*1 nation,” upon we see no basis which the
trial court’s control over the introduction expert testimony expanded can be
the extent that respondent argues here:
the exclusion of a report that the statute
expressly states is admissible. We con-
clude that it would be an abuse discre-
tion for the trial to exclude
evidence of the DEA drug testing simply
because the pretrial chemist conditions the presence
interview on the government
counsel. suppressing order evidence of the
DEA tests is vacated and the case is re-
manded for further proceedings consistent opinion.
with this
So ordered. BROWN, Appellant,
Latasha STATES, Appellee.
UNITED
No. 99-CM-241.
District of Columbia Court of Appeals.
Argued July 2000.
Decided Dec.
Frankfurt, Berman, De- Jeffrey S. Public Service, appel- fender were on brief for lant. Sulzbach,
Patricia Assistant United with Wilma A. Attorney, States whom Lewis, Attorney, and United States John III, McLeese, Roy R. Fisher and Assistant Attorneys, were on the brief United States appellee. SCHWELB, Judge, Associate Before KING, Judges. and BELSON and Senior BELSON, Judge: Senior Latasha was found Appellant Brown non-jury in a trial of one count of guilty Appellant simple argues assault.1 in trial court committed reversible limiting police her cross-examination of a who part officer took the arrest appel- precluding redirect examination of only and af- disagree lant’s witness. We firm.
I.
the evening
On
of November
telephoned
police
Steven Williams
requested
picking up
his chil-
assistance
Street, Southeast, where
dren from 1641V
aunt,
Brown,
Latasha
re-
appellant
their
re-
had been
sided. Williams
issued
him from
straining order which barred
contact with the mother of his children.
avoid
help
police
He asked for
of the
up
picking
any possible confrontation when
children,
Of-
custody.
whom he had
Mars-
Joseph
and Arleen
ficers
Cabillo
him.
responded
ham-West
assist
While Williams remained outside
resided,
building
appellant
apartment door and
police
on the
knocked
occupants.
to the
identified themselves
building
Appellant
apartment
exited
and walked toward Williams. She
boisterous,
fussing and
“very loud and
Despite
at
several
cursing
[Williams].”
calm
Lanoff,
police
officers to
requests
Public Defender Ser-
Jennifer
Klein,
down,
at
vice,
appellant continued to curse
Jackie
whom James
(1996
§
Repl.).
D.C.Code
Williams and refused to go
court,
back into her
sound discretion of the trial
and we
apartment. Appellant swung at Officer will
only
reverse
on a
showing of
abuse
Cabillo with a closed fist when he attempt-
of that discretion.” Deneal v. United
ed to
(D.C.1988)
arrest her for disorderly
(ci-
conduct.
He was able to avoid being
omitted);
struck
tations
Jones v. United
*3
ducking down. Appellant’s
513,
(D.C.1986)
sister
516 A.2d
(holding the
jumped on
pre-
Officer Cabillo’s back to
extent of cross examination is within the
vent him from handcuffing appellant.
court).
Of-
sound discretion of
trial
“[W]e
ficer Marsham-West subdued appellant’s
inquiry
limit our
to whether
the trial
sister. Officer Cabillo was then able to
court’s decision was fair and rational.”
appellant
handcuff
and arrest her.
