52 A.3d 836 | D.C. | 2012
Lead Opinion
Michael Longus was convicted of armed second-degree murder
I. STATEMENT OF THE FACTS
The Government’s Case
In the early morning hours of June 5, 2003, Maurice Brown was walking across Foote Street near 60th Street, N.E., when he was killed by shots fired from a blue truck. At trial, the government presented two eye-witnesses, Chandra Cooley-Hinton and Shannon Scott. Cooley-Hinton testified that she was sitting in a parked car getting ready to smoke cocaine when she saw a person dressed in black (Maurice Brown) walk from the 5900 block of Foote Street towards Eastern Avenue and, “as he was crossing the street[,] the truck came by and some shots were fired and he got killed.”
Scott and Cooley-Hinton testified that they each separately had a conversation with appellant that same day or the day after, June 6, 2003, regarding the murder. Scott had seen appellant standing at his “regular corner,” on 60th Street and Eads Street, N.E., one block from where Brown was shot Appellant had approached Scott to ask if she knew what had happened “down there.” Initially, Scott said, she demurred, but then told appellant “that [she] had heard he had shot this man, did something to this man in the street.” She testified that appellant did not deny shooting Brown, and said that the man “shouldn’t have been up here robbing people.” Cooley-Hinton testified that she also spoke with appellant at the intersection of 60th Street and Eads Street, N.E., where she saw appellant sitting in the blue truck; she got into his truck, and asked why “would you do that on our street and
There was no physical or forensic evidence that linked appellant to the shooting of Maurice Brown. Based on Scott’s and Cooley-Hinton’s testimony about their conversations with appellant, the government argued that appellant killed Brown because Brown had robbed him.
The Defense’s Case
Appellant’s defense was that he had nothing to do with the shooting of Maurice Brown. The defense called four witnesses at his trial, Veria Brickhouse, Shirletta “Cheryl” Lewis, defense investigator Fa-heemah Davillier, and Detective Brown. Brickhouse lived in the building located in front of where the shooting took place; she testified that on the morning of June 5, 2003, she had heard gunshots outside as she was walking from her bedroom towards her living room. After she lay on the floor for about a half a minute for protection, she looked out of her window and saw a “hoy” lying on his stomach on the ground in front of her apartment building. She then saw “ ‘L’ ... one of the boys [from] around her neighborhood” drive down 60th Street and turn west onto Foote Street, stop beside the man on the ground and yell up to Brickhouse to call the police. Brickhouse testified that two to three minutes later, appellant (“Mike”) and an unknown companion approached on foot, from the west. Appellant spoke with “L,” turned around and walked east on Foote Street, crossed Eastern Avenue, to where his truck was parked. Appellant started his truck, returned to pick up “L,” and drove off.
Two of appellant’s witnesses offered testimony intended to impeach Shannon Scott’s testimony that appellant had fired the shots that killed Brown. Shirletta Lewis testified that she and Scott were in an alleyway near the scene at the time of the murder, that they had heard gunshots, two at first and then three more, and then “heard a truck pull off.” According to Lewis, Scott left and Lewis stayed in the alleyway. In contrast to Scott, Lewis testified that she and Scott were sitting in some bushes in the alley when the shots were fired, and that Lewis was unable to see what transpired from that location. Defense investigator Davillier testified that she had measured the distance between the location in the alley where Scott and Lewis had been and the place on the street where Brown was shot. From that distance — one-hundred and ninety feet and four inches — the investigator was unable to see or describe persons in vehicles driving on Foote Street.
MPD Detective Brown was called by the defense to impeach the testimony of Cooley-Hinton based on the Detective’s written report of the statement she had given to Detective Brown on June 6, 2003, the day after Maurice Brown was killed. That report described a shooting that was starkly different from the one Cooley-Hinton said she saw when she testified at appel
Faced with Detective Brown’s testimony disowning part of his own report, which corroborated Cooley-Hinton’s changed story that the shots came from a truck driven by appellant, defense counsel attempted to impeach Detective Brown by questioning him for bias as a hostile witness. The examination centered on a government investigation of allegations that Detective Brown and other officers had coached witnesses to change their stories about a homicide at “Club U.”
Prosecutor: [W]e think the only thing he’s entitled to would be to ask the question are you not being investigated for coaching and having witnesses change their story, that’s it. I don’t think you can get into whether or not he did or did not do it. It’s like any other matter and it goes to his credibility.
[Otherwise we would start allowing the defense to go on a fishing expedition in another unrelated homicide case that we could take two weeks to try that part of it as to whether or not Detective Brown did or did not.
