Concurrence Opinion
concurring:
Nathaniel Thomas was convicted by a jury of simple assault.
I.
THE EVIDENCE
This case arose out of a quarrel between the defendant and Clarice Johnson, the mother of his four-year-old son, Tevin. According to Ms. Johnson, Thomas came to her home on May 25, 1999, ostensibly to give her some money in connection with Tevin’s preschool graduation. Later in the evening, Thomas began to interrogate Ms. Johnson regarding whether she had been seeing another man. Thomas appeared to Ms. Johnson to be “tripping” on crack cocaine; she denied, howevеr, that she used cocaine on the evening of the incident. Ms. Johnson testified that Thomas became angry, went to the kitchen, came back to the bedroom with a bowl in his hand, and threw some hot liquid at her, scalding her face, neck, and arms. Ms. Johnson sustained second degree burns on her face and arms.
Thomas’ account of the incident was quite different. According to Thomas, Ms. Johnson had asked him to bring her some crack cocaine. Thomas purchased some crack and brought it to Ms. Johnson’s home, together with a bottle of gin and, somewhat incongruously, some carrot juice. Thomas testified that the quarrel began while the two principals were smoking crack and drinking liquor together in the bedroom. According to Thomas, Ms. Johnson complained that “the shit wasn’t no good” and demanded that Thomas give her more cash. Thomas refusеd and Ms. Johnson, who is bigger than Thomas, became angry, pulled him onto the bed, and began to berate him. Thomas retreated to the kitchen and began washing dishes at
There were no other witnesses to the scalding incident. Ms. Johnson’s eighteen-year-old daughter, Celeste, testified that two of Thomas’ sisters subsequently telephoned her several times to urge that the charges against their brother be dropped. Ms. Johnson testified that Thomas told her thаt he was sorry for what he had done. He also wrote to her from jail, declaring his love and inquiring whether she would press charges. There was no claim that either Thomas or his sisters threatened Ms. Johnson to dissuade her from testifying.
Ms. Johnson was impeached with some arguably minor contradictions between her trial testimony and her grand jury testimony. After being given immunity, she admitted that she had threatened another woman for allegedly acting indecently around Thomas.
II.
LEGAL ANALYSIS
A. The replacement of Juror No. 1.
Thomas contends that the trial judge violated his “Fifth Amendment right to have his trial completed by a particular tribunal,” as well as his rights under Super. CtCrim. R. 24(c), by replacing a juror with an alternate before deliberations began. Even if the judge erred in this regard — an arguable question which need not be decided to resolve this appeal — the error was harmless.
The challenged replacement in this cаse occurred before the jurors began deliberating, and before any juror had been advised whether he or she was an alternate. The judge observed that Juror No. 1 appeared “totally exasperated by the fact that [counsel] were both speaking and that she is here.” She further stated that the juror was “speaking under her breath” while counsel were presenting their arguments and during the court’s instructions. Sensing from Juror No. l’s apparently angry demeanor and odd behavior that she probably would not be an attentive or impartial juror, the judge replaced her with an alternate. Thomas’ counsel vigorously objected to the juror’s removal, but he proposed no alternative course of action {e.g., a hearing on the juror’s qualifications).
Rule 24(c) directs the court to “replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” “The trial court is accorded substantial deference on [the decision whether to replace a regular juror] as a result of its superior ability to observe the demeanor of the juror and its familiarity with the proceedings.” Darab v. United States,
Nevertheless, Thomas’ contention that the judge abused her discretion in replacing Juror No. 1 is not implausible. Read literally, Rule 24(c) authorizes the removal of a juror only if the juror is “unable or disqualified” to perform her duties. The trial judge never made such a finding, at least explicitly. To be sure, muttering under one’s breath, both during closing argument and while the judge was charging the jury, may suggest inattention on the juror’s part, and a juror may properly be disqualified for being inattentive. Shreeves v. United States,
But even assuming, arguendo, that Juror No. 1 was not shown or found to be “unable ... to perform her duties” within the meaning of Rule 24(c), and that the judge therefore erred by replacing her, Thomas must nevertheless establish prejudice. See, e.g., United States v. Nelson,
Thomas has presented no evidence whatever of prejudice. Indeed, his attorney passed on five of defense’s ten peremptory challenges to the jury proper, and he also declined the opportunity to strike the alternate who ultimately replaced Juror No. 1, thereby at least implicitly expressing satisfaction with that juror. See Darab,
