Appeal from the Superior Court of the District of Columbia; Hon. Colleen Kollar-Kotelly, Trial Judge
Ferren, Steadman, and Schwelb, Associate Judges. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Ferren
A jury convicted appellant of possessing cocaine. D.C. Code § 33-541 (d) (1988). He now appeals, contending the trial court erred by (1) refusing to allow two witnesses to testify on appellant's behalf; (2) restricting his cross-examination of the arresting officer for alleged bias; and (3) allowing the prosecutor to misstate the law of actual and constructive possession in his closing argument. Appellant also contends that if none of these errors alone is enough for reversal, taken together they resulted in an unfair trial. Because we believe the trial court abused its discretion by applying an erroneous rule of relevance in refusing to allow one of the proffered defense witnesses to testify, we remand the case for a proper exercise of discretion.
The police received a call from Monsen McConnell complaining of an armed man in her apartment. When Officers Savage and Taylor arrived at McConnell's apartment, she met them at the door and told them that appellant was in the back room with a gun. The officers entered the apartment and told appellant to come to the front room. Some time later, *fn1 appellant came out of the back room with his hands raised. The officers testified that they instructed appellant to put his hands on a kitchen table, which they previously observed had only books, and perhaps a satchel, on it. Officer Taylor frisked appellant while Officer Savage, standing on appellant's left, watched. Officer Savage observed a small packet containing white rocks fall from appellant's right side to the floor. While Officer Savage did not see the object fall from appellant's jacket pocket, he assumed that it had come from the pocket because there was no other place from which the object could have fallen *fn2 and appellant's jacket pockets were turned inside-out. Officer Savage retrieved the package and arrested appellant for possession of cocaine.
Appellant contends the trial court erred in refusing to allow two witnesses to testify on his behalf. According to appellant's counsel, the first witness, Monsen McConnell, the tenant of the apartment where appellant was arrested, would have testified that there were no drugs on the table the day appellant was arrested. Appellant wished then to impeach McConnell by eliciting that she had routinely placed drugs on the table and that she had used cocaine frequently around the time appellant was arrested. The trial court questioned McConnell away from the jury. The court concluded that McConnell had a valid Fifth Amendment right to refuse to respond to the proffered questions and that, in any event, appellant could not impeach his own witness absent surprise.
Appellant claims the trial court erred on two grounds. First, he says, the court should have allowed him to question McConnell before the jury even if she asserted a Fifth Amendment privilege. Appellant contends that if the jury heard McConnell assert the privilege, his counsel could argue more convincingly, in closing, that her refusal to answer indicated that the cocaine was McConnell's.
Appellant's argument -- as he readily admits -- is foreclosed by the caselaw in this jurisdiction absent en banc review. See Bowles v. United States, 142 U.S. App. D.C. 26, 32, 439 F.2d 536, 542 (1970) (en banc) ("a witness should not be put on the stand for the purpose of having him [or her] exercise his [or her] privilege before the jury"), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L.Ed.2d 533 (1971); see Davis v. United States, 482 A.2d 783, 785 (D.C. 1984). We decline appellant's invitation to urge the full court to reconsider the Bowles rule, for we believe it is sound.
Appellant next asserts that the trial court could have narrowed McConnell's testimony and cross-examination in a way that permitted questioning her about unprivileged matters. According to appellant, he then could have used McConnell's unprivileged testimony to support his version of the events surrounding appellant's arrest -- in particular, (1) as to the amount of time appellant stayed in the back room after the officers arrived (a fact bearing on his opportunity to dispose of the drugs), see supra note 1, and (2) as to whether children were in the room with appellant. The trial court refused to allow McConnell to testify, ruling that narrowing the scope of cross-examination would be unfair to the government.
The trial court erred in not permitting McConnell to testify on unprivileged material. The Fifth Amendment protects a citizen from testifying against herself, see Hoffman v. United States, 341 U.S. 479, 485-86, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), but when a witness asserts a Fifth Amendment privilege, she does not automatically disqualify herself from testifying. The trial court must determine whether the proposed testimony would tend to incriminate the witness and whether the risk of prosecution is "substantial and real." Jaggers v. United States, 482 A.2d 786, 793 (D.C. 1984); see Hoffman, 341 U.S. at 486; Irby v. United States, 585 A.2d 759, 763 (D.C. 1991). Normally the court does so by voir dire of the witness away from the jury. See Davis, 482 A.2d at 785. A witness's privilege is narrower than a defendant's. Salim v. United States, 480 A.2d 710, 714 (D.C. 1984). It extends only to "specific questions; it does not encompass a refusal to take the stand at all." Alston v. United States, 383 A.2d 307, 313 (D.C. 1978); see Hoffman, 341 U.S. at 486; Wilson v. United States, 558 A.2d 1135, 1141 (D.C. 1989); Davis, 482 A.2d at 785; Salim, 480 A.2d at 714.