So limited, defense counsel asked Detective Brown about the pending investigation. Detective Brown acknowledged that he was being investigated by the U.S. Attorney’s Office, and that he had been suspended from the police department. Detective Brown, however, deflected the suggestion that he had coached the witness in the Club U investigation to conform her testimony to the other evidence and denied that the witness had in fact changed her description of the murder weapon to conform to the physical evidence in the case:
Q. ■ In any case you were told that the information that the witness provided to you was not consistent with the known kind of physical evidence in the case, correct?
A. Correct.
*843 Q. And you went back out and re-interviewed the witness, right?
A. Correct.
Q. And then you came back with information to the government that the witness had now changed, the witness had changed the story, correct?
A. Never had changed its story, no.
Q. What had the witness done?
A. Well, the witness just explained this at the time when she witnessed the stabbing she was not sure if it was a certain object or not.
Q. In any case the U.S. Attorney, you have come to understand that the U.S. Attorney involved in that prosecution has interviewed the witness that you interviewed, correct?
A. I’m not sure.
Q. You are not sure. Essentially the reason you are under suspension is because it’s alleged that [in the Club U] case that you coached a witness to provide untruthful information, correct?
A. Yes, by the U.S. Attorney, yes.
After the defense’s truncated examination of Detective Brown concerning the Club U investigation, the government presented MPD Detective Blackwell as a rebuttal witness to rehabilitate Detective Brown regarding the substantial divergence between Detective Brown’s police report of the initial interview with Cooley-Hinton and her in-court testimony in this case, in particular, “to show that the [original] statement was consistent in [certain respects].” The prosecutor argued that rebuttal was necessary because the defense had “spent a great deal of time with [Detective] Brown on his statement ... concerning about walking up instead of riding up” and that Detective Blackwell’s rebuttal would “go[] to rehabilitate [Detective] Brown.” Over defense counsel’s hearsay objection, the court allowed Detective Blackwell to testify that Cooley-Hinton, at some unidentified time, had said that appellant shot Maurice Brown, that appellant drove a blue truck on the date of the shooting.
On March 11, 2005, the jury acquitted appellant of first-degree murder and carrying a pistol without a license (CPWL), but convicted him of second-degree murder and PFCV. The trial court sentenced appellant to concurrent sentences of 300 months of incarceration plus five years of supervised release on the second-degree murder conviction, and ninety-six months of incarceration plus three years of supervised release on the PFCV conviction. Appellant filed a timely notice of appeal.
After appellant was convicted, defense counsel became aware of additional information about the government’s investiga
On February 6, 2007, appellant filed a Motion for Relief pursuant to D.C.Code § 23-110. In his post-conviction motion appellant argued that the government violated his due process rights when it allowed Detective Brown’s false testimony— that a Club U witness had not changed her story about the murder weapon — to stand uncorrected before the jury, and that the court’s limitations on examination of Detective Brown violated his right to confront witnesses presented against him. The trial court denied appellant’s motion, explaining that evidence about the Club U investigation and witnesses was “collateral” to appellant’s case because it related to Detective Brown’s conduct “in an unrelated homicide with different witnesses at a different location and time.” Evidence of witness coaching by Detective Brown in the Club U case, the court held, was not “corruption evidence” admissible to show bias, and was inadmissible evidence of Detective Brown’s prior bad acts. The court further noted that appellant had been able to expose Detective Brown’s bias by reference to the pending investigation by the U.S. Attorney for witness coaching in the Club U investigation. Appellant filed a timely notice of appeal of the trial court’s denial of the § 23-110 motion. We consolidated the direct appeal and the appeal of the denial of the post-conviction motion for new trial.
II. The Government’s Due Process Obligation to Correct False Testimony
A bedrock principle of due process in a criminal trial is that the government may neither adduce or use false testimony nor allow testimony known to be false to stand uncorrected. See Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v.
