*1
463
(1978);
States,
Marshall
D.C.App.,
v. United
We conclude that the trial court erred
805,
(1975);
A.2d
Curley v. United
denying
judgment
acquit-
the motion
States,
389, 392-93,
81 U.S.App.D.C.
appeal
Accordingly,
judgment
tal.
denied,
837,
cert.
331 U.S.
Reversed.
1511,
(1947). Thus,
S.Ct.
United
D.C.App.,
(1981) States, citing Moore v. United D.C.
App.,
(1978).
In the charge instant
receiving stolen property required proof of
the following elements:
(1) received, the property (2) was Q. JOHNS, Appellant, Malissa that at the time of receipt proper- its stolen, ty (3) was that the individual re- v. ceiving property guilty had knowl- STATES, Appellee. UNITED edge stolen, it was (4) that he had a receiving fraudulent intent No. 79-310. property. States, Brown v. United D.C. App., 304 (1973). A.2d 21 v. Appeals. District of Court of [Charles Columbia States, United D.C.App., 371 A.2d Argued Nov. 1980. (1977).]
Moreover, Aug. Decided property stolen had some real value to the owner must also be States,
shown. Jones D.C.App., United
345 A.2d (1975).
Viewing the light
most favorable to government,5 as we do, required
are opinion we are of the
that the trial court granted should have judgment
motion for acquittal. It
clear from the record that the established that in pos
session of tags reported as stolen. At no
point in proceedings did the
attempt to link particular
tags missing from complainant’s motor
bike. The tags were not put evidence.
No evidence of kind was introduced as
to the number on the tags license seized
from appellant, and there no testimony tags these were the same as those
belonging to the complainant. Neither did introduce evidence as to tags value of the they were States,
current. See Jones v. United
at 145. denied, 309, 312, rehearing States, App.,
5. Calhoun v. United 320 A.2d Crawley (1977); A.2d 608 D.C. *2 D.C., Dale, ap- Washington, Nicholas D. court, appellant. pointed Amidon, Atty., Robert Asst. U.S. Bruce D.C., Charles F.C. Washington, with whom Ruff, Terry Thomas Atty., John A. U.S. Tourish, Jr., Attys., Wash- Asst. J. U.S. brief, D.C., appellee. were on the ington, PRYOR, MACK, FERREN, and Before Judges. Associate FERREN, Judge: Associate Q. Malissa appellant, A convicted Johns, for second-de- had been indicted who armed, of the lesser-in- gree murder while manslaughter voluntary cluded offense 22-2405, D.C. Code §§ while armed. two appeal presents principal -3202. Her questions. jurisdic- impression
One of first erred in the trial court tion: whether stand, to take the appellant were self-defense, witnesses and call assert victim's testify about the deceased al- character, would be lowed cross-examine danger- with a for assault own 1971 arrest had ex- she weapon, though even ous pressly put good her own presented character in issue. The defense evidence that apartment hold that when a gone defendant claims self- deceased had where door, staying, banged puts defense and on evidence of the de- “going said he was to kill that bitch.” ceased victim’s violent the de- Appellant’s father testified that she had fendant does not thereby open the door to *3 arrest, police, told the before her that she prosecution evidence of her own character had stabbed the deceased after he had at- for violence. The trial ruling court’s in the her life. tacked her and had threatened present case therefore was erroneous. Appellant’s aunt that she had no- testified question The second is whether the trial ticed face neck a appellant’s bruises on court abused its ruling discretion in that the stabbing.1 few hours after the defense could not grand jury introduce tes- to recognition of the defense (from timony an earlier proceeding against present bearing question evidence deceased) by two witnesses who had appellant whether was Simmons identified the deceased as a murderer. We likely aggressor, per- more the trial court conclude that because grand jury testi- appellant mitted to introduce some evidence mony competent, relevant, and not ex- per- of Simmons’ third violent acts toward cludible on evidentiary policy grounds, the evidence, sons on for ex- other occasions— trial court abused its discretion in excluding ample, punched that Simmons had various it from the trial. court, however, women. The would not Accordingly, we reverse and remand for a permit grand jury the defense to introduce new trial. testimony by who had identi- persons two
fied Simmons 1973 as the murderer another individual in a case where homicide I. charges eventually dropped. had been Be- 21, 1978, On January Tyrone E. Simmons cause one of these witnesses had recanted died from one five-inch stab wound part story of his and the had failed to chest. On the day, same appellant went appeared, attend a lineup which Simmons with her father police to Sixth District grand court concluded that their headquarters and stabbing admitted Sim- insufficiently reliable for ad- mons. Appellant was immediately arrest- present mission into the case. The court ed, rights, advised of her strip-searched. ruled, moreover, appellant that if elected to Police then took her upstairs to the detec- herself and also called witnesses tive’s room where she told them she had acts, testify about other violent Simmons’ stabbed Simmons in self-defense. government introduce evidence of appellant’s Specifi- own violent character. government’s primari- case consisted cally, permitted would be ly of police-officer testimony appellant to cross-examine about her 1971 had admitted stabbing, coupled with assaulting twelve-year-old girl arrest for testimony by companions that he testify. Appellant with a bottle. did not had entered appellant’s apartment building, intending to look for his stolen television The trial court denied defense motions apartment, set in her and had come out a acquittal at the end of judgment few minutes later with the fatal wound. government’s case and at the conclusion The trial court permit would not defense convicted trial. The counsel to elicit on cross-examination of the manslaughter while armed. The voluntary police appellant, officers that after admit- for three prison court sentenced her to ting stabbing, suspended had told them she had execution of sen- years nine but super- acted in years’ self-defense. on four placed tence and her strip 1. The officer who had conducted the injuries search testified that she had seen no appellant’s body. whether she ap- question there her probation. Appellant
vised
noted
Counsel
taking
the stand?”
going
peal.
