Brown v. United States

763 A.2d 1137, 2000 D.C. App. LEXIS 280, 2000 WL 1862688

• Court: District of Columbia Court of Appeals
• Decided: December 21, 2000
• Docket: 99-CM-241
• Status: Published

Opinions

BELSON, Senior Judge:

Appellant Latasha Brown was found guilty in a non-jury trial of one count of simple assault.¹ Appellant argues that the trial court committed reversible error in limiting her cross-examination of a police officer who took part in the arrest and precluding redirect examination of appellant’s only witness. We disagree and affirm.

I.

On the evening of November 27, 1998, Steven Williams telephoned the police and requested assistance in picking up his children from 1641 V Street, Southeast, where their aunt, appellant Latasha Brown, resided. Williams had been issued a restraining order which barred him from any contact with the mother of his children. He asked for the help of the police to avoid any possible confrontation when picking up his children, of whom he had custody. Officers Joseph Cabillo and Arleen Mars-ham-West responded to assist him.

While Williams remained outside of the building in which appellant resided, the police knocked on the apartment door and identified themselves to the occupants. Appellant exited the apartment building and walked toward Williams. She was “very loud and boisterous, fussing and cursing at [Williams].” Despite several requests by the police officers to calm down, appellant continued to curse at Williams and refused to go back into her apartment. Appellant swung at Officer Cabillo with a closed fist when he attempted to arrest her for disorderly conduct. He was able to avoid being struck by ducking down. Appellant’s sister then jumped on Officer Cabillo’s back to prevent him from handcuffing appellant. Officer Marsham-West subdued appellant’s sister. Officer Cabillo was then able to handcuff appellant and arrest her.

II.

Appellant first contends that the trial court erred in limiting the cross-examination of Officer Cabillo regarding whether he complied with proper police procedure after an assault on a police officer. Appellant wished to explore three matters: (1) the extent of paperwork that Officer Cabil-lo completed following the incident; (2) whether the officer interviewed any witnesses after the arrest; (3) and the officer’s familiarity with Metropolitan Police Department General Order 701.3 (“MPD General Orders”) regarding police procedures for handling assaults on police officers. According to defense counsel, the purpose of such questioning was to establish bias (a matter not raised on appeal) and to call into question the credibility of the arresting officer. Before this court, appellant asserts that Officer Cabillo failed “to locate and take statements from all witnesses to an assault on a police officer” as required by the general order and this failure reflected on the officer’s credibility and was “evidence that the assault never took place.”

An evidentiary ruling of the trial court is reviewed for abuse of discretion. This court will set aside an exercise of trial court discretion “only upon a showing of grave abuse.” Taylor v. United States, 661 A.2d 636, 643 (D.C.1995) (quoting Irick v. United States, 565 A.2d 26, 39-40 (D.C.1989)); see Irving v. United States, 673 A.2d 1284, 1290 (D.C.1996). Accordingly, with regard to cross-examination, “the extent of that examination is within the sound discretion of the trial court, and we will reverse only on a showing of an abuse of that discretion.” Deneal v. United States, 551 A.2d 1312, 1315 (D.C.1988) (citations omitted); Jones v. United States, 516 A.2d 513, 517 (D.C.1986) (holding the extent of cross examination is within the sound discretion of the trial court). “[W]e limit our inquiry to whether the trial court’s decision was fair and rational.” Taylor, supra, 661 A.2d at 643.

Applying the above standard, we find no abuse of discretion in the trial court’s evidentiary ruling. It is important to observe that the trial court did not preclude “an entire line of relevant cross-examination” as claimed by appellant. The trial court instructed defense counsel that he could not question Officer Cabillo “generally [about] what his understandings are of the regulations and generally what police practice is.” But at the same time, the court permitted counsel to establish through Officer Cabillo that he did not interview any witnesses and advised counsel that he could question Officer Cabillo further about any paperwork he completed relative to the case, a matter he had already covered without objection. The court also permitted the same questions to be asked of Officer Marsham-West.

In Greer v. United States, 697 A.2d 1207, 1211 (D.C.1997), we ruled that defense counsel may permissibly adduce evidence that the police conducted an investigation in a manner that departed from standard procedures. But we did not indicate in Greer that such evidence must always be admitted, and declined to rule whether, in the circumstances of that case, the curtailment of cross-examination was an abuse of discretion. Id. at 1212. Defense counsel argued at trial that the officer’s “failure to follow certain procedures ... goes to his credibility and bias as to whether or not this incident even took place.” The court determined that this line of questioning was “too tangential, too remote,” and was not probative as to whether appellant actually committed the assault. This evidentiary ruling was within the discretion of the trial judge and will not be overturned. Cf. Price v. United States, 697 A.2d 808, 817 (D.C.1997) (ruling trial court did not abuse its discretion in rejecting defense effort to establish officer’s bias and lack of credibility by showing he had failed to complete two forms required for use of confidential funds).

