Before Schwelb and Farrell, Associate Judges, and Nebeker, Senior
The opinion of the court was delivered by: Nebeker, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Michael L. Rankin, Trial Judge)
This is an appeal from convictions after a jury trial of one count of first-degree cruelty to children *fn1 (against victim V.B.), *fn2 four counts of second-degree cruelty to children *fn3 (against victims M.M., T.S.M., V.B., and L.B.), and two counts of simple assault *fn4 (against victims T.S.M. and C.B.), the lesser included offense of the aggravated assault *fn5 charges in the indictment. Several of appellant's convictions were for the lesser included offenses of the charges on which appellant had been indicted. Appellant was acquitted of one count of second-degree cruelty to children and one count of aggravated assault. The convictions stemmed from the physical abuse over the course of approximately five months of the six children of appellant's wife, Vera McCloud, three of them his own and three stepchildren. The first-degree cruelty conviction and one of the second-degree cruelty convictions arose from a specific incident on November 11, 1997, in which appellant punched his six-year-old stepdaughter V.B. in the leg, breaking her femur. Except for the November 11th incident, the children's testimony was corroborated by an adult eyewitness.
Appellant challenges all of his convictions on the grounds that (1) the trial court abused its discretion in denying appellant's motion to sever, and (2) his Sixth Amendment Confrontation Clause right was violated when the trial court effectively foreclosed cross-examination of the adult eyewitness as to possible bias since her three adult sons were, at the time of trial, being investigated for sexual abuse of two of the children. The trial judge had ruled ex parte that the prosecution did not need to divulge to the defense the factual basis for that predicate for bias. The court holds that if the witness knew of the charges against her sons, appellant was denied his right of confrontation. The record is remanded for further proceedings, detailed below. We also hold that the denial of severance was not error. Thus, the convictions as to the November 11, 1997, incident are affirmed.
The prosecution's theory of the case was that appellant had systematically disciplined the children with violent and excessive force. Appellant's defense was essentially that someone else, probably the children's mother, had actually caused the injuries with her own violent discipline, and that the children were lying at her behest by blaming appellant.
The three oldest children, L.B., C.B., and V.B., testified in a reasonably consistent fashion to the details of the incident in which V.B.'s leg was broken. L.B. and C.B. also testified more generally about the systematic assaults and injuries that they and the younger children had suffered during the charged period at the hands of appellant. They also testified that they had been beaten by their mother, Vera McCloud, multiple times in a manner similar to appellant's abuse, but that appellant hit harder. However, C.B. also testified that he had been instructed in the past by Vera McCloud that any beatings suffered at her hands should be blamed on appellant. Moreover, each of the three children testified that they wished to be reunited with their siblings *fn6 and that people including their mother had told them that, in order to be reunited, they must testify that appellant had beaten all of the children.
Appellant's cousin, Mary Ishmell, was the only adult witness to corroborate the children's testimony about acts of physical abuse for which appellant was charged, except for the November 11th incident. At various times, the six children, appellant, and Vera McCloud had resided with Mary Ishmell and her three adult sons, Robert, Dewayne, and Dominic. *fn7 During part of the time period charged in the indictment, the late summer and early fall of 1997, only the children lived with the Ishmells, although appellant and Vera McCloud spent time with the children in that home. Ishmell gave eyewitness testimony to appellant's systematic violence against all but the youngest child, T.K.M.
Ishmell also testified that she had seen the children's mother, Vera McCloud, beat them violently and instruct the children that, if Protective Service employees should ask who hit them, they should blame appellant. Ishmell also acknowledged that L.B. and V.B. would lie readily for Vera McCloud. On direct examination, Ishmell testified further that she no longer had any relationship with appellant, and that she and Vera McCloud were no longer speaking as a result of an argument that had taken place in the courthouse on the preceding day.
After the jury had been selected but not sworn, the prosecutor approached the bench ex parte and informed the trial court that he had recently learned of allegations that Mary Ishmell's three sons had sexually abused L.B. and V.B. *fn8 Recognizing that this new evidence created a potential bias issue, the prosecutor nonetheless argued to the trial court that it lacked relevance sufficient to require disclosure to the defense because, first, the prosecution had already given the defense "plenty of other bias information," including the allegation that Robert had raped Vera McCloud, thereby fathering the youngest child, T.K.M., and that appellant had subsequently threatened both Robert and Mary Ishmell; *fn9 and second, it was not known whether Mary Ishmell was aware of the allegations against her sons.
The trial court agreed with the prosecutor, ruling that the allegations against Mary Ishmell's sons were not relevant, "either as probative or impeaching evidence," and thus need not be revealed to the defense, although the court reserved the right to revisit the issue during trial if the circumstances should demand it. When defense counsel asked the trial court if he should be informed of anything that had transpired at the ex parte bench conference, the trial court responded in the negative. The defense remained unaware of the allegations against the Ishmell brothers and the trial court did not revisit its ruling at any point. Apparently, the ex parte revelations became known to appellant when the trial transcript was prepared for this appeal.
Analysis of Severance Argument
Following a hearing at which appellant's Super. Ct. Crim. R. 14 motion to sever counts for separate trials was considered, the trial court denied the motion largely on the basis of Gezmu v. United States, 375 A.2d 520 (D.C. 1977). There we held that evidence of earlier domestic violence toward the victim was admissible as relevant to show both malice and motive on the part of the defendant. See id. at 522. See also Hill v. United States, 600 A.2d 58 (D.C. 1991); Drew v. United States, 118 U.S. App. D.C. 11, 16, 331 F.2d 85, 90 (1964) (holding that "other crimes evidence" meeting clear and convincing standard is admissible to show motive, intent, absence of mistake or accident, common scheme, or identity). The trial court concluded that, given the allegations of appellant's abuse against all six children, each of them stood "in the same relationship" to the defendant and, thus, as a group formed one unit essentially equivalent to a domestic partner of appellant under Gezmu.
Appellant argues that the trial court's denial of his motion to sever was erroneous in that it wrongly treated the children as a unit under the motive exception. Appellant contends that acts of violence against one child would not demonstrate a hostile motive against any of the other children individually, nor, absent more, would it demonstrate that appellant had a hostile motive toward the others based upon their membership in the sibling group. See Robinson v. United States, 623 A.2d 1234, 1239 (D.C. 1993) (citing People v. Lampkin, 457 N.E. 2d ...