Paul Coles v. United States

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Notice: This opin ion is subjec t 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 b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 00-CF-1570 P AUL C OLES, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (F-6099-97) (Hon. Natalia M. Combs Greene, Trial Judge) (Submitted April 11, 2002 Decided October 10, 2002) Brenda C. Wagner, appointed by the court, filed a brief for a ppellant. Roscoe C. Ho ward , Jr., United States Attorney, and John R. Fisher, Elizabeth Trosman, and Janet E. Albert, Assistant United States Attorneys, filed a brief for appellee. Before S CHWELB and R UIZ, Associate Judges, and K ING, Senior Judge. Opi nion of th e cou rt by Associate Judge S CHWELB . Diss entin g opinion by Associate Judge R UIZ at p. 11. S CHWELB , Associate Judge: After a jury deadlocked at his first trial, Paul Coles was retried on charges of arm ed robbery 1 and possession of a firearm during the commission of a crime of violence (PFCV)2 relating to the robbery at gunpoint of Redoduane Abderrafe. The jury at his second trial found Coles guilty on both counts, and he now appeals. Coles primary contention is that the trial judge committed reversible error by restricting Coles 1 D.C. Code §§ 22-2901, -3202 (1996), recodified as D.C. Code §§ 22-2801, -4502 (2001). 2 D.C. Code § 22-3204 (b), recodified as D.C. Code § 22-4504 (b) (2001). 2 cross-examination of a prosecution witness. We disagree and affirm. I. THE EVIDENCE At Coles trial, the prosecution presented evidence which, if credited, established that late at night on July 30, 1997, two men robbed Abderrafe at gunpoint as he walked down a street in Georg etown sh ortly after he com pleted his work shift as a waiter at a local restaurant. After the robbers took the tips that Abderrafe had earned, one of the men ordered him to [g]o don t turn your back. Just g o straight. T he two m en then fle d on foo t. Abderrafe continued to walk as instructed, but almost immediately he encountered Officer Joseph Thomas of the M etropolitan P olice Dep artment. A bderrafe to ld Officer Thomas that he had been robbed, and he described one of the two robb ers to the off icer as not to o tall, not too short and as wea ring tan m ilitary pants and [a ] white shirt. B ased on th is information, Officer Thomas broadcast a lookout over the police radio. Several police officers working in the Georgetown area monitored the broadcast. After pu rsuing seve ral other lead s, they spotted an d began to chase a man who discarded a speed loader, a wallet, a black stocking cap, and some p ersonal docume nts shortly before he was apprehended. The man turned out to be Paul Coles, the appellant in this case. Officers also recovered a handgun which Coles had allegedly dropped earlier in the chase. On July 22, 1998, a grand jury returned a nine-count indictment against Coles, 3 charging him with involvement in three separate robberies, one of which was the robbery of Mr. Abderrafe. Coles first trial was held before Judge Rhonda Reid Winston from October 5 to October 21, 1999. The jury found Coles guilty of unlawful possession of ammunition in connection with the Abderrafe robbery, but deadlocked on the armed robbery and PFCV charges. 3 We affirmed the conviction for ammunition possession in Coles v. United States, No. 99-CV-1017, Memorand um Opinion and Judgme nt (D.C. March 6, 2001). From October 11 to October 1 3, 2000, a second jury trial was he ld before Judge Natalia M. Combs Greene with respect to the charges of armed robbery and PFCV. The ju ry at the sec ond tria l found Coles g uilty on bo th coun ts. This a ppeal f ollowe d. II. THE ATTEMPTED IMPEACHMENT FOR BIAS The only issue raised by Coles on appeal w hich merits p lenary conside ration is whether the trial judge erred b y limiting th e cross- exam ination o f Kurt Good wine, a witness for the prosecution.4 We discern no legal error or abuse of discretion. In our view, the 3 Coles was acquitted of armed robbery and related weapons charges in relation to the other two incidents that were charged in the indictment. 4 Coles remaining claims warrant little discussion. He argues that his convictions for armed robbery and PFCV merge, but we have previously rejected this contention. See Hanna v. United States, 666 A.2d 845, 856 (D.C. 1995) ( The [PFCV] count does not merge with . . . the armed robbery count ); Thomas v. United States, 602 A.2d 647, 650 (D.C. 1992) ( [T]he Council [of the District of Columbia] did not intend . . . the offense [of PFCV] to merge with an offense subject to the enhanced penalty provision of [D.C. Code § 22-]3202. ). Coles also complains that, in reinstructing the jury with respect to the elements of armed (continued...) 