Based on this constitutional analysis, the trial court should have allowed McConnell to testify on the narrow, unprotected grounds requested: how long appellant remained in the back room before surrendering, and whether children were with him in the room at the time. The trial court could have effectively narrowed the scope of McConnell's testimony and cross-examination to these unprivileged matters. We conclude, however, that the exclusion of McConnell's testimony was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Davis, 482 A.2d at 786. *fn3 First, on either version of the amount of time appellant spent in the back room, he had enough time to dispose of the drugs if he had chosen to do so. This is true because, according to appellant's own testimony, he knew the police were coming seven to ten minutes before they arrived. *fn4 Thus, appellant had at least seven minutes and fifteen seconds, if not twelve to fifteen minutes to dispose of the drugs. See (supra) notes 1 and 4. Because not even appellant's own version of events helps his case, we can say beyond a reasonable doubt that the exclusion of McConnell's testimony, which at best would have only corroborated appellant's version, did not contribute to the verdict.
Second, whether or not there were children in the room with appellant was a fact too remote to have had any effect on the verdict: possession of cocaine. Chapman, 386 U.S. at 24. The fact of children on the premises had not been mentioned on the radio call to Officers Savage and Taylor; the police were not responding to a report of "gun on children." Nor is there any record basis for believing the officers otherwise knew children were with appellant before they arrived at McConnell's apartment. *fn5 Nor, finally, was appellant charged with an offense involving children. The fact that Officer Taylor did not recall whether children were present, therefore, was not remarkable. In any event, Officer Savage did remember the children. The only dispute between appellant's and Savage's testimony was the timing of the children's exit from the back room. *fn6 McConnell's testimony would have served the limited purpose of challenging one government witness's (Officer Taylor's) recollection of events not directly pertinent to the charged offense. We are confident that beyond a reasonable doubt the exclusion of McConnell's testimony did not contribute to the outcome.
Appellant also contends the trial court erred in refusing to permit Maurice Lewis's testimony for the defense. In an effort to create an impression that McConnell, not appellant, was responsible for the cocaine, defense counsel proffered at trial that Lewis would testify that McConnell had a cocaine habit and that Lewis frequently had seen drugs on McConnell's table where appellant was frisked. Lewis, however, apparently could not testify that McConnell had left drugs on the table the day when appellant was arrested because Lewis had not been there that day. For this reason, the trial court ruled that Lewis's testimony was inadmissible. *fn7 We review for abuse of discretion. See Shepard v. United States, 538 A.2d 1115, 1116 (D.C. 1988).
Due process and the Sixth Amendment right to compulsory process for obtaining witnesses entitled appellant to call witnesses on his own behalf. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); King v. United States, 550 A.2d 348, 353 (D.C. 1988). Accordingly, if Lewis had been able to testify that McConnell had a drug habit, that she had frequently (or even occasionally) kept cocaine on the table, and that cocaine was there as recently, for example, as a few weeks before appellant was arrested, that testimony could have been relevant to appellant's defense that the cocaine which fell to the floor was not his. We therefore agree with appellant that the trial court erred in ruling that Lewis would not be allowed to testify simply because he could not place drugs on the table on the very day appellant was arrested.
There comes a point, however, at which such evidence becomes too attenuated to be of relevance; some temporal nexus between the witness's observations and the crime is required. See Commonwealth v. Graziano, 368 Mass. 325, , 331 N.E.2d 808, 811 (1975) ("The evidence should not be too remote in time . . . and it should be closely related to the facts of the case against the defendant."). In this case, there was no defense proffer connecting Lewis's observation of cocaine with appellant's arrest. Counsel merely proffered that "on many, many occasions" Lewis had been in McConnell's home he had "seen drugs on the table." When the trial Judge asked counsel to "tell me something more specific . . . 'many, many times' or 'often' is not helpful," counsel could only reply "I'll have to question Mr. Lewis." Counsel should have known how recently Lewis could testify he had seen cocaine on McConnell's table. In any event, appellant's counsel was not justified in assuming the trial court would not have permitted her to question Lewis to elucidate the timing. *fn8 Counsel did not ask to do so. Accordingly, counsel's vague proffer stands as is, and there is no record basis for concluding that appellant could (or could not) have established a temporal nexus between Lewis's observations and the crime. We therefore have a situation in which (1) the trial court erred in ruling that, for admissibility, Lewis would have to place cocaine on the table the day appellant was arrested, but in which (2) defense counsel did not proffer a clear enough time frame to permit us to ascertain whether the trial court, in the proper exercise of discretion, could or should have admitted the testimony. Despite counsel's lack of tenacity, however, we conclude that the trial court's error is significant enough to justify remanding the case for the trial court to decide, in the exercise of sound discretion, whether to admit Lewis's testimony.