“No,
Honor.”
replied,
Your
II.
announced
counsel
day,
The next
appellant’s
to the stand
question
would call
In order
to resolve the
she
Johns,
brother,
had been
who
appellant’s effort
bolster
Cecil
in-
Counsel
witness.
through
claim
of self-defense
use
that she intended
character
formed the court
deceased victim’s violent
as
witness ...
present
Johns
permit
Mr.
should
“[a]
point,
At
we
of her
deceased.”
earlier
ruling,
(A)
brought up
trial
must consider
court’s
—raised
pre-
appellant’s
(B)
appel
relationship
—whether
*4
violent
(C) the
of evidence of Simmons’
testify,
to
sentation
lant’s decision not
the
for
open the door
per
this
character would
evidentiary policies pertinent
to
evidence
introduce similar
that
the
to
plexing question.
government
We conclude
appellant.
appellant
about
ruling
trial court erred in
if
the
to
testified and called other witnesses
counsel,
with
a
discussion
lengthy
After
character,
the
deceased
violent
victim’s
took the
appellant
if
court ruled that
the
appellant
government
cross-examine
could
defense,
about
testified
in her own
stand
prior
arrest
assault.
about her
for
character,
did
call
but
not
violent
Simmons’
puts
expressly
hold that unless a defendant
Simmons’
testify
to
about
other witnesses
issue,
good
her
in
her intro
own
character
violence,
government
acts of
earlier
victim’s
duction of evidence of
deceased
toas
to cross-examine
would
be allowed
support
character
her claim of
to
acts;
appellant
if
prior violent
but
her own
permit
prosecution
does
self-defense
about
evidence
and also introduced
testified
to offer
defend
similar evidence about the
witness-
through other
character
ant. We further
that the error in
conclude
a certain dis-
es,
government
“go
this case was not harmless.
appellant’s
on evidence
putting
tance”
Specifically,
trial,
violent character.3
A. Twice
counsel
own
before
“open[ed] up
to
if the defense
told
court
intended
court ruled that
appellant
oth-
through
trial,
aggressiveness
testify.
opening
At
in her
statement
witnesses,”
government
would
her
jury,
implied
defense counsel
er
appellant about
to cross-examine
client would
claim self-defense.2
allowed
testify and
assaulting a twelve-
during
1971 arrest
day
on the
of trial
her
Later
court, however,
re-
conference,
girl.4 The
inquired,
year-old
the court
“Is
bench
stand, I
right
take the
has the
to
stand. She
am not
go-
you
2.
are
And
[DEFENSE COUNSEL]:
precluding
she takes
When
that.
ing
they
hear
were at
to
evidence
while
testify anything
stand,
to
has the
to
she
picked up
a lad-
930 T Street Mr. Simmons
der,
relevant,
testimony
as to
and her
whichis
aggressiveness
and he
it at Miss Johns. Miss
threw
relevant,
so
deceased
pounds.
five
Johns is
foot two and 110
any rights
taking away
she
which
I am not
has. But she doesn’t
You will
Miss Johns
hear evidence that
constitutional
thing
did the
defended herself. She
testify
bringing
right
as to the
and
witnesses
other
she could.
aggressivequalitiesof the deceased
pos-
court
The trial
was concerned about
bringing
preclude
from
the Government
dissuading
sibility
appellant
improperly
from
regarding
past
as to
her
acts
like
evidence
testifying
By allowing
in her
defense.
aggressive-
indicate
which would
violence
(but
testify
appellant
only appellant)
as to
ness.
opening
without
Simmons’ violent character
government
simi-
to introduce
Hon-
the door for
And so Your
COUNSEL]:
4.[DEFENSE
concerning appellant,
bring
lar evidence
“attempted]
[Sim-
that is if she does
or’s
through
between
strike some balance”
other
past acts of violence]
mons’
witnesses,
permit
the interests at
The court stated:
stake.
will
Your Honor
spe-
her about
doing
cross-examine
reason I
because
do
Government
am
[T]he
they
prior
claim—
might
taking
acts that
preclude
cific
bad
otherwise
from
judgment
subject
reputation
served
es on the
re-
of Simmons’
quest to
complaining
call the
witness
acts of violence. Election of
incident,
necessary,
to rebut
option,
open the door
would
on cross-examina-
to cross-examine
tion. The court was
to the view
inclined
(3)
about
could call
her 1971 arrest.
She
that such
“pre-
rebuttal
would be
testify
about Simmons’
witnesses to
case,”
cluded
Lloyd
which limits
This
herself.
al-
but not
testimony in rebuttal of a defense character
ternative would
preclude
witness to testimony
general reputa-
introducing
appellant’s
from
(in
tion
contrast
specific
with evidence of
1971 arrest.
incidents,
arrest).
such as the 1971
ap-
indicates that
course of the trial
Lloyd
pellant
option. Although
elected this third
(as
the defense
call Cecil Johns
did not
response
court,
to an inquiry from the
originally proposed)
testify about
Sim-
stated that
it had no evi-
ultimately
mons’
called
counsel
dence,
arrest,
other than the 1971
concern-
purpose.