4 limitation of which Coles complains pertained to a matter of very little, if any, probative value, and its exclu sion was ju stified by its potential for distracting the jury from the issue at hand. At the very least, the trial judge could reasonably so conclude. A. Background. During the prosecution s case-in-chief, Goodwine testified that he had sold defendant Coles a Smith and Wesson handgun, as well as ammunition and a speed loade r, when the two men were employed by the Department of the Navy approxim ately five years before the trial. Goodwine identified G overnm ent s Exh ibit No. 2, by its serial number, as the weapon that he had sold to Coles. Exhibit No. 2 was the handgun that Coles had allegedly dropped during the officers pu rsuit of him. On cross-examination, Goodwine acknowledged that he had no documentation of the sale o f the hand gun to C oles, and he was unable to recall either the precise date of the transaction or the exact amount paid to him by Coles. Coles attorney then attempted to cross-examine Goodwine regarding an employment 4 (...continued) robbery, the trial judge omitted the definition of the words carried the property away. The element itself was not omitted from the reinstruction, and the judge had previously instructed the jury as to the meaning of the language in question. Coles attorney did not object to the reinstruction. Rule 30 of the Superior Court s Rules of Criminal Procedure provides in pertinent part: No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection. Under these circumstances, we review only for plain error, Johnson v. United States, 520 U.S. 461, 466-67 (1997), and find none. 5 discrimination complaint that Coles had allegedly filed in January 1999 against Goodw ine s superior at the Navy Department. The judge inquired as to the relevance of the question, and counsel proffered that the prop osed line of inquiry wou ld demon strate that Goodwine was biased agains t Coles . Counsel explained that Goodwine had been called as a management witness by the Department of the Navy in an administrative hearing on C oles compla int. Sub sequ ently, in January 2000, Goodwine had stated in an affidavit that Coles had a deleterious effect on morale of the section b ecause no ne of us c ould und erstand his motiva tion and we co uld all se e whe re this w as head ing. 5 The judge indicated that she did not see how the discrimination complaint provided Goodwine with a motive to f abricate evid ence false ly implicating C oles in an armed ro bbery. She pointed out that if the proposed questioning was permitted, the prosecutor would have the right to bring out the witness position. Coles attorney acknowledged that this was so: Oh, no question. The judge then explained that she did not propose to try what she regarded as a collateral matter (namely, the rights and wrongs of Goodwine s criticism of Coles in connection with the discrimination case): I m not goi ng to try tha t [discrim ination] case. I think, you know, bias is always relevant, that is true, but g iven wh en this affidavit was given, the circumstances under which it was given, an administrativ e action w here this witness was just called as a witness, that he was not alleged to have been one of the discriminators or that h e took a ny action agains t your clien t, I don t see how that is probative of bias in terms of I m not going to turn this into som e discrimina tion trial. 5 We cannot agree with our dissenting colleague that the quoted language rises to the level of an express[ion] [of] animus against Coles. Post at 11. Indeed, in our view, phrases like animus and demonstrabl[e] bias, id. at 13, overstate the reality when one considers that we are dealing here with an alleged motive for falsely associating Coles with an armed robbery. See infra, pp. 8-9. 6 Coles attorney then argued that Goodwine s motive was to c urry favor w ith his boss. The judge disagreed and declined to permit the proposed cross-examination. B. Legal An alysis. A criminal defendant s right to cross-examine prosecution witnesses is protected by the Conf rontatio n Clau se of th e Sixth Ame ndme nt. Davis v. Alaska, 415 U.S. 308, 315 (1974); Lawrence v. United States, 482 A.2d 374, 376 (D.C. 1984). That right, how ever, is not unlimite d. Reed v. United States, 452 A .2d 117 3, 1176 (D.C. 1 982), cert. denied, 464 U.S. 839 (198 3). [D]es pite the Sixth Amen dment, the tria l court has broad discretion to impose reasonable limits on cross-examination based on concerns about, among other things, harassme nt, prejudice, confusion of the issues, the witness safety, or interrog ation that is repetitive or only marginally relevant. Grayton v. United States, 745 A.2d 274, 280-81 (D.C. 2000) (citatio ns and inter nal quotatio n marks o mitted). A proposed line of questioning may, and should, be disallowed if the trial court concludes that its probative value is substantially outweighed by the danger of unfair prejudice, id. at 281; see also Mercer v. United States, 724 A.2d 117 6, 1184 (D.C. 19 99), or if the inquiry may divert the attention of the jury from the issue at hand . The trial judge has wide latitude insofar as the Confrontation Clause is conce rned to impos e reaso nable lim its on cro ss exam ination, Delaware v. Van A rsdall, 475 U.S. 673, 679 (1986), for she has the responsibility for seeing that the sideshow does not take over the circus. EDWARD W. C LEARY, M CC ORMICK ON E VIDENCE § 40, at 89 (3d ed. 1984). 