Napue claims are reviewed de novo and, under this standard, we must conclude that appellant’s due process rights were violated necessitating a new trial if: (1) the government knew (or should have known) that testimony proffered by Detective Brown was false, but failed either to correct the falsehood before the jury or to apprise the court and defense counsel about Detective Brown’s false testimony in a manner that would have allowed it to be corrected before the jury; and (2) the government cannot show, beyond a reasonable doubt, that the false testimony was harmless in the context of appellant’s trial. See Napue, 360 U.S. at 271-72, 79 S.Ct. 1173 (noting that “[we] make [our] own independent examination of the record,” including “re-examin[ing] the evidentiary bases” for the trial court’s determination); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that the Napue standard is equivalent to that applicable to constitutional errors under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); Jenkins v. Artuz, 294 F.3d 284, 294-95 (2d Cir.2002); United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir.1997). The government argues, however, that in this case we should review for abuse of discretion because appellant’s Napue claim was made in the context of a post-conviction motion for new trial. See O’Brien v. United States, 962 A.2d 282, 314 (D.C.2008) (stating in the context of a Rule 33 motion for new trial raising a Napue claim, “[t]his court reviews a decision to deny a motion for new trial for abuse of discretion” (internal quotation and citation omitted)). We note that defense counsel did not learn, until after trial, the details of what the government knew about the changed stories of the Club U witnesses because the government resisted turning over the evidence requested as part of appellant’s Brady request. Thus, counsel could not have raised the Napue claim on direct appeal. In any event, the disposition of this appeal does not turn on the difference in the standard of review. Regardless of whether the Na-pue claim was presented in the context of a new trial motion entrusted to the trial court’s discretion, the court commits legal error (and thus abuses discretion) if its ruling is based on incorrect legal principles. See Johnson v. United States, 398 A.2d 354, 363-64 (D.C.1979). Here, the trial court did not apply Napue principles in denying the motion, but instead reasoned (incorrectly) that evidence of the Club U investigation would be “a time-consuming and confusing sub-trial on a collateral matter.”
The government contends that we need not address appellant’s due process claim at all, arguing that the government’s obligation under Napue applies only when statements are elicited by the prosecutor from a government witness. Thus, the government argues, appellant’s claim must fail since it was defense counsel who called Detective Brown and elicited the testimony appellant claims was false.
Moreover, the government’s obligation is not limited to the correction of false evidence presented in its case-in-chief, but extends to evidence that pertains to impeachment:
The principle ... does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.
Napue, 360 U.S. at 269, 79 S.Ct. 1173. Thus, “when the ‘reliability of a given witness may be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (internal quotation and citation omitted).
Our conclusion that a Napue claim does not depend on whether the government calls and questions the witness is supported by the Supreme Court’s grounding
It is well established that the government’s obligation extends to the
Having established these basic legal principles, we turn to the facts of this case. In his testimony, Detective Brown acknowledged in response to defense counsel’s questioning that he had been placed on suspension because he was under investigation by the U.S. Attorney’s Office for coaching witnesses in the Club U investigation. Appellant’s argument is that the prosecutor should have corrected the record when Detective Brown when he testified that the witness in the Club U Case “never had changed it’s story, no.” There is no doubt that the government, collectively, knew that the witness had changed her story.
We need not decide whether the statement needed to be corrected, and if so, whether it was the government’s responsibility to do so under the circumstances, because as we discuss in the next section, appellant is entitled to reversal and a new trial on a different ground that also relates to impeachment of Detective Brown’s credibility. In light of our holding that the court unduly limited appellant’s right to cross-examine the detective about whether he had coached witnesses in the Club U investigation to give false testimony, and because appellant is now in possession of all the information necessary to establish at a new trial that witnesses did change them testimony after being re-interviewed by Detective Brown, appellant will be able to present a factual record to the jury.
III. The Sixth Amendment Right to Confrontation
Appellant raises another claim that, although also related to the credibility of Detective Brown’s testimony, has a different legal basis. He argues that his Sixth Amendment right to confront adverse witnesses was violated by the trial court’s ruling imposing limitations that precluded him from conducting an adequate examination of Detective Brown for bias related to his “corrupt” behavior in the Club [U] investigation. In this case, the trial court ruled that appellant could ask Detective Brown whether he was under investigation for coaching a witness to provide untruthful information, but that defense counsel could neither question the detective about, nor introduce evidence of, the facts underlying the allegations. We conclude that appellant’s right to confront Detective Brown by exposing his various biases was violated by the limitations imposed on cross-examination and introduction of evidence about the detective’s involvement in witness coaching in the Club U investigation.
The Sixth Amendment guarantees a defendant in a criminal case the right to confront witnesses “against him.” U.S. Const, amend. VI. As is the case with the government’s obligation under the Fifth Amendment’s Due Process Clause we have just discussed, it is immaterial under the Sixth Amendment whether the adverse witness has been called by the defense or the government, see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973),
Here, the defense strategy to call Detective Brown to impeach Cooley-Hinton’s testimony with her prior inconsistent statement to Detective Brown was reasonable and grounded on evidence in the record, the police report Detective Brown had written when he interviewed Cooley-Hinton. It was not a subterfuge, as impeaching Cooley-Hinton’s trial testimony that appellant was the driver of the van from which the shots were fired, via her inconsistent initial report to Detective Brown (that a lone shooter other than appellant had “walked up”), would surely have been helpful to the defense. When Detective Brown retracted at trial what he had written in the report about Cooley-Hinton’s initial statement to the police about the shooter having “walked up,” it became necessary to confront him with respect to that retraction.