Wayne Hartzell for that
Hartzell
ing the
propensity
defendant’s
for violence.
punch
testified
seen
that he had
Simmons
Accordingly, the
rulings implicitly
court’s
women, including appellant,
various
on sev-
conveyed a third
message
defense coun-
eral occasions.
counsel also at-
Defense
if appellant
sel:
testify,
chose not to
she
*5
unsuccessfully,
tempted,
to have Hartzell
could
testimony by
introduce
others as to
testify
(bad) reputation in
as to Simmons’
Simmons’ violent character without
risk
Appel-
13 infra.
community.
note
government
that
attack
could
her own
Consequently,
lant
testify.
did not
character through the 1971 arrest or other-
government
opportunity
an
did not have
to
wise;
for even if third-party testimony
introduce
her own violent char-
evidence of
about Simmons’
character properly
violent
acter,
arrest.
namely the 1971
serve,
contended,
could
as
government
relationship
B.
turn
between
permit
to
rebuttal
appel-
evidence about
appellant’s
the trial
and
deci-
ruling
court’s
character,
lant’s
(in
government
the tri-
testify.5
sion not to
al court’s view) would be limited to rebuttal
general reputation
with
evidence —evidence
strong that
implication
appellant
government
which the
acknowledged it did
changed
testifying because
her mind about
not have.
third-party
wit-
ruling
of the court’s
reputation
prior
nesses
and
court,
to
therefore,
The trial
gave
effect
open
acts of
the door to
appellant
(1)
violence would
three choices:
She could testi-
her own 1971 ar-
fy as to her
cross-examination about
knowledge
own
of Simmons’
persuasive
for
do not find
rest
assault. We
character.
If she called no other
that the causal
government’s argument
witnesses on
subject,
government
this
ruling
and
relationship
would not
court’s
be allowed to introduce
between
testify
her
amounts
reputation
prior
appellant’s
own
not to
or
acts of
decision
vio-
(in
govern-
arrest).
(2)
“speculative hindsight.”
lence
this
the 1971
to
She
testify
to frame
urged
herself
call other
trial court
and
witness- ment itself
prosecu-
THE
connec-
COURT: The one that
lack
sufficient causal
harmless for
[the
testify (or
any
tor] mentioned.
to
for
tion to the decision not
permit
reason). Here,
[DEFENSE
Will
COUNSEL]:
we reverse the
harmlessness,
Government to cross-examine her about that
analysis
based
order of
because
incident,
right?
is that
connection, could be
on absence of a causal
your
THE COURT: Yes. What’s
move?
colleague
dissenting
our
determinative —as
your
Who is
next witness?
thus,
judicial
interest of
in the
concludes —and
Instead I think I
[DEFENSE COUNSEL]:
analysis
economy,
of a
need for
obviate the
will call Ms. Aluveiler Johnson next.
impression.
complex question of first
Normally,
we first would scrutinize for error
any
and then determine
error was
(bad)
evidence of the defendant’s
the choice:
evidence of Sim-
either limit
committing a
tes-
appellant’s
mons’ bad character to
own
order
show likelihood of
testified,
timony,
subject appellant,
crime,
places
if she
her
unless
defendant
questioning
to similar
her
char-
about
own
E.g., Michel-
(good) character in issue.
Having
pressing
acter.
succeeded
son United
U.S.
is not
appellant,
choice on
218-20,
(1948); E.
93 L.Ed.
69 S.Ct.
strong position
in a
claim
191, at 454
Cleary, McCormick’s Evidence §
other,
chose to remain off the stand for
Torcia,
1978);
(2d
Supp.
1 C.
ed. 1972 &
unrelated reasons.
229, at 489
Evidence §
Wharton’s Criminal
1981).
specifi-
(13th
More
event,
Supp.
ed. 1972 &
suggests no oth-
the record
a
rebut
testi-
may
cally,
er
cannot
persuasive
why appellant
reason
her bad
changed
testifying.
fying
mind
defendant with evidence
example,
For
the last
defense counsel
and
general reputation
time
(including
court,
unequivocally,
confirmed
the trial
acts)
herself
unless the defendant
specific
did so
testify,
that her client would
counsel
evidence, as
good character
has introduced
knowing
intended
such;
her char-
place
a defendant does
impeach appellant
two
convic-
with
the stand
merely by taking
acter in issue
violence).
(neither
tions
one fcr
crime of
Tomaiolo, 249
a witness. United States
course,
impossible,
It is
for
McCormick,
(2d
1957);
Cir.
alone,
demonstrate
reason
454-55;
1 Wharton’s Crimi-
other,
testify;
no
but the
she declined to
Evidence, supra
489-93. The
nal
course of the trial
a sufficient
indicates
is not that character
reason for this rule
ruling
link
causal
between the court’s
irrelevant;
is, rather,
jury may
appellant’s
decision that the
must
so
weight
too much
such
put
possible
scrutinized
record
error. The
general
with a bad
prejudge one
“as
appel-
does not reflect other reasons for
opportunity
a fair
deny him
record and
call
declining
lant’s
sufficient
Mi-
charge.”
particular
against
defend
trial
rulings
court’s
error —harm-
*6
—if
476,
chelson,
at
at
69 S.Ct.
supra 335 U.S.
less.6
454;
191,
218;
at
1
McCormick, supra
see
§
question
The
C.
defendant
(3d
57,
456
ed.