7 In the present case, the proposed cross-examination was designed to impeach Goodw ine for bias: Bias is a term used in the common law of evidence to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness like, dislike, or fe ar of a party, or b y the witness se lf-interest. United States v. Abel, 469 U.S. 45, 52 (1984). Bias is always relevant, Hollingsworth v. United States, 531 A.2d 973, 979 (D.C. 1987), and [t]he Supreme Court has established that the refusal to allow any questioning about facts indicative of bias from which the jury could reasonab ly draw adverse inferences . . . is an error of constitutional dimension, violating the defendant s rights secured by the Confrontation Clause. Ford v. United States, 549 A.2d 1124, 1126 (D .C. 1988) (e mphasis in original) (citing Van Ar sdall, supra, 475 U.S. at 67879. Here, the judge allowed no cross-examination regarding Goodwine s purported bias, which was alleged to have stemmed from Coles discrimination complaint. But the party posing the q uestion mu st proffer to the court some facts which su pport a gen uine belief th at the witne ss is biased in the manner asserted, that there is a s pecific personal bias on the part of the witness, and that the proposed questions are probative of bias. Barnes v. United States, 614 A.2d 902, 905 (D.C. 1992) (emphasis added) (quoting Porter v. United States, 561 A.2d 994 , 996 (D.C. 1989 )). The trial judge . . . has discretion in determin ing whe ther particular e vidence is relevant to bias or motive. White v. Sta te, 598 A.2d 187, 194 (Md. 1991) (q uoting 8 M CC ORMICK ON E VIDENCE, supra, § 40, at 87). Indeed, the trial court has a great deal of discretion in mak ing this d etermin ation. Id. [T]he b urden of showing the relevance of particular evidence to the issue of bias rests on its proponent. Cham bers v. State , 866 S.W.2d 9, 26-27 (Tex. Crim. App. 1993). Moreover, not everything tends to show bias, and courts may exclude evidence that is only marginally useful for this purpose. State v. LanzTerry, 535 N.W.2d 635, 640 (Minn. 1995). Evidence tending only slightly to prove bias may be admitted; howev er, rejecting such evidence is w ithin the discretionary power of the trial court. State v. Jackson, 457 S.E.2d 862, 87 0 (N.C. 1995). Proportionality is of consummate importance in judicious adjudication, Allen v. United States, 603 A.2d 1219, 1227 (D.C. 1992) (en banc), and, as the foregoing authorities demonstrate, the principle that the preclusion of all cross-examination regarding a witness possible bias violates the Constitution must be applied with a measure of common sense. Trivial motivations are insufficient. If Jones accidentally steps on Smith s toe and momen tarily inflicts a little pain on Smith s corn, this might reasonably provide a motive for Smith to curse Jones or even to push him, but no reasonable person would view it as a motive to throw ac id into Jones eyes or to shoot Jones through the heart. The present case may not be as extreme as the foregoing hypothetical, but an expression of dissatisfaction with Coles role in the discrimination proceeding in which Goodwine was me rely a witness re asonably appeared to the trial judge to provide a very unpersuasive motive indeed for helping to frame a man for armed robbery by fabricating a five-year-old sale of a handgun.6 Although the 6 According to our dissenting colleague, it was unnecessary for the defense to show that the proffered bias was of a magnitude which would cause Goodwine to assist in framing appellant. Post, p.15. But surely an impartial jury could not rationally conclude that Goodwine mistakenly believed that he had sold Coles a handgun, or that Goodwine believed that he knew the serial number (continued...) 9 judge did n ot express h erself in precisely these terms, we are satisfied that this is what she was driving at. To articulate the p oint by resort to this court s language in Barnes, supra, the defense proffer did not amount to the specific personal bias, 614 A.2d at 905, require d to lay a foundation for cross-examination for bias. The proffer of bias was marginal at best, and thus quite inadequate to require the judge to permit th e propo sed line of inqu iry. Cf. LanzTerry, supra, 535 N.W .2d at 640; Jackson, supra, 457 S.E.2d at 870. Moreover, the situation b efore the trial ju dge wa s rife with the potential for confusion of the issue and for distraction of the jury from the question whether Coles was innocent or guilty: Impeach ment is not a dispassiona te study of the capacities