Taylor, supra,
II. standard, Applying the above we find no abuse of discretion in the trial Appellant first contends that the trial court’s evidentiary ruling. It important court in limiting erred the cross-examina- to observe that the trial court did not tion of Officer Cabillo regarding whether preclude “an entire line of relevant cross- complied he with proper police procedure examination” as claimed by appellant. after an police assault on a Appel- officer. The trial court instructed defense counsel (1) lant explore wished to three matters: question he could not Officer Cabillo paperwork extent of that Officer Cabil- “generally [about] what his understandings completed (2) lo incident; following the are regulations of the generally what whether the officer interviewed wit- police time, practice is.” But at the same (3) arrest; nesses after the and the offi- the court permitted counsel to establish familiarity cer’s with Metropolitan Police through Officer Cabillo that he did not Department (“MPD General Order 701.3 interview Orders”) any witnesses and advised coun General regarding police proce- sel that he question could Officer Cabillo dures handling police assaults on offi- any paperwork further about completed he cers. According counsel, to defense case, relative to the a matter he had al purpose of such questioning was to estab- ready (a objection. covered without lish bias matter appeal) not raised on permitted court also questions the same and to call into the credibility of be asked of Officer Marsham-West. the arresting court, officer. Before this appellant asserts that Officer Cabillo failed States, In Greer v. United 697 A.2d “to locate and take statements from all 1207, (D.C.1997), we ruled that de- witnesses to an assault police on a officer” fense may permissibly adduce evi- required by general order and this dence police conducted investi- failure reflected on credibility the officer’s gation in a manner departed from and was “evidence that the assault never procedures. standard But we did not indi- took place.” cate in Greer that such evidence must al-
An evidentiary ruling admitted, ways and declined to rule whether, court is reviewed for abuse of case, discretion. in the circumstances of that This court will set aside an exercise of trial the curtailment of cross-examination was “only upon discretion showing an abuse of discretion. Id. at 1212. De- grave States, Taylor abuse.” v. United argued fense counsel at trial that the offi- 636, (D.C.1995) 661 A.2d (quoting Irick procedures cer’s “failure to follow certain 26, v. United ... goes credibility to his and bias as to 1989)); Irving see v. United 673 whether or not this incident even took A.2d Accordingly, place.” The court determined that this regard cross-examination, “the ex line questioning tangential, was “too too tent remote,” of that examination is within the probative and was not as to ance, new appellant actually qualification committed the substan-
whether
impeachment matters elicited
ruling
This
with-
tive facts or
evidentiary
assault.
by the
1 McCoRmick on
of the trial
and will
cross-examiner.”
the discretion
(John
Strong
§
at 119-20
W.
Price v.
be overturned.
Evidence
Cf.
omitted).
ed.1999) (citations
(D.C.1997)
ed.,
(ruling
5th
trial court did not abuse its discretion
pur
of the nature and
view
rejecting
effort to
offi-
establish
examination,
pose of redirect
there
no
credibility by
cer’s
and lack of
show-
bias
right to
in it.
It
engage
absolute
cannot
ing
complete
forms
failed
two
used
to revisit all
matters covered
funds).
required for use of confidential
preceding
This
cross-examination.
cross-examination,
differentiates it from
*4
III.
of
which can be
as a matter
undertaken
contention
Appellant’s second
right concerning
subjects
all the
covered
pre-
trial
its
by
court abused
discretion
examination,
preceding
well
direct
of
cluding
appellant’s
redirect examination
credibility.2
affecting
as matters
See
witness,
only
Troy Harris. After counsel
States,
274,
Grayton v. United
745 A.2d
government completed
for the
his cross-
(D.C.2000);
279-281
Jones v. United
Harris,
examination of
he stated that he
States,
513,
(D.C.1986); 1
A.2d
516
517
judge
further
questions.
no
trial
19,
88,
32,
§
supra, §
McCormick,
at
at
you.
may step
“Thank
You
said
hand,
can
119. On the
there
be said
other
thereafter,
Immediately
down .”
a right
provided
to be
to redirect
counsel
“Actually,
said
I have a brief redi-
proposes
deal
which first
to
with matters
rect,
honor,”
point
at which
trial
your
up
came
1
cross-examination. See
your
Step
said “call
next witness.
32,
§
supra,
McCormick,
at 119. Such
your
Appel-
down.
next witness.”
Call
a
to
giving
right
matters
rise to
redirect
attempt
trial
make
lant’s
counsel did not
to
a
range, including
cover
factual mat
broad
concerning the
proffer
nature
direct,
brought up on
see
ters not
Johnson
he
redirect examination wished to conduct.
States,
516,
(D.C.
v.
A.2d
518
United
298
Appellant
on
asserts for the first
time
1972),
undermining the credi
and evidence
appeal that
of
redirect
neces-
witness,
Stitely v.
bility of the
see
United
sary
credibility
in order to rehabilitate his
(D.C.1948).
491,
A.2d
492
See
61
by
for
“clarifying Mr. Harris’s reasons
Minihan,
1208,
Mo.
also
v.
