Appeals from the Superior Court of the District of Columbia. (FEL-4902-01) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and FERREN, Senior Judge.
At the conclusion of a jury trial, appellant Melvin Brown was acquitted of first-degree murder and two counts of assault with intent to kill, but convicted of second-degree murder while armed and two counts of assault with a dangerous weapon, as well as carrying a pistol without a license, threats, and three counts of possession of a firearm during a crime of violence. He was subsequently sentenced to twenty-five years imprisonment. On appeal, he argues that the trial court committed reversible error in curtailing the cross-examination of a key government witness with respect to threats made against her and the resulting bias against Mr. Brown that those threats may have engendered. We agree and remand for a new trial.
Because this opinion deals primarily with the question of whether cross-examination on the issue of bias was unduly curtailed, only a brief recounting of the facts leading to Mr. Brown's indictment - most of them undisputed - is necessary. We also explain the government and defense theories at trial, and the events at trial underlying the charge of bias.
Mr. Brown had a romantic relationship with a young woman by the name of Falah Joe, with whom he had a child. On the night in question, the two had an argument outside of Ms. Joe's workplace. During the argument Greg Williams pulled up in a pickup truck with Perry Thompson in the passenger seat. Both knew Ms. Joe, and they stopped to offer her a ride. Mr. Brown had no relationship with the two men, and Ms. Joe had not expected to see them that night. Mr. Thompson got out of the truck, then slid the seat forward to let Ms. Joe in, and she entered. After Mr. Thompson got back in the truck, but before he closed the door, Mr. Brown pulled out a gun*fn1 and shot Mr. Williams and Mr. Thompson multiple times each. Mr. Thompson died on the scene, Mr. Williams survived, and Ms. Joe was not hit.
Mr. Williams testified at trial that Mr. Brown started shooting for no reason apparent to him, and that Mr. Brown checked to his left and his right, as if to look for witnesses, before he fired. Mr. Brown testified that Mr. Thompson had made a threatening statement and was reaching under the passenger seat, as though for a gun. Thus, Mr. Brown's defense theory was that he was acting in self defense. The government's theory was that Mr. Thompson reached under the passenger seat for the bar that triggers the seat to slide back after the seat had been moved forward to allow Ms. Joe to climb into the back seat of the pickup.*fn2 During their later search of the pickup truck, the police found a loaded, semi-automatic pistol that evidence at trial showed was owned by Mr. Thompson.
At some point during Ms. Joe's trial testimony, and perhaps earlier in the trial, a spectator, to whom we shall refer as Troy Hall,*fn3 was present in the courtroom. When later questioned by the court, Mr. Hall explained he was related to Mr. Thompson "by blood; [and to] Ms. Joe by marriage." During Ms. Joe's redirect examination, Mr. Brown's counsel stated in a bench conference that his co-counsel and Mr. Brown had observed Mr. Hall, at that time unidentified, making threatening gestures to Ms. Joe as she testified.*fn4 Counsel represented that Ms. Joe concentrated on Mr. Hall as she continued her testimony, as though he were vetting it. He requested a recess after the redirect examination and permission to recross on the subject. Both requests were granted. Redirect concluded, and Mr. Brown's counsel began recross, but then renewed his request for a recess, which was also granted.
Once the jury was dismissed, Mr. Brown's counsel proffered that he had been told by Ms. Joe prior to trial that after the shooting but before Mr. Brown was taken into custody, Mr. Hall had threatened her on one occasion, and had told her on numerous occasions that he was frustrated because he was unable to find and kill Mr. Brown. The trial court ruled that Mr. Brown's counsel could ask Ms. Joe about any gestures Mr. Hall may have made to her in court, and whether she was afraid of him. Counsel could not ask her why she was afraid of him, because the court did not want a "side trial, [on] whether he engaged in certain conduct or intended to go after the defendant or have others go after the defendant." The court further stated that any questioning outside of what happened in the courtroom would be "too ancillary, especially [since Ms. Joe] has denied witness protection."
When questioned by the court about the alleged hand gestures, Mr. Hall stated that he left the courtroom to go to the restroom, and that at another point he turned his vibrating cell phone off. Other than that, he denied having made any gestures. On further questioning, he stated that he had also clasped his hands together to lean forward on the seat in front of him. The court requested that he not return after lunch, to which he replied, "No problem."*fn5
After the luncheon recess, the jury was again excused so the court could question Ms. Joe about Mr. Hall. Ms. Joe stated that at one point in her testimony, "[H]e just looked at me like, you know, like a face, just a different face I saw from what I am used to seeing from him," and added that "[i]t looked like he was mad because he pulled a gun on me before with my son and I didn't do anything to him." She stated that she was scared "because he has done that, and he was here, and he has threatened me before about my son's father. He told me he wanted to kill him."*fn6
Mr. Brown's counsel argued that Ms. Joe's history with Mr. Hall was needed to put her discomfort before the jury in the right context. As counsel argued, a "mad face" on its own may not mean much, but a "mad face" from someone who threatened her and actively tried to find Brown in order to kill him is an entirely different matter. The prosecutor countered that there was no basis for cross-examining Ms. Joe before the jury on her history with Mr. Hall, because although Ms. Joe stated that she felt uncomfortable, there was no visible change in her demeanor. The court let the earlier ruling stand, stating that questioning would only be permitted with respect to how Ms. Joe felt in court, but not about her outside dealings with Mr. Hall. Thus, Ms. Joe testified ...