Wigmore,
at
J.
Evidence §
opens
char-
the door to evidence of her own
1980).7
Supp.
1940 &
by presenting
acter
of the de-
lies at the inter-
ceased victim’s character
rule of rele
rule is a
The second
section
several other rules of evidence.
is
least when
defendant
vance:
at
is diffi-
particular evidentiary question
This
homicide,
right to
charged
she has
with
rules,
not
cult because these
while
other
the victim’s
present evidence of
other,
inconsistent
each
serve
with
different
self-defense.
support a claim of
character
to dif-
evidentiary goals which would lead
Akers, D.C.App., 374 A.2d
v.
United States
Accordingly,
ferent
here.
our deci-
answers
States,
874,
D.C.
v. United
(1977);
877
Hurt
de-
depends
evidentiary goal
sion
on which
curiam);
215,
(1975) (per
217
App.,
A.2d
337
by
presented
in the
priority
mands
situation
States,
177
A.2d
King v. United
this case.
Burks, 152
912,
v.
(1962); United States
913
432,
286,
434
284,
470 F.2d
U.S.App.D.C.
rule
begin
fundamental
with a
States, 107 U.S.
(1972); Evans
United
policy:
prosecution may
present
pun-
tendency
enough
deep
human nature
6.
It is
to demonstrate
time,
ish,
decision;
guilty
victim is
to her
she need
because our
contributed
reason,”
may
dis-
prove
as our
well
was the “sole
man and
not
senting
but
he is a bad
because
colleague
caught,
475—476.
Post at
maintains.
is a
he is
now that
be condemned
may
operate
The fact that other
have contrib-
reasons
with
tendency
fail to
which cannot
causal,
uted to the
erase the
Wigmore,
decision cannot
any jury, in or
of Court.
[1
out
ruling.
prejudicial, impact
and thus
of the
57,
supra
at
§
456.]
According Wigmore:
469
App.D.C. 324, 325,
Thus,
noted,
354,
(1960);
277
355
same issue.
as we
if a
Griffin v.
U.S.App.D.C.
87
defendant
introduces evidence of her
172, 174,
(1950);
183 F.2d
992
1
good
Whar-
can rebut
Evidence,
ton’s
supra
Criminal
236. Evi- with evidence of her bad character. Simi-
dence of violent
may
larly,
be testimo-
when a defendant introduces evidence
acts,
ny
specific
(whether
see Clark v. United
victim’s violent character
States, D.C.App.,
(1980)
not)
A.2d
known
to defendant
to demonstrate
(threats); Griffin, supra U.S.App.D.C.
likely ag-
at
deceased was the more
174, 183
(same), including
F.2d at 992
gressor,
opens
acts
she
door for
of violence unrelated to the
at issue.
crime
rebuttal with evidence
the victim’s
King, supra
at
(complaining
witness
peaceable character. 1 Wharton’s Criminal
Evidence,
involved in two
fights
with fellow
supra
236. The rebuttal
workers); Burks, supra
U.S.App.D.C.
goes directly
each case
to offset the defend-
(deceased
Such evidence
fense-proffered
relevant to the two
vic-
evidence of a deceased
basic
(1)
objective
self-defense issues:
opens
tim’s violent character
the door
question
(2)
who was the aggressor, and
against
rebuttal evidence
subjective evaluation
including
of the defendant’s
cross-ex-
defendant’s character —
state of mind: whether she
inwas
reasona
amination of the
herself as to
defendant
ble fear of
great bodily injury.
imminent
theory
acts of violence—on the
Burks, supra
U.S.App.D.C.
at 286 &
issue
germane
such rebuttal
n.5,
n.4 — 287 &
Finally, there is a
accused’s own character.
Id.
rule of evidential
532; accord,
parity:
Page,
once
v.
577
opens
the defendant
the door
at
S.W.2d
State
issue,
to a specific
177,
(Mo.App.1979). Wig-
the
has the
178-79
S.W.2d
right
respond
to
“Missouri”
contrary
parity
with
evidence on more favors the
of this
Akers,
877,
supra
though
8.
In
of that
at
we stated that when
the defendant was unaware
even
Moreover,
reputation.
the
both
defendant did not know
the cases on which
about victim’s vio-
relied,
altercation,
Akers,
Cooper, supra,
supra,
lent
al-
character at the time of the
and
homicides,
admissibility
they
though
not
of
did
evidence of the victim’s
involved
gener-
admissibility
premise
bad acts “is
of such
limited
homicide cases.” How-
evidence —
homicide;
ever,
Cooper
specific
reputation
v.