We reach this Conclusion for two reasons. First, the trial court left defense counsel very little room to provide the appropriate proffer. See (supra) note 7. Second, the court had considerable leeway in allowing Lewis to testify even if Lewis only had seen cocaine on McConnell's table weeks or perhaps even months before appellant's arrest. Such an attenuated connection could make the evidence marginally relevant at best, but not necessarily inadmissible. Lewis could have testified that McConnell had a drug habit and that Lewis had seen cocaine on McConnell's table "on many, many occasions." Because drug habits do not die easily, this proffer in itself came very close to demonstrating that the trial court, if properly applying the rule of relevance, should have taken a hard look before ruling the testimony inadmissible. *fn9
Accordingly, we remand the case for the trial court to exercise proper discretion, based on a complete proffer, as to Lewis's proposed testimony about seeing cocaine on McConnell's table. See Wright v. United States, 508 A.2d 915, 919 (D.C. 1986) (parties entitled to exercise of trial court discretion "unfettered by erroneous legal thinking"). If the court concludes that the testimony should have been admitted, the court shall order a new trial, for we cannot say the omission of relevant testimony about the source of the cocaine would be harmless. On the other hand, in the event the court rules Lewis's testimony inadmissible, appellant's conviction (absent other reversible error) shall stand affirmed -- subject to the right to appeal the trial court's ruling.
Appellant next contends the trial court erred in refusing to allow defense counsel to explore Officer Savage's alleged bias; i.e., that Savage, in an attempt to fulfill his duty in the war on drugs, was biased in testifying about the cocaine falling from appellant. While it is undeniably true that litigants are given wide latitude to examine witnesses for alleged bias, Scull v. United States, 564 A.2d 1161, 1165 (D.C. 1989), the bias must be grounded in a "well-reasoned suspicion" rather than "an improbable flight of fancy." Id. at 1164 (citation and internal quotations omitted). Here, counsel provided no "'facts which supported a genuine belief' that the witness biased in the manner asserted." Jones v. United States, 516 A.2d 513, 517 (D.C. 1986) (quoting United States v. Fowler, 151 U.S. App. D.C. 79, 81, 465 F.2d 664, 666 (1972)). A general, broadstroke invocation of the "war on drugs" is insufficient to justify the requested cross-examination. See Van Ness v. United States, 568 A.2d 1079, 1082 (D.C. 1990). *fn10
Appellant alleges, finally, that the prosecutor's closing argument misstated the law on possession; that he kept from the jury the fact that guilt of the alleged charge hinged on a finding that the defendant knowingly and intentionally possessed illegal drugs; and that this omission -- which was not raised at trial -- amounted to plain error that clearly prejudiced appellant's substantial rights. We perceive no error in the prosecutor's statements, see Irick v. United States, 565 A.2d 26, 32 (D.C. 1989), and, even if there was an error, appellant has not met the "heavy burden" that we have demanded for overturning the verdict. Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc); accord Allen v. United States, 495 A.2d 1145, 1152 (D.C. 1985) (en banc). *fn11
For the reasons elaborated in Part III, we remand the case for further proceedings.
SCHWELB, Associate Judge, Dissenting: In this distinctly dubious "drop-see" *fn1 drug case, the trial Judge excluded relevant testimony on the legally insupportable ground that it did not necessarily establish Collins' innocence. The apparent misapprehension that evidence has to be decisive in order to be relevant characterized the Judge's ruling both with regard to the proposed testimony of Maurice Lewis and that of Monsen McConnell. The Judge also sustained Ms. McConnell's invocation of the privilege against self-incrimination with respect to matters that were not potentially incriminating.
In my opinion, both witnesses should have been permitted to testify. Because the prosecution evidence in this case, which rested on a single officer's assumption that the drugs fell from Collins' pocket, was marginal at best, I am satisfied that the errors were not harmless. Accordingly, ...