The right to meaningful confrontation “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). As the Supreme Court has said:
[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the fact from which jurors ... could appropriately draw inferences relating to the reliability of the witness.
Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105). “Bias refers both to a witness’ personal bias for or against a party and to his or her motive to lie.” McCloud v. United States, 781 A.2d 744, 752 (D.C.2001) (internal quotation and citation omitted). “Bias is always a proper subject of cross-examination.” Brown v. United States, 683 A.2d 118, 124 (1996) (quoting Jones v. United States, 516 A.2d 513, 517 (D.C.1986)).
The Sixth Amendment right to confrontation is violated “only when the court precludes a ‘meaningful degree of cross-examination.’ ” Jordan v. United States, 18 A.3d 703, 710 (D.C.2011) (quoting Flores v. United States, 698 A.2d 474, 479 (D.C.1997)). In determining what is “meaningful” cross-examination, we have been solicitous of a defendant’s right to effectively expose a witness’s various biases to the jury. Thus, we have said, “[t]o make cross-examination based upon witness bias effective (and thus satisfy the Sixth Amendment), defense counsel must be ‘permitted to expose to the jury the facts from which jurors ... could appropidately draw inferences relating to the reliability of the witness.’ ” Lewis v. United States, 10 A.3d 646, 654 (D.C.2010) (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105). A trial court ruling therefore in
In this case, the defense sought to impeach Detective Brown for bias on two different grounds. One type of bias arose from the fact that Detective Brown was under investigation by the U.S. Attorney for witness coaching. This bias impeachment was permissible, as we recently held in connection with another detective also under investigation for witness coaching in the Club U murder investigation. See Smith, 26 A.3d at 262-63.
A trial court’s “refusal to allow questioning about facts indicative of [a witness’s] bias from which the jury could reasonably draw adverse inferences of reliability is an error of constitutional dimension.” Cunningham v. United States, 974 A.2d 240, 245 (D.C.2009). Moreover, evidence from which the jury can infer bias may be presented not only through cross-examination, but also by the introduction of extrinsic evidence. See In re C.B.N., 499 A.2d 1215, 1218 (D.C.1985) (“[T]he defendant may introduce extrinsic evidence to establish bias or prejudice because it is not a ‘collateral issue.’ ” (quoting Johnson v. United States, 418 A.2d 136, 140 (D.C.1980))). The trial court’s ruling limiting counsel’s examination of Detective Brown’s bias related to the Club U investigation because it was deemed “collateral” therefore infringed on appellant’s rights under the Sixth Amendment.
The defense had another theory for bias cross-examination. In addition to wanting to expose Detective Brown’s motivation to curry favor with the government and avoid additional exposure in light of the pending investigation into witness coaching, counsel wished to show his “corruption” through evidence that Detective Brown had actually engaged in witness tampering in the Club U case. “Conduct of that sort, revealing a propensity or willingness to thwart the ascertainment of truth in a judicial proceeding, bears directly on the veracity of the ■wrongdoer in testifying at a trial.” Bennett v. United States, 763 A.2d 1117, 1123 (D.C.2000). This kind of “corruption evidence,” we have held, is a distinct subset of bias evidence. In re C.B.N., 499 A.2d at 1219 (noting that corruption evidence is a subset of bias evidence whose “essential discrediting element is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony”) (quoting 3A John H. Wigmore, Evidence in Trials at Common Law §§ 956-964 (Chadbourn ed. 1970)); see also 1 McCormick on Evidence § 39, at 174 (6th ed. 2006) (“Self-interest in an extreme form may be manifest in the witness’s corrupt activity such as seeking to bribe another witness, taking or offering to take a bribe to testify falsely, or making similar baseless charges on other occasions.”). Thus, the allowance of some examination for one type of bias (currying favor with the government) does not satisfy the Sixth Amendment with respect to cross-examination for corruption, a different type of bias. See Davis, 415 U.S. at 319, 94 S.Ct. 1105 (recognizing defendant was precluded from cross-examining witness about two different interests leading to bias: to shift suspicion from himself for the charged crime and to avoid revocation of probation in another case for failing to “cooperate”); Jenkins, 617 A.2d at 532 (noting that “even where the trial court has allowed counsel to explore at will the potential ulterior motives of a witness, yet refuses one potentially inflammatory area, an error has occurred”).
