CHRISTIAN ROMERO, APPELLANT, v. UNITED STATES, APPELLEE.
No. 18-CF-999
DISTRICT OF COLUMBIA COURT OF APPEALS
January 6, 2022
Appeal from the Superior Court of the District of Columbia (CF1-10129-16) (Hon. Juliet McKenna, Trial Judge)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Submitted April 2, 2020 Decided January 6, 2022)
Gregory M. Lipper was on the brief, for appellant.
Bryan H. Han, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
I.
The government sought to prove at trial that on the night of April 23, 2016, appellant confronted Dimas Fuentes-Lazo and Mario Rosales after they saw him break a side mirror on Rosales‘s parked car in the 800 block of Kennedy Street, N.W. The government charged that before Rosales could call the police, appellant lunged at him with a knife and then turned on and fatally stabbed Fuentes-Lazo.
Prior to trial in this case, the government informed appellant‘s counsel by letter that it expected to have certified copies of his 2013 conviction for first-degree assault in Maryland and the transcript of the hearing at which appellant pled guilty to that offense. In that case, the letter stated, appellant stabbed a man nine times with a knife, including three times in the neck and one time in the back, causing a punctured lung and other serious injuries. The government advised the defense that it did not intend to use appellant‘s Maryland conviction or guilty plea in its case-in-chief, but that it reserved the right to use that evidence “for purposes such as, but not limited to, impeaching Defendant should he testify or to rebut any suggestion by the defense (in its opening statement, questioning of witnesses, or otherwise) that Defendant did not know (or should not have known) that stabbing someone could cause an extreme risk of death or serious bodily harm.”
At trial, the government‘s case-in-chief included the eyewitness testimony of Mario
Mr. Rosales testified that he and Dimas Fuentes-Lazo, lifelong friends, drove to Kennedy Street to go to a restaurant. Rosales parked his car in the 800 block and the two friends got out and crossed the street. They stood on the sidewalk there while Rosales took a phone call. He was still on the phone when he heard a noise, turned toward the street, and saw appellant breaking the mirror of his car. Rosales testified that he confronted appellant, saying, “Hey that is my car.”
Appellant responded with profanities, walked toward Rosales and Fuentes-Lazo, and threw a Coca-Cola bottle at them. Appellant then asked if the men wanted to fight. Rosales told appellant he was going to call the police. Accompanied by Fuentes-Lazo, Rosales went back across the street to his car to make the call from there. As he did this, he tried to push the car alarm button on his car key, and accidentally opened his trunk instead. Appellant, wielding a knife, “launch[ed] himself” at Rosales. Rosales kicked back at appellant, who bent over from the impact. Appellant then straightened up, turned to attack Fuentes-Lazo, and stabbed him several times before Rosales could come to his friend‘s aid. Appellant then dropped the knife and ran away.
Eduardo Videz, who was working as a “bouncer” at a restaurant in the 800 block of Kennedy Street, testified that he saw the fight. He did not know any of the men involved in it. Mr. Videz testified that appellant was holding the knife in his hand when he straightened up after Rosales kicked him. Video footage from store security cameras in the vicinity also showed the fight from its inception to appellant‘s flight. The video footage was consistent with the witnesses’ accounts, though it was not clear enough to show where the knife came from or whether appellant was the first to arm himself in the fight.2
Appellant testified that he acted in self-defense. He said he had gone to Kennedy Street that night to meet someone, had gotten lost, and was walking down the street looking for his destination when Rosales and Fuentes-Lazo called him over and Rosales accused him of hitting his car. Appellant admitted he had been drinking prior to the altercation and testified he “might have” damaged the car but did not remember doing so. Appellant said he tried to calm the two men down, but when Rosales opened the trunk of his car, appellant feared he was going to pull out a weapon. Then, appellant testified, he saw Fuentes-Lazo holding a knife. The rest of the incident, he said, “happened so quick” — he “got hit” by Rosales and knocked to the ground; he simultaneously knocked the knife from Fuentes-Lazo‘s hand; and he picked the knife up and “just reacted” to save his own life by fighting with and stabbing Fuentes-Lazo before fleeing.