III.

Appellant’s second contention is that the trial court abused its discretion by precluding redirect examination of appellant’s only witness, Troy Harris. After counsel for the government completed his cross-examination of Harris, he stated that he had no further questions. The trial judge then said “Thank you. You may step down .” Immediately thereafter, defense counsel said “Actually, I have a brief redirect, your honor,” at which point the trial judge said “call your next witness. Step down. Call your next witness.” Appellant’s trial counsel did not attempt to make any proffer concerning the nature of the redirect examination he wished to conduct. Appellant asserts for the first time on appeal that redirect of Harris was necessary in order to rehabilitate his credibility by “clarifying Mr. Harris’s reasons for coming to court, his motives for testifying, and the extent to which his desire to help appellant or her sister affected the substance of his testimony.”

“[Rjedirect examination is limited to matters which were first raised on cross-examination, to which the opposing party is merely responding on redirect.” Dobson v. United States, 426 A.2d 861, 365 (D.C.1981) (quoting Singletary v. United States, 383 A.2d 1064, 1073 (D.C.1978)); see Hilton v. United States, 435 A.2d 383, 389 (D.C.1981). “The reply on redirect may take the form of explanation, avoidance, or qualification of the new substantive facts or impeachment matters elicited by the cross-examiner.” 1 McCoRmick on Evidence § 32, at 119-20 (John W. Strong ed., 5th ed.1999) (citations omitted).

In view of the nature and purpose of redirect examination, there is no absolute right to engage in it. It cannot be used to revisit all the matters covered in the preceding cross-examination. This differentiates it from cross-examination, which can be undertaken as a matter of right concerning all the subjects covered in the preceding direct examination, as well as matters affecting credibility.² See Grayton v. United States, 745 A.2d 274, 279-281 (D.C.2000); Jones v. United States, 516 A.2d 513, 517 (D.C.1986); 1 McCormick, supra, § 19, at 88, § 32, at 119. On the other hand, there can be said to be a right to redirect provided counsel proposes to deal with matters which first came up in cross-examination. See 1 McCormick, supra, § 32, at 119. Such matters giving rise to a right to redirect cover a broad range, including factual matters not brought up on direct, see Johnson v. United States, 298 A.2d 516, 518 (D.C.1972), and evidence undermining the credibility of the witness, see Stitely v. United States, 61 A.2d 491, 492 (D.C.1948). See also Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334 (1947) (error to exclude evidence on redirect that would have explained impeachment evidence adduced on cross examination); Villineuve v. Manchester Street Ry., 73 N.H. 250, 60 A. 748, 750 (1905) (when writing inconsistent with direct testimony introduced on cross, error to deny opportunity to explain inconsistencies on redirect); 1 McCormick, supra, § 32, at 118-121.

Although the judge in this matter had the discretion to limit the redirect examination of Harris, see Hairston v. United, States, 497 A.2d 1097, 1103 (D.C.1985), it would have been error to exclude all redirect unless counsel was unable to provide any basis for redirect. Therefore, it was incumbent upon counsel, when he wished to proceed with redirect to make, or attempt to make, a proffer of the testimony that was expected, explaining to the judge the basis of his request for redirect examination. Cf. Jones, supra, 516 A.2d at 517-18 (defendant failed to preserve claim of error because proffer insufficient for review by court). “[Although confronting a judge after he has ruled may be risky business, defense counsel should have proffered the testimony he expected to elicit.” United States v. Walker, 146 U.S.App.D.C. 95, 99, 449 F.2d 1171, 1175 (1971). As we stated in McBride v. United States, 441 A.2d 644, 656 (D.C.1982), “[w]hen a trial court balks at admitting certain evidence, counsel normally should make an offer of proof.” We went on to observe that this jurisdiction has consistently adhered to the following principle:

A ruling of the court that a question propounded by a party to his own witness should not be answered must be followed by an offer of the testimony expected, or by something that would clearly indicate it, if it is desired to reserve the point for review by the court.

Id. (quoting McCurley v. National Savings & Trust Co., 49 App.D.C. 10, 12, 258 F. 154, 156 (1919) (emphasis added)).