The government argues that appellant did not elucidate the corruption theory of bias at trial and that the extrinsic evidence about the investigation into the Club U homicide necessary to prove it would have been collateral to the investigation in this case. As we have already discussed, to the extent that Detective Brown’s witness coaching in the Club U investigation involved corruption, it was not “collateral,” and extrinsic evidence
We are not persuaded by the government’s argument that the trial court’s ruling limiting bias examination can be explained as an exercise of the court’s power to impose reasonable limitations on cross-examination. That discretion is properly exercised by imposing limitations designed to avoid jury confusion and witness harassment and to promote judicial efficiency, but it does not permit infringement on otherwise legitimate questioning by defense counsel to probe a witness’s bias. We need not retreat from the “oft-repeated maxim that a trial court retains broad discretion to impose ‘reasonable limits’ on cross examination,” to conclude that in this case the “broad discretion afforded to the trial court ‘cannot ... justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony.’ ” Coles v. United States, 808 A.2d 485, 492 (D.C.2002) (Ruiz, J., dissenting) (quoting Bennett v. United States, 797 A.2d 1251, 1257 (D.C.2002)).
In short, the trial court’s ruling was based on the erroneous belief that cross-examination about the fact of a pending investigation, without allowing defense counsel to probe into and present extrinsic evidence of the underlying facts, satisfied appellant’s right under the Sixth Amendment to expose all of Detective Brown’s potential biases relevant to his testimony in appellant’s trial.
IV. Prejudice
Having found that appellant’s Sixth Amendment confrontation right was violated, we consider whether this violation was harmless applying the constitutional Chapman standard. See In re C.B.N., 499 A.2d at 1221 (noting that “even if the court has permitted some cross-examination relevant to bias, we will evaluate the error under the harmless constitutional error test of Chapman ”). Under Chapman, the government bears the burden of showing that the error was “harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. 824. After considering “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and ... the overall strength of the prosecution’s case,” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431, we conclude the government cannot meet this high burden.
It bears repeating that the ultimate objective of defense impeachment was Cooley-Hinton. She testified that although appellant did not shoot the victim, he drove the truck to where the victim was standing and then drove off after the passenger fired the shots. From the verdict, finding appellant guilty of second-degree murder and PFCV (but not CPWL), it appears her testimony carried the day with the jury.
We recognize that the defense strategy of impeaching Cooley-Hinton’s trial testimony by having Detective Brown testify about her inconsistent statement to the police was partly successful. According to Detective Brown’s report, Cooley-Hinton said “L” was the shooter, and at trial she denied that she had done so. Detective Brown did not retract that part of his report as a “typographical error.” However, even though it might seem, at first blush, that the discrepancy between Cooley-Hinton’s statement to the police and her trial testimony about whether the shooter “walked up” or “drove up” was less important than her accusation that “L” was the shooter, the difference was critical in the context of the evidence inculpating appellant. At trial, Cooley-Hinton testified that appellant was driving the truck from which the shots were fired. Although she said it was the passenger, not the driver, who fired the shots, appellant would nonetheless have been guilty of aiding and abetting the murder; whether she said the shooter was “L” or not was not determinative of appellant’s guilt. But if the shooter had “walked up” — as Detective Brown’s report said Cooley-Hinton initially claimed — there would not have been a drive-by shooting from appellant’s blue truck. Cooley-Hinton’s changed account to a drive-by shooting was the scenario that the government presented at trial. That appellant’s blue truck was involved in the shooting and that appellant was the driver were essential, therefore, to inculpate appellant in the murder, whether as a principal because he was the lone occupant (as Scott said and the government argued), or as an aider and abettor (as Cooley-Hinton’s trial version supported). Several witnesses had also mentioned a truck at the scene of the shooting. Scott’s companion Lewis said they heard a truck pull off after the shots rang out; but Lewis could not see the shooting (and said Scott could not either). Brickhouse, the neighbor who looked out the window after she heard the shots, testified to a more detailed sequence of events: that “L” had
We recognize also that defense counsel attempted to impeach Cooley-Hinton directly by questioning her about her motive to alter her story. Cooley-Hinton, a witness shown to be looking for favors from government officials, said that she gave information regarding Maurice Brown’s murder when she was arrested and interviewed at the MPD Sixth District police station by Detective Brown on June 6, 2003, see note 4, supra, and then by Detec-fives Blackwell and Middleton on June 18, 2003, in Rappahannock Regional Jail, while she was serving a sentence for cocaine charges. At the time of appellant’s trial, Cooley-Hinton was waiting to be sentenced in two cases in the District for soliciting for purposes of prostitution and for possession of cocaine. In fact, Cooley-Hinton had spoken to the prosecutor in appellant’s trial about her pending cases in order to seek his assistance.