In his direct examination, appellant acknowledged his prior assault conviction in Maryland. Defense counsel then asked appellant a series of questions regarding his intentions on the night of the stabbing, including:
Q: During this event, between the time when you were at the trunk of the car until, as you say, you were on the ground, did you ever form an intent, a plan in your mind to hurt somebody? A: No.
Q: Did you ever form an intent or plan in your mind to kill somebody?
A: No, no, I would never do that.
This answer was followed by more questions of a similar nature, to each of which appellant responded in the negative.3
At the close of appellant‘s direct examination, the prosecutor asked for a bench conference, in which he asserted that appellant had “brought his character into issue” by testifying he “would never do anything like that.” Therefore, the prosecutor argued, appellant had “opened the door” for the government to “attack that character” by impeaching appellant with the facts of his Maryland assault that showed he actually had done “something like that.”
Defense counsel objected that “get[ting] into the details” of that conviction would go “beyond the purpose” of impeachment with a prior conviction, and that the government could sufficiently impeach appellant by re-eliciting the fact of his prior conviction and that it was for a first-degree assault. The court agreed with the government, however, explaining that:
the Government is seeking to impeach not just [appellant‘s] general character or credibility [with] a prior conviction, but [also] the assertion he never would have done something like that, namely stabbing another individual intentionally with a knife.
Because appellant‘s Maryland first-degree assault conviction “in and of itself” did not reveal that he used a knife, the court permitted the government to elicit that fact from appellant but admonished the prosecutor not to “dwell” on it. The court limited the cross-examination to “[j]ust simply the nature of the prior conviction and the fact there was a knife involved.” Explaining that he would refrain from objecting during the government‘s cross-examination in order not to highlight it, defense counsel reiterated his objection to the court‘s ruling. The court agreed that the objection was “noted for the record.”
The government then began its cross-examination:
Q: Mr. Romero, you mentioned on direct that you had a prior conviction for first degree assault in Maryland from 2013, right?
A: Yes, that is correct.
Q: You also said that when you were asked the question of would you ever, did you ever mean to harm anyone here, your answer was no, I would never do that, right?
A: Yes.
Q: That‘s not true, is it? The 2013 case involved your stabbing someone multiple times, didn‘t it?
A: No, I don‘t remember the question.
Q: Did the case involve you stabbing someone multiple times or not? That‘s
the only question I have for you right now. A: Yes.
The cross-examination then turned to other matters.
Before closing arguments and the court‘s final charge to the jury, the parties and the court discussed whether the jury should receive a specific instruction to consider the prior stabbing testimony only for impeachment purposes and not as propensity evidence. Defense counsel preferred that the court give only the “standard instruction” regarding impeachment by prior conviction, so as not to “highlight” again the similarities between the two crimes. Acceding to appellant‘s wishes, the court instructed the jury that appellant‘s
prior conviction is admitted into evidence solely for your consideration in evaluating his credibility as a witness. The evidence that he was convicted of a crime in the past is not evidence that Christian Romero is guilty of the offense charged in this case, and you must not draw such an inference.
In addition, the court warned the prosecutor against referring to appellant‘s prior assault conviction and its nature in closing argument.4 So warned, the prosecutor did not mention the underlying facts of appellant‘s conviction to the jury, but he did tell the jury that “[w]hen deciding credibility of the defendant you can take into account his prior conviction and only for that reason can you use that prior conviction.”
The jury expressed a need for more guidance from the court on this subject, however. On the morning of the first day of its deliberations, the jury sent a note to the court asking, “May we consider the nature of Christian Romero‘s prior
conviction as establishing (or not) a pattern of behavior, or only to interpret his credibility/testimony?” With the parties’ approval, the court sent the following response to the jury:
Mr. Romero‘s prior conviction is admitted into evidence solely for your consideration in evaluating Mr. Romero‘s credibility as a witness. You may not consider the prior conviction as establishing a pattern of behavior. The evidence that he was convicted of a crime in the past is not evidence that Christian Romero is guilty of the offense charged in this case and you must not draw such an inference.
The following morning, the jury convicted appellant of second-degree murder while armed.
II.
Appellant contends the trial court abused its discretion in allowing the jury to learn his Maryland assault conviction was for a stabbing. Appellant makes two main points.