and character of the witness, but is regarded in our tradition as an attack upon his credibility. Under o ur adversa ry system of trials the oppone nt must be g iven an op portunity to meet this attack by evidence sustaining or rehabilitating the witness. M CC ORMICK ON E VIDENCE, supra, § 49, at 115 (emphasis in original). Accordingly, if the trial judge had permitted the line of inquiry proffered by the defen se, the prose cution wo uld 6 (...continued) of the weapon when he did not. On this record, Goodwine was either telling the truth or he intentionally framed Coles for an armed robbery, and the judge reasonably concluded that Coles had not proffered evidence of the kind of bias which could reasonably lead the jury to believe that such deliberate framing had occurred. Judge Ruiz also suggests, id., that reversal is warranted even though there was no need to doubt that Goodwine sold a gun to appellant at some time while they worked together for the Marine Corps. (Emphasis in original.) Her hypothesis seems to be that although Coles purchased a weapon from Goodwine, Coles discrimination suit could have so angered Goodwine that he would provide a false serial number for the weapon he sold to Coles just to inculpate Coles in an armed robbery. We are satisfied that this possibility is sufficiently remote to ensure that no impartial jury would reasonably believe it, and the judge could reasonably so conclude. 10 have had the right to rehabilitate Goodwine, and would presumably have done so by attempting to show that his comments about Coles were accurate and justified and did not reflect bias against the defendant. The inquiry would then have been diverted from the question of Coles innocence or guilt to the merits of a collateral dispute between Goodwine and Coles which ar ose in the co ntext of a d iscrimination case. It is no secret that allegations of unlawful discrimination tend to capture one s attention, and the proposed crossexamination would have had a significant potential for distracting of the jury. Under these circumstan ces, we pe rceive no le gal error or ab use of disc retion on the trial judge s pa rt.7 III. CONCLUSION For the foregoing reasons, Coles convictions are hereby Affirmed. 7 The judge evidently thought it implausible, and so do we, that Goodwine would fabricate the sale of a handgun five years earlier in order to retaliate in such a devastating way against Coles actions in the discrimination case. We do not read the dialogue between court and counsel quoted in footnote 1 of the dissent as being based primarily on the lapse of time since the alleged sale. On the contrary, the notion that Goodwine would invent so old a transaction was simply one of several factors showing the improbability of the defense s entire motive to fabricate theory. 11 R UIZ, Associate Judge, dissenting: Under well-established principles of law, once a good faith proffer of bias is presented to the trial court, the jury should learn of a witness s bias, unless the probative v alue of the evidence is substantia lly outweighed by the risk of undue prejud ice. See Clayborne v. United States, 751 A.2d 956 , 962-63 (D.C. 20 00). In this case, defense counse l proffered that Kurt Goodwine, an important prosecution witness in the government s second attempt to secu re Paul Coles s conv iction for armed robbery, was biased against Coles. Goodwine testified that he had sold to Co les the very weapo n used in the armed robbery. The proffer of bias was supported by a sworn affidavit, signed by Goodwine only several m onths bef ore he testified against Coles, in which the witness expressed his anim us agai nst app ellant. Viewed through the proper legal lens which the trial court did not do the proffer was sufficient, but the trial judge precluded the crossexamination as delving into a collateral matter, without assessing prejudice. In light of defense counsel s proffer and the importance of the allegedly biased witness, the jury, not the trial judge, should have determined what weight, if any, to afford Goodwine s testimony in light of the bias he had agains t appella nt. See id. at 963 ( [P]robative evidence of bias, like probative evidence generally, should not be excluded because of crabbed notions of relevance or excessive mistrust of juries. ) (quoting Allen v. United States, 603 A.2d 1219, 1224 (D.C. 19 92) (en banc)). [T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial wh ich is this countr y s constitu tional go al. Pointer v. United States, 380 U.S. 400, 405 (1965) (ho lding the C onfrontatio n Clause a pplicable to the states through the Fourteenth Amendment). Of particular importance to this case is the 12 recognition that a proper and important function of the constitutionally protected right of cross-examination is the expo sure of a w itness motiv ation in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 67 8-79 (1986). So cru cial to the