We have already explained the significance of Cooley-Hinton’s testimony at the center of the government’s case that Maurice Brown was killed in a drive-by shooting, and its apparent role in the jury verdict. The government’s argument that appellant’s motive was revenge because Maurice Brown had robbed him depended entirely on the credibility of Cooley-Hinton and of Scott. Scott was substantively impeached, by Lewis, concerning her ability to see the shooting at all, and, it appears from the verdict, her account that appellant was the shooter was not credited by the jury. The jury could, of course, have picked and chosen among the various parts of these witnesses’ testimony, crediting some, disbelieving others. And with the right combination of credited testimony, the evidence would have sufficed to support the jury’s verdict finding appellant guilty of second-degree murder. But sufficiency of the evidence is not the issue we need to consider.
“The correct inquiry is whether, assuming that the damaging potential of the cross-examination was fully realized, a reviewing court might nevertheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. We cannot. If Detective Brown’s biases had been fully exposed to the jury, his testimony recanting part of his police report and supporting Cooley-Hinton’s testimony might have seemed suspect and, implicated in that suspicion, Cooley-Hinton’s trial testimony about appellant’s role in a drive-by shooting. Instead, as appellant argues, “the government benefitted from unfair bolstering of its claim that Ms. Cooley-Hinton was a truthful witness who had been consistent in her description of the crime.” The jury was left to believe — especially after Detective Brown was rehabilitated by Detective Blackwell — that Cooley-Hinton had never wavered from her account at trial that she had seen a drive-by shooting and that appellant had been the driver of the truck from which the shots were fired. Detective Brown’s testimony that the inconsistent statement in his police report had been his own “typographical error,” erased the doubt that the jury would likely have harbored about the credibility of a witness who could give two accounts that differed in such material respects. Detective Brown’s testimony would have come under a cloud if the jury believed that just as he was capable of the witness tampering in the Club U case for which he was under investigation, he would be willing to lie under oath to the jury in this case in order to secure a conviction. However, defense counsel was not able to present a complete picture of the nature and extent of the biases that might have led Detective Brown to alter his testimony about what Cooley-Hinton told him about the murder of Maurice Brown. This impairment of the right of cross-examination was prejudicial, as the government’s case against appellant for that murder was dependent on Cooley-Hinton, whose impeachment was thwarted by Detective Brown’s testimony corroborating her testimony. That corroboration, as we have discussed, would have been subjected to serious impeachment had defense counsel been permitted the full scope of cross-examination and presentation of bias evidence to which appellant was entitled under the Sixth Amendment.
For the foregoing reasons, appellant’s convictions are reversed and the case is remanded for a new trial.
So ordered.
. D.C.Code § 22-2103, -4502 (2001).
. D.C.Code § 22-4504(b) (2001).
.Cooley-Hinton testified that the truck was blue and silver.
. Detective Brown testified that Cooley-Hinton was arrested on June 6, 2003, for solicitation for lewd and immoral purposes, but Cooley-Hinton testified that she was arrested for possession of cocaine and drug paraphernalia.
.Detective Brown’s report contains a detailed description of "L": a "B/M [black male] about the age of 25 to 30 years old, dark complexion, 5 '6", 160 lbs, brn eyes, short haircut, wearing grey T-shirt and black jeans.” Detective Brown’s report says Cooley-Hinton said that "L hangs out on Dix Street, and drives some type of blue truck and has a white girlfriend.” The witnesses at trial said that appellant is not "L.” Scott testified that appellant did not go by the nickname of "L,” and that appellant ”know[s]” and "hangs out with ‘L.’ ” Brickhouse, the neighbor, also testified that appellant and “L” were not the same person. According to the indictment, appellant was known as "Michael,” "Michael Ebb,” and "Knowledge.”
. The "Club U homicide” refers to the stabbing death of Terrance Brown on February 13, 2005, prosecuted in the case of United States v. Jerome Jones, D.C. Sup.Ct.2005FEL-6847.
. Henri E. Cauvin & Del Quentin Wilber, Detectives Pulled Off Club U Slaying Case, Wash. Post, February 25, 2005, at B2.
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. We cannot determine whether' defense counsel said “intrinsic” rather than "extrinsic” evidence, or whether there is an error in the transcript. On appeal, both parties appear to agree that defense counsel was proposing to impeach Detective Brown by using the evidence about the Club U investigation that counsel claimed he was entitled to receive under Brady.
. At this point in the pretrial hearing, the judge raised with counsel the possibility that a stipulation could be entered into regarding the identity of the witnesses and that the witnesses had "made statement A and thereafter made statement B.” In response, the government said it was "pretty sure” it would enter into such a stipulation, but it could "not commit” because it did not "know what is going on” in Detective Brown's investigation at that time. Defense counsel stated that the stipulation would not be sufficient because "it doesn't address anything about the detective's behavior.” In response, the trial judge said she was "sure there is language that can be stipulated to or the government would be directed to provide the material.” At trial a week later, the government stated it would enter into a stipulation that Detective Brown was suspended and under investigation for witness coaching, but would not agree to the stipulation proposed by the judge concerning the change in the witnesses' story.