B. The restriction of the cross-examination of the complaining witness.
During her testimony, Ms. Johnson vehemently denied that she assaulted Thomas with the bowl of hot liquid; on the contrary, she testified that the defendant assaulted her. Ms. Johnson likewise denied that she was using crack cocaine at the time of the scalding incident. Thomas claims that the trial judge committed reversible error by precluding the defense from cross-examining Ms. Johnson regarding two alleged reasons for her to he: apprehension that she would go to prison if she admitted assaulting Thomas or using unlawful drugs,
“While exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination, Davis v. Alaska,
In the present case, Ms. Johnson’s underlying motive to he was, in my opinion, surely obvious to any reasonably intelligent juror. If Ms. Johnson had acknowledged assaulting Thomas or using crack cocaine, or both, she would have admitted criminal conduct for which she could have been incarcerated. Indeed, the defense so argued to the jury without objection. Moreover, from prison, it would plainly have been difficult, if not impossible, for Ms. Johnson to maintain custody of the
C. The cross-examination of Thomas regarding alleged other “bad acts. ”
During Thomas’ cross-examination, the prosecutor inquired without objection whether crack cocaine affected Thomas’ demeanor. Thomas initially replied that “it makes me feel good” and that it “doesn’t affect my behavior where I’m going to become violent.” The prosecutor pressed on, and she asked Thomas, again without objection, whether there had ever been an occasion when crack did cause him to behave in a violent manner. Thomas admitted that there was one such occasion, but he again denied that crack cocaine made him violent. The prosecutor asked about the one occasion to which Thomas had referred, and, there still being no objection, Thomas said that he got “bust [sic] in the head” because he was in the wrong place at the wrong time.
The prosecutor then inquired whether the “bust in the head” incident occurred in 1998, when, according to the prosecutor, Thomas punched his sister Dorothea and his nephew. Thomas replied that the “bust in the head” incident was a different оne from the encounter with his sister and nephew. The prosecutor then pressed Thomas about the 1998 incident, at which point the defense objected for the first time, claiming that the question was not relevant. The judge overruled the objection. Thomas then described the 1998 incident as one in which his sister was intoxicated: “[T]he bull just came out of Dorothea.” Thomas admitted grabbing his sister, but he did not acknowledge that he had punched either his sister or his nephew.
On appeal, Thomas argues that the prosecutor “baited” him into putting his character into evidence, and that she then elicited “other bad acts” evidence to destroy Thomas’ character. The “baiting” charge is not without substance, but there was nó objection to the “baiting” questions until after the claim of good character had been made.
In sum, the judgment should be affirmed.
Notes
. D.C.Code § 22-504. All references to the District of Columbia Code in this opinion are to the 1996 Supplement to the 1981 edition.
. D.C.Code § 22-504.1.
. D.C.Code §§ 22-506 and-103.
. D.C.Code § 22-502.
. At the trial, Ms. Johnson originally claimed that she could not recognize Thomas, her paramour for some eight years. It appears, however, that she did not bring her glasses to court, and she was able to recognize Thomas from close up.
. Where, as here, the local rule and the fеderal rule contain the same language, the construction of the federal rule by a United States Court of Appeals is persuasive authority as to the proper interpretation of the local rule. See, e.g., Peddlers Square, Inc. v. Scheuermann,
. In fairness to the trial judge, I note that counsel did not bring the language of Rule 24(c) to the court’s attention. Moreover, the rule is arguably somewhat counter-intuitive; where, as here, there were two persons available to serve on the jury (Juror No. 1 and an alternate whom no party had challenged), and where one of the two appeared to act in a peculiar and perhaps irrational manner, it would not be unreasonable to suppose that the judge was authorized to disqualify the individual who acted peculiarly, especially where, as in this case, the jurors had not been told who the alternates were. But be that as it may, Juror No. 1 could properly be removed only if the requirements of Rule 24(c) were satisfied.
. I recognize that, in most cases, it will be difficult to prove specific prejudice stemming from a Rule 24(c) violation. See United States v. Donato, 321 U.S.App. D.C. 287, 291,
. Thomas also contends on appeal (1) that the trial judge should have held a hearing to determine whether Juror No. 1 was "unable or disqualified/' and (2) that the judge's disqualification of Juror No. 1 in effect gave the prosecution an additional peremptory challenge. Neither of these claims was presented to the trial court, and Thomas has not shown that the judge committed plain error by failing to hold a hearing sua sponte or by providing the government with an extra strike. Contrary to Thomas’ position, "errors adversely affecting the exercise of peremptory challenges [are] not structural errоrs” (within the meaning of Arizona v. Fulminante,
. Thomas’ attorney asked Ms. Johnson several times whether she knew that she could get into trouble with the police if she admitted committing an assault or using crack cocaine. Ms. Johnson answered, somewhat unresponsively, that she had not done anything wrong. After some repetition, the judge sustained an objection to further questioning on this subject. As the government notes in its brief, "[gliven Ms. Johnson's responses to defense counsel's questioning, there was really no prospect that additional questioning would have yielded an admission that the witness did, in fact, fear that her conduct on May 29 would land her in jail.”