First, he denies he said anything on direct examination that justified his impeachment with the facts underlying his prior assault conviction. Appellant argues that the court and the government mischaracterized
Second, appellant contends, even if his statement could be said to have opened the door to impeachment with the fact that he stabbed the victim of his prior assault multiple times, the court still should have precluded the prosecutor from eliciting that fact on cross-examination because it was substantially more prejudicial than probative. There was too great a risk, appellant argues, that the jury would use the prior stabbing as proof of his propensity for violence — a risk confirmed by the jury‘s note inquiring whether it could consider the prior stabbing as evidence of a “pattern of behavior.”
The government argues that appellant did not so “finely parse” his testimony, and that its cross-examination was proper — under the doctrine of curative admissibility — to correct the false and misleading impression appellant conveyed that he was not the kind of person who could have committed the homicide for which he was on trial. In addition, the government argues, appellant essentially conceded at trial that he had opened the door to cross-examination regarding the nature of his Maryland offense, and that we therefore should review his claim only for plain error.
We turn first to the question of our standard of review. We think appellant did forfeit his claim that the trial court misconstrued his testimony that he “would never do that.” At trial, appellant did not object at any point to the court‘s expressed understanding of his statement as denying he would ever intend to stab another person with a knife (as opposed to a denial that he would intend to kill someone, or an assertion limited to his mental state on one particular night).5 Nor did appellant
argue for an alternative, narrower understanding of what he said. His claim that the court misconstrued the import of his testimony is subject, therefore, to review only for plain error.6
statement itself was categorical and not limited to his state of mind on a specific occasion, and it came amidst a series of questions variously asking appellant whether he intended to “hurt,” “harm,” or “kill” anyone. If the court did err in interpreting what appellant said as denying he would ever intend to stab someone with a knife, we cannot say the error was “obvious.”
Nonetheless, appellant preserved his objection to being cross-examined about the facts underlying his Maryland assault conviction to contradict his testimony that he “would never do that.” Defense counsel argued that “get[ting] into the details” of his Maryland assault would go “beyond the purpose” of impeachment with a prior conviction. In response to the argument that appellant‘s testimony had opened the door to cross-examination about those details, defense counsel contended that it would be sufficient for the government just to re-elicit appellant‘s conviction for assault. He reiterated his objection after the court disagreed and allowed the government to elicit from appellant the fact that his Maryland conviction arose from a stabbing. We are satisfied that appellant fairly apprised the court that he disputed the adequacy of the justification for invoking the doctrine of curative admissibility, and the court clearly understood that was the issue before it. We therefore review the trial court‘s ruling for abuse of discretion.8
Appellant‘s first-degree assault conviction itself was admissible for the limited purpose of impeaching his general credibility as a witness.9 Evidence of appellant‘s criminal conduct underlying that conviction was presumptively inadmissible, however. “It is fundamental that evidence of prior bad acts independent of the crimes charged is inadmissible to show the defendant‘s disposition or propensity to commit the charged offenses, from which the jury improperly could infer the defendant actually did commit them.”10 Such evidence “is excluded unless there is some ‘substantial, legitimate purpose’ for admitting it.”11
The doctrine of curative admissibility may supply a valid justification for admitting otherwise inadmissible evidence of a defendant‘s unrelated criminal conduct.
“[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a
great degree of deference to its decision.”13 Nonetheless, “judges are enjoined to exercise caution and restraint before relying on the curative admissibility rationale” as it is “‘dangerously prone to overuse,’ and the idea that the one side might ‘open the door,’ is often oversimplified.”14 Generally speaking, the “introduction of otherwise inadmissible evidence under shield of this doctrine is permitted only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.”15 We have emphasized that “[o]pening the door is one thing[,] [b]ut what comes through the door is another. Everything cannot come through the door.”16 Before allowing otherwise inadmissible evidence to be heard under the curative admissibility doctrine, trial courts are “required to determine if its probative value [is] substantially outweighed by the danger of unfair
prejudice”17 and should “consider the availability
In the present case, appellant‘s counsel asked him on direct examination, “Did you ever form an intent or plan in your mind to kill somebody?” Appellant answered, “No, no, I would never do that.” As we have discussed, this answer can be construed more or less broadly. At a minimum, it was a declaration by appellant
that he had never intended and “would never” intend to kill another person. Whether appellant realized it or not, this declaration put his character in issue in order to bolster his self-defense claim. Appellant implicitly relied on the government‘s presumptive inability to rebut his assertion of good character with the otherwise inadmissible evidence of his prior bad acts. Under our law, this was a prototypical example of door-opening. The government had good reason not to want appellant‘s declaration to go unanswered.