355
Johnson
court,
testifying,
coming to
his motives
(error
(1947)
to exclude
H41 United, States, A.2d other examining about some matter cov- 1985), it ered in which might would have error to exclude cross-examination or all might proper redirect provided unless counsel unable to not have basis for provide any Therefore, basis for redirect. redirect. As a result defense counsel’s counsel, it upon was incumbent when he failure the record af- proffer, to make a proceed make, wished to with redirect evaluating fords no whether Har- basis for make, attempt proffer of the testi responses dealing ris’ with his questions mony expected, explaining to the motivation for testifying would have been request the basis of his for redirect likely finding to affect the trial court’s Jones, supra, examination. 516 A.2d at guilt. Cf. (defendant preserve failed to claim however, conclude, We cannot proffer error because insufficient for proffer defense’s failure to make burdens court). review “[Although confronting it requirement with the of establishing after may risky he has ruled prevail appeal error in order to business, defense counsel should have considering without first whether the trial proffered testimony expected to judge’s conduct that he demonstrated “was Walker, elicit.” United States 146 manifestly unwilling proffer entertain a *5 95, 99, U.S.App.D.C. 1171, 1175 449 F.2d evidence, contrary of relevant to his re- (1971). we in As stated McBride v. Unit McBride, sponsibility.” supra, 441 A.2d at ed (D.C.1982), 656 record, Having the trial considered “[w]hen trial balks admitting at judge we conclude that trial the did not evidence, certain normally counsel should unwillingness. exhibit such an make an offer proof.” of on We went stated, As we thing have first observe jurisdiction that this has consis trial judge government said after counsel tently adhered to the following principle: questions stated he had no further A ruling of the court that a “Thank you. step You Im- may down.” propounded by party to his own wit- thereafter, mediately defense counsel said ness should not be answered must be redirect, “Actually, I your have a brief by an testimony followed offer honor,” upon which the trial judge said expected, by something that would your “call Step next down. witness. Call it, clearly indicate it is desired to if your next witness.” reserve the point review by the court. for The judge’s trial initial statement Id. (quoting McCurley v. National Sav down,” you. step “Thank may You was a ings Co., 10, 12, & Trust App.D.C. routine and perfunctory statement that tri- 154, 156 (1919) added)). F. (emphasis judges appears al it commonly make when While prof- failure of counsel make a that a witness finished his or has her may fer if excused thrust of the be, testimony. It cannot taken to testimony excluded had been appar- made itself, any the court indication that would before, id., ent what gone had see in proffer regarding proposed not entertain a this case there was no indication of the redirect. questions pre- defense counsel would have Harris, sented to much less the The trial to the judge’s response answers defense questions produced. those would have counsel’s statement that subsequent We he agree cannot suggestion dissent’s had a brief redirect —that the witness that apparent it was that step “defense counsel should down and counsel should attempt would imputa- inappropriate. to counteract call his next witness—was (Dissent 4). p. tion of at sought bias.” 1145 & n. The should or at least have Defense well regarded proffer regarding counsel could have awaited a redirect. But circumstances, we agree bias cross-examination as so routine under the cannot that he would been have more interested conduct showed that he prevented proffer by á either coun- a never manifestly unwilling entertain sel, per- nor admonish counsel for
proffer. The circumstances here are to be
did he
McBride,
in
supra,
argue
Having
those
efforts to
law.
contrasted with
sistent
record,
objection
to a
trial
where the court sustained
reviewed the entire
we con-
line of
and then refused
did
cross-examination
clude that the trial
not indicate
to make an offer of
request
unwillingness
counsel’s
to en-
to counsel a manifest
proof.
redirect.
proffer regarding
tertain a
did not state that
counsel
As defense
failed
accept
proffer,
would
either after
of denial of redirect
preserve the issue
any
Harris’
or at
other
cross-examination
plain
for
timely proffer, we review
error.
The record
no
point in the trial.
contains
(be
McBride,
While the trial showed others, in rever- jurisdiction, In this interest to both counsel his statements rare. exceedingly are plain for error along expedition, with sals moving the trial H43 prevail upon ground ty orderly jus- order to a not administration of court, properly preserved in the trial tice. criminal defendant must show both that however, ought forget, We not to that it i.e., “plain,” the trial error was is the defendant and not attor his or her “obvious,” and that miscarriage a clear ney likely go prison who is when the See,
justice
e.g.,
resulted.
United
v.
States
plain
precludes plenary ap
error doctrine
Olano,
725, 732,
1770,
U.S.