Thomas claims that the judge should have overruled the objection and that the jurors should have been permitted to assess Ms. Johnson’s demeanor during the further questioning on the subject of her possible fear of incarceration. But the jury had ample opportunity to observe Ms. Johnson’s demeanor, and the judge did not abuse her discretion by holding, in effect, that the subject had been sufficiently explored and that further ques
. The defense proffered that two other children had been removed from Ms. Johnson’s home, possibly on account of her alleged drug use.
. As the Supreme Court explained in Van Arsdall,
. Even if the judge’s restriction on cross-examination constituted an abuse of discretion — and I am satisfied that it did not — I am of the opinion, in light of the ample evidence of motive to lie, that any hypothetical error was harmless. There is no reasonable possibility that Ms. Johnson would tell the truth even if it meant going to prison (and probably losing custody of her children), but would lie in order to avoid impairing her chances of retaining or regaining custody. At the very least, the trial judge could reasonably so conclude.
. On direct examination, Thomas had testified in substance that Ms. Johnson tended to be aggressive and that he attemptеd to keep things peaceful and avoid trouble.
. Thomas also argues that the testimony about the telephone calls made by his sisters should not have been received in evidence. The prosecution did not claim, however, that these calls were threatening. Even assuming, arguendo, that this evidence was erroneously admitted, its admission was harmless. Thomas' attorney could have requested a limiting instruction regarding the purpose for which evidence of the calls could be considered by the jury, but counsel made no such request.
Concurrence Opinion
concurring.
I agree with Judge Schwelb’s resolution of the juror replacement issue and appellant’s other contentions, but I agree with Judge Ruiz’s conclusion — though not all of her reasoning' — -that the trial judge imposed an unconstitutional limitation on the cross-examination of Ms. Johnson. Unlike the dissent, however, I am convincеd that that error was harmless beyond a reasonable doubt, and I therefore join Judge Schwelb in voting to affirm.
The trial judge erred in disallowing all questioning of Ms. Johnson about whether she feared that the outcome of the trial — and a possible focus by the authorities on her own conduct — would affect her ability to regain (or retain) custody of her children. However much or little the witness feared being charged criminally for her actions on the night in question, her possible concern that an ongoing dispute over the custody of her children would be influenced by whether authorities believed her description of the violent events or appellant’s was a separate and “appropriate [subject of] cross-examination designed to show a prototypical form of bias on the part of the witness.” Delaware v. Van Arsdall,
Nevertheless, in my view we “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. at 681,
In short, Ms. Johnson’s character for potential violence was before the jury, and, as Judge Schwelb explains, her incentives to shift the blame to appellant were explored to a considerable extent. “The jury had ample reason to disbelieve [her account] if they were so inclined.” McCoy v. United States,
Dissenting Opinion
dissenting:
I believe that the trial court erred in excluding the defense’s proffered cross-examination of the government’s key witness to establish her bias and motive for testifying as she did.
1. Preclusion of cross-examination on neglect proceedings
The trial court did not permit counsel to question the complaining witness as to whether she was afraid that she might “get in trouble with the police”
The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the opportunity for effective cross-examination of adverse witnesses. See Delaware v. Van Arsdall,
In considering the admission of proposed cross-examination for bias, the trial court performs its usual role of weighing the proffered evidence’s probative value against its prejudicial effect on the fair and efficient conduct of the trial, and need not permit cross-examination on topics of marginal relevance simply upon the possibility that bias or prejudice might be disclosed. See Greene v. McElroy,
In this case, the trial court applied an incorrect legal standard in excluding cross-examination about the witness’s fears stemming from the ongoing neglect case invоlving her children. By focusing on whether the complaining witness’s aggressive conduct toward appellant would be “a basis” to establish neglect toward her children, the trial court missed that what is relevant in evaluating bias is not what the law or a judge considers sufficient to prove neglect, but the witness’s subjective belief. “[I]t is this belief that can produce bias.” Scull v. United States,
Because cross-examination was precluded, the witness’s understanding of what admissions would expose her to criminal liability was not explored. Lay persons frequently have mistaken notions about the law, and this could be particularly so in cases of domestic violence, where lay persons are uncertain about the reach of the criminal law into what many consider to be their private affairs. Nor do we know what the witness thought her criminal exposure might be if she were to admit to being something more than the passive victim of an assault. The outcome in this case, for example, shows that appellant was acquitted of the felony charges and convicted only of simple assault, for which he was sentenced to 180 days incarceration. Of particular importance in this case would be the witness’s understanding of the risk of conviction in a criminal proceeding where the government has the burden of proving guilt beyond a reasonable doubt against the prospect of continued intervention by child welfare agencies — particularly once neglect has already been found — where the standard is focused on the “best interest of the child.” D.C.Code § 16-2320(a) (2001). There is much less tolerance for parental misbehavior in the child neglect system than in a criminal proceeding.