. Detective Blackwell also said that the had “determine[d] during the investigation that appellant had a white girlfriend.” The jury was instructed the following day to disregard Detective Blackwell’s testimony that appellant had a Caucasian girlfriend because the detective did not have first-hand knowledge of this information.
. In rebuttal, the prosecutor argued:
But who is L? L is Michael Longus, the only person [Cooley-Hinton] identified, the one who drives the blue truck and the one who has the white girlfriend and whether he walked up or drove up or did whatever, it wasn’t nobody that shot that young man, Maurice Brown.... The only person who had a motive to go out and do this ... was [appellant].
. On February 15 the witnesses informed the Assistant United States Attorney who was investigating the Club U murder. The witnesses’ revelations so concerned the AUSA that two days later she informed the MPD Office of Internal Affairs (OIA) in the Office of Professional Responsibility of the allegations that these witnesses had been convinced by Detective Brown "to change their statements to corroborate forensic evidence.” ”[G]iven the nature of the allegation and the seriousness of the charges,” the OIA directed Lieutenant William Farr of the Office of Superintendent of Detectives to place Detective Brown in "Non-Contact Duty” status.
. A third witness's testimony before the grand jury consistent with her original statement to Detective Brown and the witness then said that no one had "suggested] to [her] what [she] should say.” However, this witness recanted nine months later; she testified at the Jerome Jones probable cause and detention hearing that Detective Brown and his partner, Detective Morales, had told her to say that the weapon used was a "shiny, metal object” rather than a "box cutter” as she had originally described it.
. The trial court did not specifically address appellant’s Napue claim, but appears to have been responding to a Brady argument. On appeal, appellant does not press his Brady claim; the government does not contend that the Napue claim is not preserved.
. Neither party cites a controlling case. The government relies on O’Brien, 962 A.2d at 315, and Bruce v. United States, 617 A.2d 986 (D.C.1992). But neither of these cases decided the question before us. O’Brien was decided on the basis that the trial judge did not clearly err in finding that the witness’s testimony had not been "perjured” or "knowingly
Appellant relies on Commonwealth v. Jenkins, 1981 WL 180482 (Va.Cir.1981) ("[I]f the prosecution has a duty to come forth with earlier inconsistent testimony, the [cjourt does not believe it would matter which party had put the witness on.”).
. In Napue, the principal state witness, who had pled guilty and was serving a 199-year sentence for the same murder charged against the defendant, falsely testified that he did not have a promise from the government that he would receive favorable treatment in return for his testimony. In fact the government had made such promises and the prosecutor did nothing to correct this false testimony. See 306 U.S. at 264-65, 59 S.Ct. 490.
. As appellant argues, in a situation like this, where the government "is faced with a witness who is potentially troubling, but nonetheless important (like Detective Brown), the government can simply choose to forgo calling the witness in its case (as it did here), secure in the knowledge that when the defense called the witness, the government would have no Napue obligations should this witness testify in a false or misleading manner.”
. The prosecutor argued in closing:
Now the defense is going to say, well, Chandra Cooley[-Hinton] initially spoke to [Detective] Eric Brown and they are going to talk about the notes, when he talked about when Eric Brown interviewed ... Chandra Cooley[-Hinton] on June of 2003, and he said, well, L walked up and shot him, and as ... Detective Eric Brown told you, in October of 2003, he corrected it during a hearing when he said, L drove up.
In response, defense counsel argued in closing that jurors should credit Cooley Hinton’s initial version as contained in the police report "because it's just common sense, a detective, an experienced detective is going to get it right.” Counsel then added:
Whether [Detective Brown] will tell you that he got it right as the case goes on is a different question ... and this detective, as you know is under investigation for allegedly hanky-pankying with witnesses and you know what he wrote down ... based on what Chandra [Cooley-Hinton] told him that first time is not at all [like] what she comes up with on this witness stand and what she came up with later on. L walks up and shoots the guy. There it is. Even L drove up and shoots the guy, that's still different than what she says here. It’s still L. You can't make L go away. There it is.
. Perjury is a "willful assertion as to a matter of fact, opinion, belief, or knowledge” made by a witness under oath that is "material to the issue or point of inquiry and known to such witness to be false.” Brooks v. United States, 396 A.2d 200, 205 (D.C.1978).
. The AUSA investigating the Club U murder was not the prosecutor in appellant’s trial; the record is unclear as to how much the latter knew about the revelations made by the witnesses in the Club U investigation.