353
or
acts —on
al
Burks,
696,
(1976),
A.2d
700
to all assaults. See
n.8
we indicated that
the rule extended
434;
286,
general reputation
supra
U.S.App.D.C.
at
evidence of
violence,
at
470 F.2d
the victim’s
152
325,
acts,
Evans,
U.S.App.D.C.
specific
supra
at
277
contrast with
would
107
174,
355; Griffin,
U.S.App.D.C.
supra
be
at
admissible when the defendant asserted self-
87
at
prosecution,
defense in an assault or
homicide
This a split authority places us in properly even if jury, acts of violence —the applying tion traditional but of rule electing rule in perform mental announcing what instructed, would have to jurisdiction shall be. rebut- limit gymnastics defendant, in order to 9. One has ter if known commentator elaborated: fear, subjective and could show the defendant’s issue is not victim [T]he involved “Would (whether precipitate known deadly such evidence “Did de- introduce contest?” but precipitate defendant) particu- show victim or did fendant victim unknown to the deadly likely aggressor. lar victim’s contest?” Evidence of the State was the more force, probative Padula, turbulent is of A. 106 Conn. then, only Miranda, if the can inference be drawn overruled, (1927), State *8 likely aggressor than victim was more (1978); 107, 110, 623-24 Conn. only defendant. This be when can inferred Rodawald, People 177 N.Y. is also taken into con- defendant’s character generally U.Pa.L. N.E. See sideration, for if it is known that defendant long Rev., jurisdiction supra at 106-07. This character, of then the too was a man violent question to resolved this threshold since has probabilities readily favor the inference contrary. aggressor as that the defendant was the aggressor. the victim was U.Pa.L. [99 argument an too attenuated 11.It would be Rev., supra at 107.] reputation for say of a defendant’s reciprocal 10. The of of evi- issue use character tendency anoth- not fear violence indicates in- dence if the would arise defense person. er of charac- troduce evidence the victim’s violent tal the aggressor issue, apply and defendant’s fear —and then not to relate evidence of the defendant’s violent charac- only rebuttal evidence subjective ter to the defendant’s fear. We proper, “aggressor” aspect of the self-de- believe that the tendency inevitably would fense matter claim. The would become be the jury for to use evidence of the de- complicated judge jury even more for and if previous fendant’s to offset violence there were violent acts de- several of the regard claim self-defense without to its ceased, each raised a of which separate aspects.12 the defendant had or had known about it. course,
It would be possible, of
if the
defendant
introduced evidence of the de-
conclude,
accordingly,
We
character,
ceased’s violent
govern-
whether a
or some other defense
defendant
then
argue
ment
defendant did
witness
the deceased victim’s
testifies about
not know about the deceased’s violent char-
violent character
its relevance to
and,
acter
the time of the fatal incident
“reasonable
and/or
as
“aggressor”
fear”
accordingly, that the
not rele-
pects
claim,
general
of a
self-defense
vant
to the
subjective
defendant’s
fear.
rule
policy against
admission of evidence
argue
then could
that re-
about the defendant’s own character shall
buttal evidence about
defendant’s
vio-
unless,
course,
prevail,
the defendant
lent character
only
would
ag-
relate
in
places
(good)
her own
character
gressor issue, and thus
be
should
admitted
precise
issue. A
rule of parity,
more
while
subject
jury
to a
limiting
instruction
its use
theoretically appealing, would be unworka
purpose.
to that
Even we
agree
if
were to
ble in practice.13
that under these
jury
circumstances the
instruction,
could follow such
compare
an
court, therefore,
The trial
in
erred
supra,
*9
defendant’s own fear—an issue on which the
apply.
to
ented and thus difficult
government’s rebuttal evidence about the de-
he
Mr.
ruling
consequence
with that
interceded and then
beat
cannot
[Simmons]
her
giving
harmless.14
to
After
Chambers
death.”
Wells identified
police,
statement
to the
III.
photo
“I
array:
in a
think
Simmons
him,
guy
with the stick.”
considerably
The
appeal
second issue on
straightforward:
more
trial
prosecutor
portions
read
The
did not
court erred in
a
excluding
transcript
court.
grand
testimony to the
jury
Holt’s
testimony by two
the dece-
witnesses about
Holt)
However,
(in
to
reference
he stated
acts,
dent’s
pre-
taken from a
Mr.
that “the witness had identified
Sim-
grand
against
vious
jury proceeding
photographic
in a
mons
the murderer
decedent. We conclude that the trial court
addition,
re-
array.”
he
Wells’
In
read
its
ruling.
abused
discretion in this
sponse
to the
whether Simmons’
companion
helped
had
beat Chambers:
A.
In
to
an effort
establish that Sim-
they were switch-
“Melvin
said that
[Holt]
mons had been
aggressor, appellant
ing
see
up with the stick.
I
didn’t
[Wells]
sought
to
a transcript
introduce
of 1973
fight
him strike
Most of
Chambers.
grand jury testimony
persons,
of two
Cath-
getting
while I was
Richardson”
happened
Holt,
erine Wells and Melvin
who had iden-
dining
help
up
break
room
person
tified Simmons as the
who on anoth-
fight.
er occasion had beaten a man to death with
a
According
stick.
counsel’s
to defense
grand jury had indicted
Simmons
proffer, appellant “plan[ned]
murder,
to introduce
first-degree
eventually
but
purpose
this for
showing
Tyrone
Attorney
had dismissed
United States
identification,
Simmons was
likely
aggressor.”
photo
more
case. After her initial
lineup.
a
appear
Wells had failed to
at
During
trial,
prose-
a
colloquy before
partially
photo
recanted his
identi-
Holt
had
cutor told the court that Wells had affirmed
fication,
jury,
stating
grand
before
grand jury
previous-
to the
a statement she
“Well,
photo
yeah, I identified him in
ly
given
police.15
had
to the
Wells had told
sure,”
had
I
and also
really
but
wasn’t
the police that Brenda Kimbrough reported-
lineup.