The witness’s motivation to he to avoid inculpating herself in this case was, as Judge Schwelb says, “surely obvious to any reasonably intelligent juror.” See ante at 32. We cannot presume that if the witness would lie, however, she would do so only and to the same extent to avoid implicating herself in the criminal offense, and not because of concerns related to the child neglect proceeding.
Bias is present in every case where the witness’s own potentially criminal conduct is implicated in the charged offense. Precisely because it is so commonplace, that kind of bias is likely to be expected by the jury. It is more likely to be discounted in the jury’s assessment of the witness’s credibility, however, where the witness is testifying on behalf of the government — as in this case — and in the eyes of the jury benefits from an aura of credibility created by the government’s decision to charge the other person involved in the fray. Thus, there is added importance to presenting concrete information so that the jury can evaluate the precise pressures at work on the witness. The bias that defense counsel was attempting to reveal in this case through cross-examination about the neglect proceeding was specific and more, unusual. It could have had real impact because it involved something not obvious to the jury, that was not part and parcel of what the jurors would normally have expected in a he said-she said situation such as this. In this case there was reason to believe that the witness’s understanding about the workings of the neglect system and her fear of how her testimony in this criminal case might affect decisions concerning her children in the neglect case, would give her a strong motive to lie or, at least, minimize her culpability in order to “look good” in the eyes of those judging her in the context of the neglect case. This motivation is akin to the well-reeog-nized bias of a witness in favor of the prosecution in the hope of obtaining better treatment for her own crimes in a different case either while on probation, see Davis,
The witness’s fear — whether reasonable or not — that her actions in the melée with appellant might influence decisions concerning her children would have given the jury important insight into a specific force motivating her testimony — and the strength of that motivation. The fear of losing custody of children and the stigma associated with it cannot be assumed to be of less importance than the fear of conviction and even incarceration, as each deals with different social values. See Commonwealth v. Piedra,
Any concern the trial judge reasonably had about jury confusion or taint from evidence that Johnson had been adjudged a negleсtful mother could have been addressed by a limiting instruction on the proper use of the evidence. All that the jury needed to know was that there was a pending neglect proceeding and, without going into unnecessary detail, that Johnson feared the impact that her testimony in the criminal case could have on that proceeding. Complete exclusion “bears a very heavy burden of justification when lesser restrictions are available.” Brown v. United States,
2. Harm
Restrictions on cross-examination require reversal depending “upon the scope of cross-examination permitted by the trial court measured against our assessment of the appropriate degree of cross-exаmination necessitated by the subject matter thereof as well as other circumstances that prevailed at trial.” Flores v. United States,
On this record, I must have a reasonable doubt because Johnson’s testimony was the key to the government’s case. She and appehant testified to completely different versions of events, and there was no other eyewitness testimony. Although Johnson sustained more serious injuries, appehant also was burned on his arm— injuries that could be explained by either one’s version of the incident. Moreover, there was circumstantial evidence to support appehant’s story: Johnson had behaved aggressively toward appehant on previous occasions; out of jealousy she had threatened other women in the past; her version of events was inconsistent and implausible; and she previously had denied that appehant assaulted her in this instance. Renae Dreher, an impartial witness, testified that Johnson had a reputation for violence and dishonesty. The admission of the proffered bias evidence was thus critical to the defense case, which hinged on showing that Johnson, who was shown to have been untruthful in the past,
I would reverse and remand for a new trial.
. I join Judge Schwelb’s opinion with respect to the other issues raised on appeal.
. Judge Farrell agrees that the limitation on cross-examination was constitutional error, but affirms the conviction because he considers the error to have been harmless.
.Defense counsel asked the witness:
... My question I want you to answer is you know you could get in trouble if the police found out you did something wrong on May 29?
. According to Judge Schwelb, “[tjhere is no reasonable possibility that Ms. Johnson would tell the truth even if it meant going to prison (and probably losing custody of her children), but wоuld lie in order to avoid impairing her chances of retaining or regaining custody.” See ante at 32. Under the relevant statute, however, incarceration does not automatically lead to loss of custody. See D.C.Code § 16-2301(9)(c) (a neglected child is one “whose parent ... is unable to discharge ... her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity”).
. The essence of Johnson s in-court testimony and her reports to the police and doctor at the time was the same: that appellant had become angry and thrown a hot liquid at her, scalding her face, neck and arms.
Lead Opinion
The judgment is affirmed for the reasons stated in Judge Schwelb’s lead concurring opinion, except with respect to the issue discussed in Judge Farrell’s concurring opinion and in Part I of Judge Ruiz’ dissenting opinion. As to that issue, the judgment is affirmed for the reasons stated in Judge Farrell’s opinion and in footnote 13 to Judge Schwelb’s opinion.
Affirmed.