protection of a defend ant s constitutional rights is this aspect of courtro om exam ination, that it has served as the impetus for our persistent declarations that bias is always a prope r subjec t of cros s-exam ination. Scull v. United States, 564 A.2d 1161, 1165 (D.C. 1989) (citing Springer, 388 A.2d 846, 855 (D.C. 1978) (emphasis added)). Bias encompasses both a witness s personal bias for or against a particu lar party an d the w itness s m otive to l ie. See, e.g ., McCloud v. United States, 781 A.2d 74 4, 752 (D.C. 200 1). The majority, recognizing this well-established principle and conceding that the trial judge allowed no cross-examination regarding [the witness s] purported bias against appellant, nevertheless decides that the trial judg e did not err, findin g justification in the oftrepeated maxim that a trial court retains broad discretion to impose reasonable limits on cross-examination. See, e.g., Brown v. United States, 683 A.2d 118 , 124 (D.C. 1996 ). While this, as a general proposition, is true, it is just as certain tha t the perm issible scope of crossexamination must be limited with the utmost caution a nd solicitude for the defen dant s Sixth Amendment rights. Spring er, 388 A.2d at 855 (quoting United States v. Houghton, 554 F.2d 1219, 1225 (1 st Cir. 1977)). The broad discretion afforded the trial court as to the extent of cross-ex amination cannot . . . justify a curtailment which kee ps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. Bennett v. United States, 797 A.2d 1251, 1257 (D.C. 2002) (quoting McCloud, 781 A .2d at 75 2). In order to balance the guarantee of the Confrontation Clause, which is violated when 13 there is a refusal to allow any questioning about fa cts indicative of bias from w hich the jury could reasonably draw adverse inferences of reliability, Brown, 683 A.2d at 124, and the firmly embedded postulate that the right to cross-examination is subject to reasonable limits imposed at the discretion of the trial judge, id. (quoting Scull, 564 A.2d at 1164), we have established a basic foundational requirement before permitting inquiry abou t a witness s possible bias or partiality. When opposing counsel objects to bias cross-examination, the examiner must proffer to the court the basis for her genuine belief that her questioning is well-grounded and henc e that the answ ers may b e proba tive of b ias. See Clayborne, 751 A.2d at 963 (citing Jones v . United States, 516 A.2d 513, 517 (D.C. 198 6)). This requirement is flexible as well as lenient. Id. When this found ational requ irement is m et, the trial court s broad discretion to exclude such testimony is necessarily dim inished, and it is only where a proper foundation for such inquiry has not been laid that a trial court may preclude it in its entir ety. See Guzman v. United States, 769 A.2d 785, 790 (D.C. 2001) (citing Ray v. United States, 620 A.2d 860 , 862 (D.C. 1993 )). I. The Proposed Cross-Examination a. The Proffer of Bias Defense counsel met his initial burden in proposing to examine a witness fo r partiality by providing a good faith basis to believe that Goodwine was demonstrably biased against Coles. Counsel not only communicated to the trial judge his well-founded belief that the prosecution witness w as biased ag ainst Coles becaus e he had f iled a discrim ination suit against the Navy, where Goodwine wo rked at Marine Corps Headquarters, but also produced 14 documentary evidence (the witness s affidavit) which corroborated that belie f. Though not all lawsuits against an employer would necessarily sour an employee against the plaintiff, it was clear that this one did. In an affidavit filed in an administrative proceeding concerning the charge of discrimination, Goodwine stated that, [Coles] had a deleterious effect on the morale of the section because none of us could understand his motivatio n and w e could all see where this wa s headi ng. T he law suit, acco rding to couns el s prof fer, implicate d Goodw ine s supervisor, which possibly gave Goodwine (who had been called as a management witness in the administrative proceeding) further motivation to testify against Coles in order to curry favor with his boss. Presented with this proffer, the trial court sh ould have excluded the cross-examination only upon strong indication that the brief line of questioning requested re garding Good wine s feelings towards Coles would have confused the jury, unduly harassed the witness, or been otherwise so prejudicial as to justify impairing Coles s constitutiona l right to confront the witness agains t him. See Guzman, 769 A.2d at 790; Clayborne, 751 A.2d at 963; see also Davis v. Alaska, 415 U .S. 308, 319 (1974) (holding that petitioner s right of con frontation w as paramo unt to state s policy of protecting juvenile offenders an d any embarrassmen t to witness). The trial judge denied defense counsel s request to cross-examine Goodwine based on her