Appellant makes no real argument to the contrary. His claim that the door was not opened to evidence of his prior intentional stabbing is premised on the proposition that the earlier stabbing did not counter his assertion that he would never intend to kill somebody.
We disagree with that proposition. The fact the government elicited, that three years earlier appellant had stabbed a person multiple times, gives rise to the inference that, in that incident, he did intend to kill somebody.20 The specifics of the assault
known to the trial court (and not disputed by appellant) amply supported its decision to allow the cross-examination and enable the jury to fairly draw the inference of a homicidal state of mind: appellant stabbed the victim nine times, including three times in the neck and one time in the back, and punctured the victim‘s lung.
We are satisfied that the court appropriately concluded that the probative value of the limited inquiry it allowed was not substantially outweighed by the danger of unfair prejudice, and that the court properly took measures to avoid unfair prejudice to appellant.
The court considered and rejected appellant‘s only proposed alternative, which was simply that the government could highlight on cross-examination the bare fact of his Maryland first-degree assault conviction (something the jury already knew). The court concluded, and we agree, that this proposal would have done nothing to undermine his testimony that he “would never” intend to kill; only the facts underlying the conviction would have responded to that claim with adequate concreteness. In a case that turned in large part on
First, the court curtailed the extent to which the government could cross-examine appellant about the facts underlying his Maryland assault conviction. The government was able to elicit only that appellant stabbed the victim in that assault multiple times with a knife.23 The jury did not hear the gruesome details of the
offense that were surely probative of appellant‘s past intent to kill but also more prejudicial to him. Second, the court precluded the government from discussing appellant‘s prior assault conviction in its closing arguments, recognizing that to allow otherwise would “run[] too great of a risk that the jury would be considering that as propensity evidence.”24
Third, the court instructed and reinstructed the jury not to misuse the evidence of appellant‘s prior assault conviction.25 We recognize that the jury‘s note in this case revealed uncertainty, on the part of at least one juror, about whether the prior conviction could be used to draw an improper propensity inference. But the court emphatically responded to that note by telling the jurors that the prior conviction was “admitted into evidence solely for [their] consideration in evaluating Mr. Romero‘s credibility as a witness,” and that they “may not consider the prior
conviction as establishing a pattern of behavior” and “must not draw... an inference” that the conviction was evidence of appellant‘s guilt. “In the absence of any good
III.
We conclude that appellant opened the door to the admission of evidence of facts underlying his prior assault conviction to impeach his testimony that he would never intend to kill somebody. In light of the restrictions the trial court imposed on the prosecution‘s elicitation and use of those facts, and the court‘s cautionary instructions to the jury on its consideration of them, we hold the court did not abuse its discretion by allowing the government to cross-examine appellant about his having stabbed the victim of his prior assault multiple times. We affirm appellant‘s conviction for second-degree murder while armed.
Notes
As follows:
Q: When you came into the District of Columbia that night was it your intent to harm or kill anybody?
A: No.
Q: When you got involved in that fight when they first called out to you, was it your intention to harm or kill anybody?
A: No.
Q: When you were standing at your [sic] trunk was it your intention to harm or kill anybody?
A: No.
The court stated:
It [the prior stabbing] was directly impeaching of the statement that he made, which is why I allowed the Government to pose one limited question with respect to that. But... I would be concerned about highlighting that fact in your closing given the similar nature of the convicted offense and the crime with which he‘s currently charged.... The Government‘s whole closing argument is going to be to the point that Mr. Romero was not acting in self-defense, and so to make any reference to the prior conviction and the nature of the prior conviction runs too great of a risk that the jury would be considering that as propensity evidence.... So you‘re going to delete that and not make reference to that.
The prosecutor agreed to adhere to the court‘s directive.