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02/19/93 ANTHONY D. RAY v. UNITED STATES

February 19, 1993

ANTHONY D. RAY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)

Before Ferren, Terry, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant Ray was convicted of first-degree murder while armed, *fn1 carrying a pistol without a license, *fn2 and possession of a firearm during a crime of violence. *fn3 His main contention on appeal is that the trial court erred in restricting his counsel's cross-examination of Tawana Owens, the principal government witness. Ray also maintains that his convictions on the firearm counts merged and that it was error for the trial court to impose separate sentences on those counts. We reject these contentions and affirm all of the convictions.

I

At trial the theory of the government's case was that appellant Ray killed Vernice Douglas in order to prevent her from testifying against his brother, Kevin Ray, in a pending drug case in which Kevin Ray, Douglas, and another person had been jointly charged. Regina Berry, a friend and co-worker of appellant's mother, Sherdina Ray, testified that she had been in an automobile with Mrs. Ray and appellant in the area of 18th Street, N.E., about a week or two before the fatal shooting of Vernice Douglas. When they saw Douglas on the street, Mrs. Ray called her over to the car because she wanted to speak to her about Kevin Ray's upcoming trial. During their conversation Douglas and Mrs. Ray discussed the testimony that Douglas was going to give. Whether Mrs. Ray was suggesting that Ms. Douglas perjure herself is unclear from the record. In substance, however, it appears that Douglas was going to say that the drugs involved were not Kevin's and that the marked money which the police found on his person had been given to him by Ms. Douglas in repayment of a loan.

The government's main witness was Tawana Owens. She testified that on the evening of the shooting she and Vernice Douglas decided to go to 18th and D Streets, N.E., to buy crack cocaine. As the two women walked through an alley near their destination, a man approached and asked them if they wanted to buy drugs. They replied that they did, and a sale was made. The seller then asked them to continue through the alley instead of going back the way they came. When Owens asked why, the seller replied that he "didn't want the jumpouts [police officers] to catch him." This seemed to be a reasonable answer, so Owens and Douglas proceeded through the alley toward 19th Street. As they approached the end of the alley, Douglas stopped to smoke some crack, but Owens kept on walking. When Owens was about six or eight feet ahead, she suddenly heard a gunshot behind her. As she turned around, she heard Vernice Douglas say, "Anthony, I am not the one, don't shoot me. I am not going to court." *fn4 Douglas repeated this statement, and then several more shots were fired. Owens testified that she recognized appellant Ray as the man who shot Vernice Douglas. She also said that, although Ray looked up and saw her standing there, he did not harm her or point his gun in her direction; instead, he fled as people started to enter the alley. Douglas died in the alley without saying anything more.

Dr. Vincent Hill, the Deputy Medical Examiner who performed the autopsy, testified that Vernice Douglas had been shot fifteen times and died from internal hemorrhaging. Powder marks on her clothing showed that at least some of the bullets had been fired from a distance of twenty inches or less.

The defense theory was that some other "Anthony" had killed Vernice Douglas, that because Douglas had no intention of testifying against appellant's brother in his drug case, appellant had no motive to kill her, and that Tawana Owens was actually an accomplice of the true murderer. Defense counsel called three witnesses. Crystal Gladden testified that she saw appellant walking on D Street around 7:30 or 8:00 p.m. when she heard gunshots. She immediately went into her house to check on her child, then came back outside and saw appellant still on the street, not in the alley. Julia Woodward, appellant's godmother, owned a store on 18th Street. She testified that as she entered her store, she noticed appellant standing near a mailbox on D Street. She then heard a number of gunshots, and when she peeked outside, appellant was still there. The final defense witness, Quintinja Williams, testified that she knew both appellant and Vernice Douglas, and that on several occasions Douglas had told her that she was going to testify favorably for appellant's brother *fn5 at his trial.

II

Appellant argues that the trial court erred in restricting his counsel's cross-examination of Tawana Owens. He asserts that Owens knew that Vernice Douglas' killer was awaiting her presence in the alley, and that inquiry into Owens' "possible role as an accomplice, or at least in an effort to discredit her testimony," was therefore "entirely proper." Despite these assertions, we conclude that the trial court did not abuse its discretion in denying appellant the opportunity to ask Ms. Owens questions on cross-examination that were "highly speculative" and without a factual basis. See Washington v. United States, 499 A.2d 95, 101 (D.C. 1985).

A defendant's Sixth Amendment right to confront adverse witnesses necessarily includes the right to cross-examine. Scull v. United States, 516 A.2d 513, 517 (D.C. 1989); Jones v. United States, 516 A.2d 513, 517 (D.C. 1986). But that right is not unlimited. 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, 415 U.S. 308, 316-317, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), the Sixth Amendment does not prevent a trial Judge from "imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness." De1aware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); see Hayward v. United States, 612 A.2d 224, 227 (D.C. 1992) *fn6 For example,

limits may be imposed to prevent harassment, prejudice, confusion of the issues, or repetitive, cumulative or only marginally relevant questioning, . . . to avert danger to or the humiliation of a witness, . . . or to guard against the danger that counsel will ask highly prejudicial questions of witnesses with the almost certain knowledge that the insinuations are false.

Scull v. United States, supra, 564 A.2d at 1164 (citations and internal punctuation omitted). Additionally, and of particular relevance to the instant case, a proper foundation must be laid before a cross-examiner may pursue a line of questioning suggesting that a witness is biased. Id. ("we are loath to allow cross-examination without the establishment of a proper foundation"); Jones, supra, 516 A.2d at 517 ("the questioner must proffer 'some facts which support a genuine belief' that the witness is biased in the manner asserted" (citations omitted)); White v. United States, 297 A.2d 766, 768 n.1 (D.C. 1972) (counsel "may not ask questions of a witness that are totally groundless" (citation omitted)); see also J. STRONG, MCCORMICK ON EVIDENCE § 49, at 187 (4th ed. 1992). Without a clear factual foundation, the cross-examiner must articulate "a 'well reasoned suspicion' rather than 'an improbable flight of fancy' to support the proposed cross-examination." Scull, supra, 564 A.2d at 1164 (citations and footnote omitted). Appellant's contention that the Sixth Amendment permits "skeptical questioning aimed at probing for the truth," notwithstanding the lack of a good-faith basis for an accusation of bias, has no support in the law. *fn7

In the case at bar, defense counsel at one point asked Tawana Owens, "Ma'am, isn't it a fact that gunman knew to wait for Vernice in that alley?" The government objected to this question, arguing that counsel lacked a good-faith basis for it. After hearing appellant's proffer, *fn8 the court sustained the objection on the ground that there was no foundation for the question or for any ...


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