidence, conduct, conviction, prior etc. around vicinity killing some time Abel, supra, 105 S.Ct. at United States v. (2) murder, that he had time of long “upheld 465. Federal courts have use testimony to a knife. Her access Id. to show extrinsic evidence bias....” was corroborated as to defendant’s at a defendant seeks to 468-69. Whether murder presence vicinity of the at credibility of a wit- tarnish the point, second relevant time. On the or evi- by cross-examination direct of a possession saw knife dence, seeking thing: do the he is same immediately to the murder. On the prior jury the expose to the facts from point of Sheila’s testi- where corroboration jurors appropriately which could draw ... i.e., mony lacking, access to Wilkins’ *4 relating reliability of the inferences time, relevant his knife at the her Alaska, supra, v. witnesses.” Davis 415 credibility seriously already been un- had Thus, 1111. U.S. 94 S.Ct. at at wheth- by testimony and dermined Wilkins’ prohibiting testimony er the error in of a sum, In prior statement. the inconsistent reputation analyzed witness’ untruthful government’s fell on the case rose or testi- Compulsory under Process of the Clause mony of and the evidence which (or the Amendment Fourteenth Sixth substantially testimony. his corroborated process pro- due in state Amendment court part, played only a bit at Sheila Watson, ceedings), see States United v. most. (11th Cir.1982); United F.2d Affirmed. Davis, supra, States v. or under the Con- Clause, frontation we think the same test BELSON, Judge, concurring in determining applied should be the conse- result. quence of that error. court join opinion except I of the the term, Supreme In the the last Court de- exclusion holding for its that the erroneous applied termined the test where cross- of reputation Sheila of evidence of the bad guaranteed by the examination Confronta- was error of veracjty Bassil for truth and erroneously had been terminat- Clause Arsdall, supra, constitutional dimension. v. Delaware Van In of Chapman the Court ruled that the test right I constitutional think there is no supra, v. California, is the appropriate government by impeach a witness Chapman one.5 We hold that the test reputation veracity. of bad for truth appropriate also one where the trial submit, legislature, could enact law The I erroneously court denied a has defendant impeachment eliminating with- reputation challenge credibility of a Therefore, violating out the constitution.1 government with affirmative testi- witness view, my judge's error the trial mony reputation for un- of that witness’ nature, and our review non-constitutional truthfulness. should be under less for harmless error set forth Kotteakos v. stringent formula Application of the constitutional States, the leads us to harmless error test conclude fact, prelim- Advisory effectively In Committee’s so much 1. The Court thus overruled 608(a) inary allowed testi- holding Springer draft FED.R.EVID. v. United of of this court’s i.e., opinion reputation, mony only, as to per not supra, applied a as se reversible WEINSTEIN, credibility a witness. 3 J. to in limine limitations on certain standard EVIDENCE, ¶ 608[02] cross-examination. (1946) government rather than the test witness. Cf. Marcus v. Unit for constitutional error in Chap (D.C.1984). announced ed 476 A.2d v. California, result, man judge As a when a trial excludes (1967).2 17 L.Ed. Parks United reputation impeachment, the judge effec Cf. (D.C.1982) 451 A.2d 610 n. 37 any testimony tively concerning excludes (Kotteakos applied test where trial court government witness’ character impeachment excluded cumulative testimo truthfulness.

ny concerning investigator defense wit is, therefore, The whether the defendant). ness’ identification of Constitution mandates that defendant be states, majority correctly, by enabled to adduce some sort evidence of bringing out extrinsic of a wit- regarding witness’ character reputation, ness’ bad a defendant seeks to truthfulness, opinion whether it be evi- thing accomplish do the same he may reputation answer, dence or evidence. The cross-examination, viz., by think, to tarnish the negative. is in the Evidence an credibility aof witness. itBut opposing witness’ character for truthful- follow, necessarily not majority does as the quite ness seems removed from core conclude, would that the erroneous exclu- protected rights by the confrontation govern- sion of the extrinsic (cross-examination, evidence of the including clause ment witness’ for untruthful- bias), impeach by showing see is a Alaska, Sixth Amendment violation. Such 308, 315-16, Davis logic would lead to the conclusion that 1109-10, (1974), ev- S.Ct. ery erroneous exclusion of evidence bear- (sub- compulsory process clause *5 ing on credibility government aof wit- poena power and the of a defendant error, constitutional a defense). result that is to present a Washington See far-reaching unsupportable 14, 18-19, view of Texas, many credibility forms of impeachment 1922-1923, (1967). See, available. generally, McCoRmick Evi- can no There doubt that Constitu- (3rd 1984), 33-50 dence, regarding §§ requires given that a defendant be Moreover, impeachment. methods of ample call credi- means to into dealing with testimony concern- However, bility government aof witness. ing veracity, dealing character we are effective, light other the existence of one of the least reliable methods of probably superior, credibility methods credibility impeachment. See Michelson v. impeachment, inappropri- I submit that ate to constitutionalize defendant’s 213, 219, 220, testify concerning call witnesses to recognize that, jurisdiction, in this government a for truth- witness’ character when defendant calls witness to testi- fulness.

fy concerning witness’ char- truthfulness,

acter for the defendant is lim- adducing testimony concerning

ited reputation for witness’ truth-

fulness, adducing testimony rather than expresses impeaching witness’ opinion of

own the truthfulness of the opinion majority 2. Those are set tests forth at footnotes 3 and