erroneous belief that the foundational requirement had not been met. Mo re pr ecisely, the trial judge found it difficult to believe that the discrimination suit brought by appellant against Goodwine s employer would have given Goodwine the motive to perjure himself about the sale of the gun to Coles. The ma jority also seems to believe that C oles s suit against the Navy was marginal because it provided a very unpersuasive motive indeed for helping to frame a man for armed robbery by fabricating a five-year-old sale of a handg un. 15 See ante at 8-9. They miss two crucial points, one of perspective and another of degree. The relevant question is not whether the judge believes Goodwine had sufficient rea son to fabricate an outright untruth in testifying that he sold the gun used in the a rmed rob bery to Coles, but whether Goodwine s evident animus against Coles should have been revealed to the jury so tha t it could consid er whe ther the relation ship be tween a party an d a witn ess . . . might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Guzman, 769 A.2d at 791 (quoting United States v. Abel, 469 U.S. 45, 52 (1984)). There was no requirement for defense counsel to prove the proffered bias was of a magnitud e which w ould cause G oodw ine to as sist in fr aming appe llant. Nor was there even the need to doubt that Goodwine sold a gun to appellant at some time while they worked together for the Marine Corps . But with the knowledge that Goodwine held a bias against appellant for bringing a lawsuit against his employer which Goodwine felt had a deleterious effect on the mo rale of [ his] sect ion, a reasonab le jury might ha ve more c arefully scrutinized the veracity of Goodwine s statement that he cou ld identify the w eapon us ed in the armed robbery as the gun he sold Coles several years earlier because he remem bered its serial number. The exposure of bias may be a cru cial determin ant in the jury s assessment of the trustworthiness of a witness. Clayborne, 751 A.2d at 962 (internal quotation and citations omitted). It is not for us to speculate as to whether the jury would have accepted appellant s line of reasoning had defense counsel been permitted to fully present it; rather, the jurors were entitled to hav e the bene fit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness s] testimo ny. Davis, 415 U.S. at 354. 16 b. Abuse of Discretion Even putting aside the sufficie ncy of Cole s s proffer, th e trial judge erred in not allowing the requested cross-examination because her decision was primarily based upon consideration of an irrelevant and improper factor. Defense counsel proffere d that, in January of 1999, appellant had filed a discrimination claim against his former employer (for whom Goodwine still worked), and had produced an affidavit that Goodwine had signed in January 2000 the s ame year he testified in this case in relation to that employment discrimination claim. At a bench conference, the trial judge erroneously focused on the date of Goodwine s affidavit in relation to the alleged sale of the gun.1 The fact that Goodwine 1 The Court: When was the suit filed? ... Defense Counsel: In January of 1999. The Court: So it was how long after this incident [the sale of the gun]? Defense Counsel: The man is testifying today. ... The Court: The suit was filed in 99? Defense Counsel: Right, but he s testifying today. The Court: And so? Defense Counsel: So it goes to bias. I mean ... The Court: How is this person involved? Is he alleged to have been the discriminator? Defense Counsel: No, but he did he did make some statements stating that his exact words are Mr. Coles He had a deleterious effect on the morale of the section because none of us could (continued...) 17 may have so ld the gun to appellant five years or more before Coles filed the action against the Navy had no bearing on whether Goodwine held a bias against appellant for initiating that civil action at the time Goodwine testified against him in the criminal trial. To be the proper subject of inquiry, an incident giving rise to bias need only precede the testimony given by the person who is alleged ly biased. See Best v. United States, 328 A.2d 378, 381 (D.C. 1974). The close r the tempo ral relationship between the incident giving rise to bias and the trial, the more probative. The majority does not acknowledge that the trial judge incorrectly analyzed the proffer by focusing on the temporal relationship between the witness s purported sale of the gun five years before his testimony at the crimina l trial, a relationship that was irrelev ant to appellant s proffer that the same year that Goodwine testified against Coles in the criminal trial he also swor e in an affidavit that Coles had a deleterious effect on the morale of the section of the Navy of which Goodwine was a part. Thus, the trial court erred beca use it failed to consider a r elevant factor, and relied upon