113
507
S.Ct.
pellate
might
consideration of what
other
(1993);
Call witness.2 the, response judge’s or- fense counsel’s record, step der the down—“Actual- holds, witness majority The on this that a redirect” —was at least required ly, I have brief attorney Ms. Brown’s was keeping the period transcript in with the obvious fact that Although 2. there more is commands, judge, giving orders which speaker, at the conclusion of each these obey. obliged witness were points be counsel the I that exclamation would believe objection My in at 1141. col- arguably garding all but name.3 redirect.” Id. Although attorney Ms. Brown’s did not recognize thus the leagues present precise argument at trial the because, erred, they but affirm in their namely, now that he wished to view, plain applies. standard As the error makes— “dispel” the bias evidence adduced the noted, however, I previously disagree government on cross-examination —he had majority’s plain the identification of error so,4 very little opportunity to do and he proper the of review. standard proffer proposed could have made a whether, remaining question The as- only by disregarding redirect examination suming point properly pre- judge’s repeated insistence that Mr. served, step down judge’s prejudicial and that counsel call his error was my opinion, See, next witness. In we cannot e.g., harmless. Kotteakos v. United fairly say attorney that Ms. Brown’s failed States, 750, 765, 328 U.S. 66 S.Ct. anything to do that a reasonably compe- (1946) (articulating L.Ed. 1557 harmless attorney tent would have done under the standard). view, my rather this is same circumstances.5 Nevertheless, balance, a close call. I on vote to reverse Ms. Brown’s conviction.
III. fact, perspective From the of the trier of All members of evidently the division dispositive question this case was: agree that judge’s per- the trial refusal to Who should be believed? If Mr. Harris mit redirect examination was erroneous. telling the truth regarding Ms. majority'expressly As the acknowledges, part affray Brown’s with Officer “there can be said to be a right to redirect Cabillo, guilty then Ms. Brown was not provided proposes to deal with Indeed, ought to have acquitted. up matters first came in cross-exam- if even was unsure where the Maj. Further, op. ination.” at 1140. lay truth but entertained reasonable quote majority, trial judge’s “[t]he re- police doubt version of regarding sponse to the defense counsel’s ... state- encounter, required he was to find the ment that had a [counsel] brief redirect— guilty. impera- defendant not It was thus step witness should down and that fully tive that the trier of fact make a counsel should call his next witness-was inappropriate. credibility informed assessment of the should have witness, sought proffer or at least Troy awaited a re- the sole defense Harris. 3. If "Objection, proffer expected counsel had said: I have a we stated that a of a witness’ redirect,” application brief of the implausible. testimony ordinarily required where the surely error standard would objection has sustained an to a I do not believe that counsel’s failure to use particular question inquiry. or line of "objection” change the word should result materially A.2d at That differs 656. situation import object when the of his words was to here, presented from the for in this case one judge's directive. judge precluded asking any counsel from Moreover, redirect examination. Moreover, given prosecu- the content of the Harris, proffer by defense counsel McBride tor’s cross-examination of Mr. it could reasonably anticipated that defense coun- would not have constituted disobedience of attempt imputa- directives; sel would to counteract the the witness had not *9 tion of bias. We have held that where the "step and counsel had not been told to down” proposed questioning line of on redirect ex- call his next witness. Even been ordered to apparent, proffer required. amination is no is so, recognized in that ”[t]he we McBride 644, See McBride v. United proffer . have enforced the re- courts .. 656-57 fashion,” id., rigid quirement in a and we rejected government’s the claim by majority 5. None of the cases cited the applied. 655. standard should be Id. at requiring proffer counsel to make a involved provides support for McBride therefore scant comparable presented circumstances to those McBride, 3, supra example, government’s position. here. In note for the
1146 Mr.,
But the
not make
an
not be
could
such
Harris’ truthfulness could
a
fully
until
informed one
Ms. Brown’s coun-
informed assessment on the truncated rec-
cross-examination,
opportunity
sel
him.
had an
to
the
ord before
On
witness on the matters raised
cross.
depict
had
Har-
prosecutor
sought
Mr.