a
identify
failed
Simmons
father;
ly had assaulted
that la-
had failed
Wells not
Stressing that
day,
ter the same
out
sought
Simmons had
lineup,
response
appear
but in
Kimbrough
hitting
and “started
Brenda
“I
array
merely
had said
think”
photo
stick”;
Kimbrough with the
that Wells
stick,” the
guy with the
was “the
Simmons
briefly
gone
dining
had
“back into the
room
prosecutor
exclude
asked
get somebody
up
fight”;
to break
“just
lacks
grand
testimony;
it
jury
and that when
“saw John
she returned she
Similarly, he
value.”
probative
substantial
lying
Chambers
on
floor and he was
testimony
urged
reject
Holt’s
court to
context,
beating
him with the stick.”
recantation.
because of Holt’s eventual
according
prosecutor,
the United
argu-
Attorney’s
testimony
prosecutor’s
States
office took this
accepted
The court
ment,
beating
proffered grand
to mean “that
ruling
Mr. Simmons was
that the
enough:
Kimbrough
testimony
positive
Brenda
and that Mr. Chambers
was not
prosecutor’s
impact
quotations
are
14. The
a
15. All the
from the
a
that causes
defend-
reading
arguably
to the court.
ant not
has
of Wells’ statement
a constitutional
dimension,
prosecutor
permitted
counsel
requiring
beyond
had
harmlessness
testimony (and
California,
grand jury
related state-
Chapman
see the
reasonable doubt. See
18, 24,
824, 828,
police)
but
to turn over
ments to the
declined
386 U.S.
L.Ed.2d
S.Ct.
appeal.
copy
file with the record
(1967).
question;
do
resolve
grand
below that the
our
Because of
conclusion
we
find
here
even
cannot
the error
harmless
in this
is admissible
under the lesser
of Kotteakos v. Unit-
standard
furnish defense counsel
750, 765,
should
ed
U.S.
66 S.Ct.
Mary-
Brady
portions. See
the relevant
with
land,
(1946).
473 Wood, THE COURT: I’m not rule on going testimony.” it Fowel v. admissible now, is, my present thinking 636, but (1948). 62 A.2d It is D.C.Mun.App., 637 open it, and I have an mind that if one weight on for the to decide jury and credibili did, of those witnesses at Jury the Grand the trial ty; “neither court nor the review fact, testify that ing infringe upon authority.” Simmons assaulted court can somebody 913, States, and those are witnesses una- 919 Norcott v. 65 vailable, I think Jury (7th denied, 694, that the Cir.), Grand tes- cert. 290 U.S. 54 S.Ct. timony prob- accord, would be 130, (1933); admissible. The v. 78 597 L.Ed. Scott having 260, lem I’m O’Brien, 1, 11-12, with it at moment Ky. the 263 129 110 S.W. that we don’t any, State, 775, 777-78, have sure (1908); I’m not we Baker 86 Neb. testimony have 300, to that And (1910); effect. we 126 301 N.W. 1 Wharton’s that, 278; have testimony Evidence, 151, to the supra effect Criminal § did, he but 5165, that he have or may Graham, I K. Wright supra C. & § person think he’s the who (“The judge did. That 51-52 cannot make decisions gives me a little trouble. the weight of the evidence under
THE
[*]
COURT:
[*]
[*]
Well,
[*]
we can
[*]
go
on this
[*]
Jur.2d
guise
Trial
determining relevance.”);
(1974
&
Supp.1980).
Am.
day long.
all
I
case,
think I
Friday
indicated
the
In this
we conclude that
say
and I will
again
it
today,
impermissibly
prov
trial
invaded the
court
mere fact that you
transcript
jury
excluding
grand
ince of the
Jury
Grand
you
what have
where
In the
testimony.
place,
grand
somebody says, “I think so and so com-
jury testimony
competent:
passed
was
offense,”
an
mitted
enough.
is not
reliability focusing
threshold test
source of the evidence.
1 Wharton’s
See
B.
In determining
admissibility
Evidence,
Although
supra
Criminal
evidence, the trial court
take
must
three
hearsay
applicable exception
an
—absent
—is
steps: (1)
intellectual
the evidence must be
com
considered
unreliable to constitute
too
relevant;
competent; (2)
(3)
it must be
and
evidence,
id.,
petent
hearsay
see
is deemed
though
even
relevant,
the evidence should
reliability
competent when other indicia of
not be admitted if
countervailing
certain
testimony.
up
make
for the absence of live
value,
circumstances outweigh probative
e.
In the
present
grand
testimo
g., prejudice,
issues,
confusion of
ny
hearsay exception
came
within
testimony,
delay.
cumulative
undue
Thus,
prior
testimony.16
recorded
generally
Gard,
1 S.
Jones on Evidence
competency
met
threshold
1.4,
(6th
4.6
ed.
Supp.1980);
§§
1972 &
here.