an improper 1 (...continued) understand his motivation and we could all see where this was heading. That s where the bias is involved. He s stating that Mr. Coles actions contributed to The Court: When was the affidavit? Defense Counsel: The affidavit, January 14th of 2000. That s when he signed it. ... Prosecutor: I believe that Mr. Goodwine was called as a management witness by the Department of the Navy in an administrative proceeding. The Court: Well, I don t see how that would give this witness a motive to favor the Government and to lie about a sale that happened several years earlier. A suit that is brought and an affidavit that s given in 2000, I don t see how that would it s going to try some collateral matter. (emphasis added). 18 factor. See Johnson v. United States, 398 A.2d 354 , 365 (D.C. 1979 ).2 Failing to grasp the relevance of the proffer, the trial judge was more concerned over trying a collateral matter, even though there was no exploration of what the scope of questioning on the ma tter would need to be. The majority supplies its own rationale for the trial judge s concern about trying collateral matters, stating that if the cross-examination had been allowed, th e govern ment wo uld have h ad the right to rehabilitate Goodwine by attempting to show th at his comm ents abou t Coles w ere accura te and justified and did not reflect bias against Coles. See ante at 10. This confuses impeachment with proof of untrue statements with impeachment for bias. Where impeachment is for bias, it makes absolutely no difference whether Coles s ac tion against h is former employer genuinely undermined the morale of Goo dwine s f ellow w orkers. In ev aluating the p ossibility of bias, it is the witness s subjective belief w hich is centra l to the issue, sinc e it is this be lief that c an prod uce bia s. Scull, 564 A.2d at 1165. Thus, the only pertinent consideration was whether, at the time Goodwine gave his testimony, he subjectively thought C oles had h armed his work un it, regardless of whether Goodwine was justified in feeling that way. No doubt the government would have had a right to probe the depth of Goodwine s resentm ent against C oles, as in every case in which bias is raised. But there is no record basis for the majority s concern that cross-examination for bias would have diverted the jury s attention into the merits of the 2 The majority seems to think that the age (five years) of the gun sale to which Goodwine testified somehow attests to its veracity, the implication being that if Goodwine had really wanted to frame appellant, he would have fabricated a more recent gun sale. See ante at note 7. Even a lying witness must have some regard for the crime charged, however. The armed robbery in question took place in July 1997. The first trial, where the jury could not agree on the armed robbery and PFCV charges, was held in 1999. The second trial, at which Goodwine testified, was held in October 2000, more than three years after the armed robbery. For the sale of the gun to be relevant, it had to have preceded the 1997 armed robbery. As noted, Goodwine could not specify the date of the sale; he merely testified that it was in 1994-1995. 19 employme nt discrimina tion claim, or its a ctual effec t on Goo dwine s w ork unit. The majority also justifies the trial judge s exclusion of cross-examinatio n on the ground that allegation s of unlaw ful discrimin ation tend to capture one s attention, and the proposed cross-examination would have had a significant potential for distracting of the jury. See ante at 10. Even assuming this is so, it would n ot be a suff icient reason to preclude bias cross-examination altogether (as opposed to reasonably limiting the government s re-direc t). I note that it is precisely because allegations of discrimination are noteworthy that it is reasona ble to think th at the jury could well have believed, as counsel proffered, that Coles s discrimination lawsuit cap tured the atten tion of G oodwin e and his fellow workers. In sum, the proffer of bias in this case was sufficient to require the trial court, absent a showing of serious prejudice, to allow cross-exam ination on the issue of G oodwine s documented resentment towards Coles. An exercise of judicial discretion, however broad, will be reversed if it appears that it w as exercised on grou nds, or for reasons, clearly untenable or to an extent clearly unreasonable. Johnson, 398 A.2d at 363 (quoting Bringhurst v. Harkins, 122 A . 