As the record stood when the
found
partisan
as a biased
a
ris
witness—as
who
prosecution
Ms. Brown
guilty,
had
wanted Ms. Brown to win and who would
permitted
been
Mr.
interrogate
be
willing
therefore
to lie
order to save
bias, but the de-
relating
on issues
to his
response,
her.
the defense was entitled
fense had not.
show,
attempt
on redirect examina-
tion,
regardless
friendship
of his
with
great
a
Redirect examination can make
sister,
and
Ms. Brown
her
Mr. Harris was
Wig-
deal of difference. One
Professor
of
a man who told the truth. The determina- more’s
illustrations tells the tale.6
colorful
whether Mr. Harris was credible
tion
apply Judge
If we
Irving
were
well turn
redi-
could
on his demeanor on
Goldberg’s tongue-in-cheek test for harm-
confronting
error,7
examination
im-
rect
when
less
Ms. Brown
win
would
a
and,
cakewalk,
implicit-
of
putation
partisanship, bias
for the error was not minuscule
mendacity.
ly,
proof
guilt
hardly gargan-
The
assessment of
and the
of
though
very pain-
whole
6. Maurice
The Old Munster Circuit
matter were
Healy,
Esq.,
(1939):
X,”
him,
asked,
Only one art is more difficult
you
ful
"Mrs.
"were
he
is,
cross-examination];
art of
[than
your
In the
love with
husband?”
cir-
object
re-examination. Herein
cumstances,
possi-
no answer but one was
advocate
to overcome the effect of a
object
ble,
lay
therein
and
skill of
advocate.
destructive
This
cross-examination.
was,”
replied,
faintly.
"I
she
Carson
miracle;
you
per-
attained
if
a
can’t
moment;
jury for
looked at the
a
lift-
them, you
your
form
had much better allow
ing
gently:
eyes towards
asked
his
her he
go
witness to
the box
further
out of
without
things
"Is
one of
about
there
these
question.
I once heard Sir Edward Carson
you
my
you
friend has
asked
which
regret?”
perform
country,
that miracle in this
short-
again, only
answer
Once
one
ly
griev-
after the
client had
war. His
"No,”
possible.
replied.
she
Carson
defamed;
ously
justi-
the defendants had
moment,
paused
appeared
for
he
be
fied, and in
furtherance
their defense
X,”
said,
thinking.
oppor-
"Mrs.
he
"if the
endeavoured
that he
some-
to shew
again
you
tunity
today,
arose
would
adventurer,
thing
living
upon
entirely
of an
proud
happy
again?”
and
to do it all
"I
his wife’s fortune. Carson’s case was that
would,”
cried,
she
lifted
her advocate to
every
there is
difference in the world be-
X,”
"Thank-ye,
said
enthusiasm.
son,
Mrs.
Car-
exploits
his
tween
man who
rich wife
gave
jury
down. The
his client
sat
who, having
man
and the
married a rich
£5000,
questions
and it was those three
wife,
help
plaintiff
allows
him.
her to
verdict.
won the
very severely;
had been handled
his wife
Wigmore
6 John H.
Wigmore,
on Evidence
was asked on the threshold
the cross-
1896,
(Chadbourn
ed.1976).
§
at 739-40
rev.
your
examination: “When did
husband last
may
It
as Sir Ed-
be that
"miracle” such
day's
do a
work?” and she
to answer
would not
been forthcom-
ward Carson’s
have
began
didn’t
Then
that she
know.
a terrific
case,
ing
but able counsel
Ms.
wearing
in this
bombardment.
“Your husband is
coat;
might well have
to use redi-
very
Brown
been able
handsome astrachan
where did
get
gave
paid
"I
rect
that there was a
it?”
it to him.” "Who
examination
show
Royce you
guilt.
for the Rolls
arrived in this
of his client’s
reasonable doubt
morning?”
money
"How much
"I did.”
into error
The infusion
"harmlessness”
put
purchase
your
did he
towards
exception,
must be the
doctrine
country?” "Nothing.”
mansion in the
And
employed.
sparingly
A minuscule
must
on, through minute
of all
so
examination
guilt,
gargantuan
coalesce
error must
expenses
daily
couple.
of the married
imagi-
displays
where the accused
even
Cross-examining counsel sat down with a
Pantagruelian dimensions.
nation of
very
expression.
slowly
satisfied
Carson
1240,
Chapman
F.2d
v. United
up
long,
body,
lifted
lean
smoothed his
denied,
(5th Cir.),
U.S.
cert.
melancholy
gown,
face to-
silk
turned his
(1977);
S.Ct.
tional standard enunciated 1239, I
supra,
cannot “with fair after
dering happened stripping all that without whole,
the erroneous action from the judgment substantially swayed was not
by the error.” I would therefore reverse
Ms. Brown’s conviction. KLOCK, Appellant,
Robert Ollie COMPANY,
MILLER & LONG al., Appellees.
et
No. 99-CV-1135. Appeals.
District of Columbia Court of
Argued Oct. 2000.
Decided Dec.