While failure of counsel to make a proffer may be excused if the thrust of the excluded testimony had been made apparent by what had gone before, see id., in this case there was no indication of the questions defense counsel would have presented to Harris, much less the answers those questions would have produced. We cannot agree with the dissent’s suggestion that it was apparent that “defense counsel would attempt to counteract the imputation of bias.” (Dissent at p. 1145 & n. 4). Defense counsel could well have regarded the bias cross-examination as so routine that he would have been more interested in examining about some other matter covered in cross-examination which might or might not have provided a proper basis for redirect. As a result of defense counsel’s failure to make a proffer, the record affords no basis for evaluating whether Harris’ responses to questions dealing with his motivation for testifying would have been likely to affect the trial court’s finding of guilt.

We cannot conclude, however, that the defense’s failure to make a proffer burdens it with the requirement of establishing plain error in order to prevail on appeal without first considering whether the trial judge’s conduct demonstrated that he “was manifestly unwilling to entertain a proffer of relevant evidence, contrary to his responsibility.” McBride, supra, 441 A.2d at 657. Having considered the trial record, we conclude that the trial judge did not exhibit such an unwillingness.

As we have stated, the first thing the trial judge said after government counsel stated he had no further questions was “Thank you. You may step down.” Immediately thereafter, defense counsel said “Actually, I have a brief redirect, your honor,” upon which the trial judge said “call your next witness. Step down. Call your next witness.”

The trial judge’s initial statement “Thank you. You may step down,” was a routine and perfunctory statement that trial judges commonly make when it appears that a witness has finished his or her testimony. It cannot be taken to be, of itself, any indication that the court would not entertain a proffer regarding proposed redirect.

The trial judge’s response to the defense counsel’s subsequent statement that he had a brief redirect — that the witness should step down and that counsel should call his next witness — was inappropriate. The judge should have sought or at least awaited a proffer regarding redirect. But under the circumstances, we cannot agree that the judge’s conduct showed that he was manifestly unwilling to entertain a proffer. The circumstances here are to be contrasted with those in McBride, supra, where the court sustained an objection to a line of cross-examination and then refused counsel’s request to make an offer of proof.

The trial judge did not state that he would not accept a proffer, either after Harris’ cross-examination or at any other point in the trial. The record contains no indication that the trial judge had issued any general prohibition against proffers, comparable to a trial judge’s announcing in advance that he would not normally permit any objection during opposing counsel’s closing argument, a practice upon which we commented in Hammill v. United States, 498 A.2d 551, 554-55 (D.C.1985).

To the contrary, counsel had been quite spirited in advancing arguments on behalf of appellant on evidentiary matters earlier in the trial. We note in particular that when the judge and defense counsel resumed, after a lunch break, their already length colloquy on the matter of questioning the arresting police officer regarding police orders applicable to assault on police officer cases, the judge stated that the defense counsel’s proposed line of “credibility and bias” examination was “too remote. It’s too remote. I won’t let you do it for that reason.” When the defense counsel attempted to resume the argument, the judge said “Ruling against it. If you are doing it for purposes of credibility, I think it is too remote ... not probative enough of any issue here.... ”

Undeterred, defense counsel continued with his argument stating, “and it also goes to bias.” Counsel then went on for several more sentences in an effort to persuade the judge to let him examine on the orders. The trial judge listened to counsel’s further argument and did not admonish counsel for continuing his advocacy after the judge had ruled.

While the trial judge showed by his statements to both counsel his interest in moving the trial along with expedition, he never prevented á proffer by either counsel, nor did he admonish counsel for persistent efforts to argue the law. Having reviewed the entire trial record, we conclude that the trial judge did not indicate to counsel a manifest unwillingness to entertain a proffer regarding redirect.

As defense counsel failed to preserve the issue of denial of redirect by timely proffer, we review for plain error. Cf. McBride, supra, 441 A.2d at 655 (because defense counsel adequately preserved issue for appeal review was for harmless error not plain error). Under the plain error standard “the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” Watts v. United States, 362 A.2d 706, 709 (D.C.1976). Appellant has failed to demonstrate that degree of prejudice. While appellant asserts that “redirect was critical to the defense case,” she cannot substantiate that claim. In the absence of a proffer, this court cannot evaluate how the redirect testimony of Harris might have altered the outcome.

Affirmed.

1 . D.C.Code § 22-504 (1996 Repl.).

2 . Cross-examination is, however, "delimited by the scope of direct examination.” Hart v. United States, 538 A.2d 1146, 1148 (D.C.1988). "Therefore, the trial court should permit cross-examination to explore matters which tend to contradict, modify, or explain testimony given on direct” Id.