783, 78 7 (Del. 1 923)). I thus conclude that the trial court erred in exclu ding th e bias cr oss-ex amina tion of K urt Go odwin e. II. Prejudice Whether that error warranted reversal of appellant s conviction depend[s] upon the scope of cross-examination permitted by the trial court measured against our assessment of 20 the appropriate degree of cross-examination necessitated by the subject m atter thereof a s well as other circumstances that prevailed at trial. Flores v. Unite d States , 698 A.2d 474, 479 (D.C. 1997) (quoting Springer, 388 A.2 d at 856). If th e issue on c ross-exam ination is me rely collateral, or where ample cross-examination has already been allowed on a particular issue, curtailment of cross-ex amination does not im plicate the Sixth Amendment, and we apply the less stringent harmless error test set forth in Kotteakos v. United States, 328 U.S. 750, 765 (1946). The Confrontation Clause is violated, however, and we app ly the constitutional harmless error test of Chapman v. California , 386 U.S. 18, 22-2 (1967), whenever the trial court precludes a meaningful degree of cross-examination to establish bias. Grayton v. United States, 745 A.2d 274, 279 (D.C. 2000) (quoting Flores, 698 A .2d at 47 9). In this case, even though defense counsel was able to ask about the lack of documentary evidence of Goodwine s sale of the gun to appellant and Goodw ine s inability to recall the year of the sale or price at which he sold the gun deficiencies which the jury could easily dismiss as unimportant details the trial court s ruling prohibited defense counsel from exposing Goodwine s bias and motive to lie. Thus, an entirely separate line of relevant questioning was precluded, depriving appellant of a meaningful degree of crossexam ination. See id.; Flores, 698 A.2d at 479; Scull, 564 A .2d at 11 64. Therefo re, in order to affirm Coles s conviction, I would have to conclude that the trial court s error in limiting the cross-examination of Goodwine for bias was nonetheless harmless beyond a reasonab le doubt. See Chapman, 386 U.S. at 22-24. This I cannot do, as under the Chapman standard it must be clear that Coles would have b een co nvicted withou t Good wine s testimo ny. See Flores , 698 A.2 d 474, 48 0-81; Scull, 564 A .2d at 11 66. 21 The government s case against Coles for armed robbery was problematic, to say the least. Notably, the officers of the Metropolitan Police Department who testified against Coles were impeached with numerous inconsistencies in their prior statements and obvious variations in their accounts of the events surrounding Coles s apprehension and arrest. For instance, the only office r who w as able to dire ctly connect C oles to the weapon produced at trial first testified that he had gotten a good look at appellant s whole face for about two or three seconds while chasing him. On cross-examination, however, the officer was impeached by a tape reco rding of a r adio call ma de to a polic e dispatcher shortly after the recovery of the gun in which he stated that he had been able to see the suspect only from the rear. Similarly, Abderrafe, the victim of the robbery who positively identified appellant at trial as one of the men who robbed him, admitted that he made on-scene identifications of both Coles and the second man alleg ed to have been invo lved in the ro bbery primarily because police of fice rs ha d told him that t hey thought the two men were the culprits. An officer testified that the re were tw o men clo se to the place where the ro bbery took place who were observed by police wearing the camouflage pants the victim described were worn by one of the robbers.3 There w as no physica l evidence tyin g Coles to the arm ed ro bbery. When the government tried appellant the first time with this evidence, it was unsuccessful in securing a conviction on the arm ed robbe ry or PFCV charge. O n retrial, where th e only additional evidence brought against Coles was Goodwine s testimony that he had sold the gun used in the armed robbery to Coles, a conviction was secured. Defens e counse l s efforts in closing argument to impeach Goodwine s testimony about his sale of the gun to appellant, questioning his recall from mem ory of the serial number of a gun he had sold several years 3 That officer was impeached with a call made on the night of the robbery in which he mentioned only one man wearing camouflage pants. 22 earlier, would h ave been greatly strengthe ned if he had been able to show that Goodwine was ill-disposed against app ellant and p ossibly partial to the government a nd the jury co uld infer motivate d to say with certainty that the gun used in the robbery was the same weapon he had sold to Coles five years earlier. In light of the first jury s doubt and my evaluation of weaknesses in the government s case, I cannot say, beyond a rea sonable d oubt, that appellant would have bee n convicte d even if Goodwine s testimony had not b een b eliev ed by the ju ry. See United States v. Williams, 341 U.S. App. D.C. 281, 287 n.10, 212 F.3d 1305, 1311 n.10 (2000) (cautioning against assigning critical significance to the failure of a diff eren t jury, which heard d ifferent evidence and argument, to reach ag reement ). I would re verse Co les s convic tion and rem and the ca se for a new trial.

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