Evidence,
151,
Wharton’s
Criminal
§§
152,154. Although
Second,
the trial court has sub-
was
grand jury testimony
stantial discretion making
vio-
these determi-
material issue.
relevant to a
nations, the court must
appellant’s
be careful
was
lent character
material
confuse them
“credibility
with the
aggressor
and
claim
had been the
that Simmons
weight
assigned
be
in self-
competent
accordingly
and that
acted
16. Prior recorded
States,
testimony
(1980).
can
admitted as
exception
hearsay
“(1)
questions only
an
was
rule when:
Wells
testimony
unavailable,
dead).
(Holt concededly
direct
of the declarant is
“unavailable”
(2)
testimony
given
former
repeatedly
under
oath
had
Defense counsel
stated that she
(3)
legal proceeding,
or affirmation in a
diligent efforts to obtain both witnesses
made
proceedings
in the
issues
ly
two
substantial-
were
at no time
and the
same,
(4)
party against
challenged
sufficiency
whom
appeal
ef-
of these
opportuni-
now is offered
Having
had the
failed to raise this issue
forts.
ty to
court,
cross-examine the
the former
properly
declarant at
cannot
trial
proceeding.”
Avirom,
Alston v. United
D.C.
U.S.
See Miller v.
raise it here.
App.,
(1978);
A.2d
Ohio v.
367, 369-70,
see
App.D.C.
384 F.2d
Roberts,
448 U.S.
100 S.Ct.
(1980);
defense. evidence produce showing propensity show that the deceased himself had killed Simmons’ violence, once had person another was that unquestionably namely, relevant Simmons and had appellant this issue. with a stick chased can- We therefore another woman. struck Third, although has the trial court sub- argument that accept government’s the stantial discretion to exclude even relevant any cumulative and the evidence was countervailing evidence when cir- certain in its exclusion harmless.18 error value, outweigh probative cumstances its no such the maintains that present Finally, circumstances are here. See 4:6; Evidence, by grand jury generally supra implied Jones on the the uncertainty § Evidence, witnesses, fol- supra Wharton’s Criminal with their conduct combined 151; Graham, (namely, Wright lowing grand hearing supra jury C. & K. the lineups and Holt’s government’s arguments appear 5215-22. The their at §§ failure recantation) grand contrary partial their unpersuasive. are The rendered contends, initially, jury testimony the too unreliable for admission grand jury was testimony only apparently “circumstan- into evidence. The trial court tial, placed in that it Al- substantially on this rationale. relied [Sim- credibility on scene Mr. evidence be- though of Chambers’ beat- the of the mons] result, ing.” certainly open As a government says, grand jury fore the grand jury jury testimony have side- was for question, question would the jury tracked on a collateral issue and That witness said “I think” decide. one in- unnecessary guy thus caused was “the with the stick” confusion. This Simmons of, argument, however, guy was the simply, is inconsistent with the stead “Simmons render testimo- government’s prosecu- with the stick” does not proffer, for the of Again, question inadmissible. ny tor told the court that interpreted he distinguished from the competency must be testimony to mean that witness had weight: credibility of beating seen Simmons John Chambers to death expressions with a stick. That if be- testimony, such witness uses [W]hen lieved, is,” think,” my did much or “In place “My impression more than Simmons “I objec- ground beating. Chambers’ If the inter- will no opinion,” this merely speaks preted prosecutor it the same if it that he way appears him- tion observation, did, or an self the testimony labeled Simmons as a from an inattentive if it will the ex- memory, though murderer.17 Because claimed unsure he self-defense, to mean that pressions are found past the deceased’s hearsay. conjecture or from speaks from conduct was not a issue. collateral Evidence, 21- supra McCormick on Next, the government maintains that the Here, grand (footnotes omitted). proffered evidence was cumulative to their direct jury witnesses had testified aggressor properly issue and therefore Their lack of cer- possible observations. excluded. It true that the number no exclusion. tainty was basis for witnesses the deceased’s violent charac- testimony was grand jury ter “can be court’s controlled the trial Because relevant, not excludible competent, discretion so as to limit testimo- cumulative Hurt, trial court Here, policy grounds, the ny.” evidentiary at 217. excluding it from identifying evidence Simmons as a mur- abused its discretion magnitude derer was than trial. Johnson greater of far See government’s properly ex- could have 17. ment The eventual dismissal credibility At cumulative. indictment reflects on the tes- cluded the evidence as timony, competency ruling, point its had not not on relevance. intro- going at all duced Annot., court, moreover, grand generally excluded the violent character. ruling. pretrial pos- (1968 Supp.1980). in a This & A.L.R.3d argu- ture further weakens that such examination would be al- cated government, course, has a dis- lowed. credit it the jury through before elected It was also clear of the keep sort trial court relied on to questioned testify, she would have been
the testimony out of the case. state- regarding earlier *12 we agree Because assignments with two purported ments with her trial inconsistent error, of we appellant’s must reverse con- testimony, as two criminal prior as well viction and remand new for a trial.19 convictions. and
Reversed
remanded.
testify.
not
Even
Appellant chose
point
hindsight,
vantage
from the
of
PRYOR,
Judge, dissenting:
Associate
for
not to testi-
appellant’s
reasons
decision
Aside
fy
precisely
are not
discernible.
from
During the
appel-
course of a trial where
strength
appellant’s own evaluation of the
lant raised the defense
to a
of self-defense
evidence,
or weakness of the
charge of second-degree murder while arm-
impeachment
there were also factors of
on
ed, the government
its
announced
intention
the basis of criminal convictions
earlier
to cross-examine the accused about circum-
there was
Lastly,
stances
inconsistent statements.
surrounding an earlier arrest
judge’s
assault
as to her
dangerous
prior
with a
weapon. The
government’s explicit
this
position
behavior.