. It is also clear that at the time of appellant’s trial the government believed the Club U witnesses when they said that Detective Brown had coached them to change their story. The government presented the witnesses’ testimony about the coaching to the grand jury that indicted Jerome Jones with the Club U murder, used the witnesses’ coaching allegations to bolster the reliability of their initial accusations against Jones before they were coached in opposing Jones’s motion to dismiss the indictment, and eventually indicted Detective Brown for obstruction of justice in connection with the Club U investigation and prosecution of Jones. The AUSA who investigated the Club U murder testified at the detective's trial that "it was pretty blatant” from her conversations with tire witnesses that they had changed their stories at the detective’s suggestion
.Detective Brown said that "the witness just explained this at the time when she witnessed the stabbing she was not sure if it was a certain object or not.”
. There is a conceptual interplay between the defense’s access to impeachment information and ability to conduct cross-examination and the government’s Napue obligation. Where defense counsel has received the impeachment information to which it is entitled and is able through cross-examination to expose to the jury the facts relevant to a witness’s credibility, the prosecutor's due process obligation to correct the record is not as acute, for "it [is] arguably appropriate for the prosecutor to leave it to defense counsel to propose a way to protect the interests of his client." Bruce, 617 A.2d at 993. However, if defense counsel is unable to present evidence to correct false testimony — whether because of ignorance of the true facts or a judicial limitation — the government’s Napue obligations come to the forefront.
. "The availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never
. "The term 'bias’ is utilized by some authorities as a shorthand reference to all forms of partiality that may be proven by extrinsic evidence.” In re C.B.N., 499 A.2d at 1219 (citing e.g., E. Cleary, McCormick on Evidence § 40 (3d ed. 1984)).
. In Smith, the defense called MPD Detective Milagros Morales, who had investigated the Club U homicide along with Detective Brown. Defense counsel wanted to ask Detective Morales about the government’s investigation into her alleged malfeasance in the Club U investigation “to expose to the jury [the detective’s] potential bias.” 26 A.3d at 263. Specifically, defense counsel wanted to show that Detective Morales wanted to curry favor with the government because she was under investigation for coaching witnesses in the Club U homicide. Id. at 263. The trial court prohibited defense counsel from even mentioning the fact of an investigation into the detective’s conduct, however, because counsel did not have evidence that Detective Morales had actually coached witnesses, and, it appeared to the trial court, counsel's only reason for calling Detective Morales was "to parade her as a dirty cop.” Id. at 256. We held that the bias impeachment was proper and that the defense had proffered a sufficient foundation. Id. at 262-63.
. Although our review of evidentiary rulings is deferential, "[t]he usual deference does not apply when a [trial] court incorrectly recognizes the nature of the evidence." Bennett, 763 A.2d at 1124 (quoting United States v. Manske, 186 F.3d 770, 776 (7th Cir.1999)).
. The trial court also ruled that the evidence should not be admitted because it constituted evidence of Detective Brown’s prior “bad acts.” The government does not urge this rationale on appeal, but we wish to lay to rest any suggestion that "prior bad acts” of the
. Appellant was charged as the principal in the shooting, and the government argued in
. She testified that she "asked him would he take and see that my first case that was dismissed and dropped stay that way and with the case that I’m on now, it was supposed to be over in February, why is it still continued, can he find out what’s the problem and he said he would see, I mean he would find out.... I don’t want to do a day.”
. It is worth noting that Cooley-Hinton’s cooperation in appellant's case did, in fact, serve to reduce the sentence in one of her own criminal cases that was pending at the time of appellant’s trial. At Cooley-Hinton’s sentencing hearing before Judge Ann O’Regan Keary on May 9, 2005, three months after appellant’s trial, Cooley-Hinton's counsel informed the trial judge that Cooley-Hinton had:
testified for the Government in a homicide case ... The [homicide case] prosecutor actually came to the last hearing earlier last week and told the [pjrosecutor [in Cooley-Hinton’s case] ... that she not only helped in the conviction in that case, but helped in another matter also that someone was sitting in the courtroom and heard her testify and ended up pleading guilty. So, [the prosecutor] said it’s a two[-fer], and that was one reason we were able to get the plea for the BRA [Bail Reform Act violation] in this, but plead to the sexual solicitation and dismiss the BRA.
Judge Keary took this information into consideration in sentencing Cooley-Hinton to 90 days imprisonment with credit for time served and a $50 fine to be paid to the VVCCA, stating, "in light of the further information that’s been provided, the Court is willing to sentence Ms. Cooley[-Hinton] consistent with what the Defense has requested.”
Concurrence Opinion
concurring in part and concurring in the result:
I agree that appellant’s convictions must be reversed on the “corruption bias”