I cannot conclude that
last
was that this
parallel
evidence was
was
admissible
factor
the sole reason for
fashion
as would be so in
prior
testifying.
go
instances of
bad acts
To
further and hold
attributable
to the decedent.
court
nontestimony substantially
affected
accepted
prosecutor’s
therefore,
and,
rationale
indi-
fairness of the
consti-
trial
error,
assignment
partial
As to the third
of
statement admitted on direct examina-
qualified
States,
determination
U.S.App.
whether a witness is
See Hicks United
127
tion.
v.
reputation
209,
is left to
sound
214,
158,
(1967);
F.2d
Whit-
D.C.
382
163
judge.
Gage
of
discretion
the trial
See
Unit-
427,
v.
2; Davis,
ten, supra
at
261 S.W.2d
States,
122,
(9th
1948);
ed
167 F.2d
125
Cir.
188,
361; Westbrook,
supra at
92 So.2d at
People Workman,
898, 901,
Cal.App.2d
v.
136
conceivable,
supra at 915.
It is
514,
(1955);
289 P.2d
515
1 Wharton’s Criminal
cases,
properly
trial
in some
court
Evidence, supra
230,
at 499. There
no
was
to introduce
rule
the defense should wait
here, Wayne
abuse of discretion
Hartzell’s
portion
part
as
its own
the omitted
of
knowledge
reputation
of Simmons’
was limited
course,
provided,
could re-
of
the defense
opinions
family
of one
and of
three
(who initially
call
testified)
witnesses
opinions
individuals whose
he had received
though on
Be-
cross-examination.
years
several
before Simmons
was killed.
cause the record is unclear as to
Gage,
125; Workman,
supra
at 136
preventing
ruling was
trial court’s
limited to
901,
Cal.App.2d
volves to be
testimony of two witnesses —claimed homicide as
unavailable —to an unrelated
bearing violent be- decedent’s purported
havior. The identification wrongdoer
decedent as a in the other death two
was unclear. One witnesses “Well, yeah grand jury,
testified before in the I identified him decedent [the here] BENNETT, Appellant, M. Darlene photo really but I wasn’t sure.” Later the *13 person an failed to make identifica- same HILL, lineup. tion at a The second witness was OF SILVER FUN & FITNESS similarly INC., Appellee. Corporation, uncertain. A accepted premise The trial court No. 80-85. behavior of the assaultive Appeals. Court District of Columbia problem in decedent was admissible. was, minimum, a whether this instance Sept. Submitted evidence, in it the form that was availa- 17, 1981. Aug. Decided (grand reports), jury police ble minutes and presentable jury to the trial in man- confusing. ner that would not be going
THE COURT: are not go] to trial here to determine [to was involved as- [decedent] past. If
saultive behavior there’s was, If
evidence that he it’s admissible.
we have to hear all these witnesses and effect, trial,
go through a to determine was, going
whether he then it’s not
admitted. agree
I of words that the witness’ choice normally goes making an identification weight of the Cross-exam- evidence. ambigui- such generally
ination will resolve instance, no wit-
ties. In this there were pros-
nesses examine. Given the clear evoked, which was
pect confusion en-
discretion to exclude such majority’s
trusted judge. to the trial
solution, government, ante at —“The course, [grand it has discredit through evi- before the minutes] court relied on to
dence of the sort the trial no
keep out the case” —is Rather, encourages more simply
answer.
confusion. certainly
I see no abuse of discretion and stemming from ex-
not reversible error notes might there still be the ruling could cross-ex for a need virtual trial within a trial if, amine her 1971 about arrest determine what the defendant did or did herself, to testifying addition she called wit deceased, not know about before the nesses reputation court could rule on the re- acts of violence. quest. The might judicial result abe deter- however, government urges, any mination (solely for purposes of admitting agree. error here was harmless. We cannot evidence) that the defendant did not know We already have noted the causal connec- of the past; deceased’s yet, violent tion appel- between the court’s on nonetheless introduced some ev- idence to lant’s testify. decision not Part ILB. contrary, would supra. to be told it only persons In a where the ultimately should decide the case question of the knowledge present defendant’s at a homicide were the deceased evaluating accused, evidentiary the nature and extent of the and the an erroneous By contrast, jurisdictions Argu- where evidence fendant’s character would be irrelevant. therefore, of the victim’s ably, undisputed violent character limited to if it is that a defend- evidence known to the defendant at the time of ant did not know the deceased’s violent the altercation incident, and is admissible parity of the at the time fear, supra, issue of the defendant’s see note 10 permit government re- considerations should easily may instruct that it buttal with evidence the defendant’s cannot consider such evidence for open violent character. decline to leave purpose, “aggressor” such as the issue. possibility, because while where lack number of instances the defendant’s recognize analysis princi- 13. We that our relies truly unquestioned knowledge be of few, would pally problem limiting government exception leaving open an rule to the aggressor rebuttal evidence to the issue in distracting disputes prolonged, would invite cases where a defendant has introduced evi- did or did not know over what the defendant dence of the deceased’s many prefera- far A uniform rule is too cases. defendant, primarily known to show the substantially fact-ori- ble to one that would