Appeal from the Superior Court of the District of Columbia (F-6232-04) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before GLICKMAN, BLACKBURNE-RIGSBY, Associate Judges and FARRELL, Senior Judge.*fn1
After a three day bench trial, Henry Obiazor, appellant, was found guilty of two counts of misdemeanor sex abuse under D.C. Code § 22-3006 (2001) and one count of simple assault under D.C. Code § 22-404 (2001). Appellant raises two issues on appeal. First, appellant contends that he was deprived of his Sixth Amendment constitutional right to confront his accuser and present a full defense where he was prevented from introducing evidence to support a bias theory of a key witness. Second, appellant asserts that the trial court erred in excluding cross-examination and evidence about three prior claims the complainant, T.D., made regarding her abuse by adults or the source of marks on her body that were allegedly later determined to be false. We reverse and remand for a new trial because the trial court erred in precluding appellant from cross-examining T.D. for bias and by excluding evidence of other false claims of abuse, and under the circumstances of this case, the error was not harmless beyond a reasonable doubt.
Appellant's convictions arose from a December 20, 2003 incident in which T.D., the twelve-year old daughter of Henry Obiazor's girlfriend, Krishanna D., accused Mr. Obiazor of touching her buttocks, touching his penis to her thigh and giving her a hickey between her collarbone and shoulder. At the time, T.D. lived with and was taken care of by Angel D., her mother's cousin. T.D.'s mother and siblings lived separately with Mr. Obiazor in a one room apartment. On the night of December 19, 2003, T.D. arrived at her mother's apartment to spend the weekend. T.D.'s grandmother, In-grid D., was also spending the weekend at the apartment. The next afternoon In-grid D.*fn2 took one of T.D.'s siblings to a birthday party, leaving T.D. in the apartment with Mr. Obiazor and the two youngest children.Both In-grid and appellant stated that T.D. was expected to go to the birthday party also, but she decided to stay at the apartment instead. T.D. recalled that she was sleeping on the bed when she woke up and Mr. Obiazor sat down on the bed next to her. She said that he told her she was beautiful and began to rub her arm and buttocks through her clothing. T.D. testified that he also kissed and sucked her neck. T.D. stated that one of her younger siblings woke up and Mr. Obiazor left to fix a bottle for the child. At this point, T.D. went to the bathroom, but then returned to the bed.T.D. explained that Mr. Obiazor returned to the bed, unzipped his pants, and placed his penis on her thigh. T.D. pushed Mr. Obiazor away, grabbed some money, put on some shoes, left the apartment and walked to the hotel next door to call Angel D.
According to Garnet Coad, the hotel bellhop, T.D. seemed upset when she entered the hotel. Coad asked T.D. what was wrong and T.D. told him that Mr. Obiazor "tried to touch her." Coad helped T.D. place a call to Angel D. and then helped T.D. catch a cab back to Angel D's. Detective Williams arrived at Angel's apartment that evening and photographed the bruise on her neck and collarbone. A few days later, on December 23, 2003, Detective Williams conducted a videotaped interview of T.D.
We have held that cross-examination of bias is always proper, subject to reasonable limits. Clayborne v. United States, 751 A.2d 956, 962 (D.C. 2002). "[A] trial judge may not prohibit all inquiry into a witness' possible motive for bias about an event or circumstance that a jury might reasonably find as indicative of bias." Jones v. United States,853 A.2d 146, 153 (D.C. 2004) (citation omitted). A "wholesale" bar on the criminal defendant's inquiry into the possibility of a motive for bias violates the Sixth Amendment's Confrontation Clause. Brown v. United States, 683 A.2d 118, 126 (D.C. 1996) (citing Ford v. United States, 549 A.2d 1124, 1127 (D.C. 1988)). The Sixth Amendment's Confrontation Clause guarantees the right of a defendant in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. This right to confrontation is given effect by allowing a defendant the opportunity to cross-examine opposing witnesses. See Davis v. Alaska, 415 U.S. 308, 615-16 (1974). The ability to expose a witness's motive for testifying is a critical component of the cross-examination function. Id. at 316-17.
Appellant asserts that he was deprived of the ability to show his accuser's motive for lying because the trial court did not allow him an opportunity to cross-examine her about relevant prior sexual incidents. Specifically, when T.D. was five years old she alleged that her grandmother's boyfriend had sexually assaulted her. In that instance T.D. received a hickey mark in the same location (between her collar bone and shoulder) where she claims to have received a hickey mark in this instance from Mr. Obiazor. Appellant makes two assertions with regards to this evidence. First, appellant contends that the remarkable similarity between the two incidents is an improbable coincidence that tends to make the truth of T.D.'s allegation against appellant "less probable than would be the case without that evidence." Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977) (holding that evidence which makes the existence of a fact less probable is relevant and has probative value). Second, appellant proffers that when T.D. disclosed the incident with her grandmother's boyfriend, her mother reacted affectionately and protectively toward T.D. Appellant sought to introduce a bias theory that T.D.'s allegations against appellant were motivated by a desire to evoke the same attention and affection she had received from her mother as a result of her prior allegation.
The government first asserts that the two incidents are insufficiently similar to sustain the appellant's theory of improbable coincidence. In response to appellant's second contention the government asserts that appellant's bias theory is too vague and tenuous because the incidents occurred six or seven years apart and there is no evidence in between those times showing that T.D. did things to receive affection from her mother. The government's argument overlooks appellant's first contention that the striking similarities between the two incidents makes it more likely that the latter incident is a fabrication. Further, the government cites no authority to support their assertion that a prior incident must have happened within a limited time frame, or that there must have been intervening incidents to establish a nexus between the prior incident and the current one.
In Roundtree v. United States, 581 A.2d 315, 326 (D.C. 1990), this Court held that the defendant was not entitled to cross-examine the complaining witness regarding other prior sexual assault charges made by the witness. The Roundtree court reasoned that without showing that the prior allegations were false, there was no foundation established to use those prior allegations to challenge the complaining witness's veracity. Id. at 321. In Lawrence v. United States, 482 A.2d 374 (D.C. 1984), we held that the trial court committed a reversible error by excluding evidence of prior sexual allegations. Id. at 376-77 (holding that the trial court improperly prevented exploration into prior false accusations made by a key witness). We clarified the apparent discrepancies between Roundtree and Lawrence in Shorter v. United States, 792 A.2d 228 (D.C. 2001), noting that in Lawrence the decision was premised on an assumption by both parties that the allegations were indeed false, whereas in Roundtree the parties were in disagreement about the falsity of the allegations. Shorter, 792 A.2d at 234-35 (reconciling the Lawrence and Roundtree decisions).
The facts of this case are squarely outside the realm of Roundtree. In the case before us, the significance of the prior allegation does not rise and fall on the truth or falsity of the allegation. Rather, its arguable significance lies in the improbability of the same kind of injury having been inflicted on the child's body at the same location by two different men. In other words, the appellant's argument is that the earlier incident involving the grandmother's boyfriend gave T.D. a scenario, retrieved from memory, from which to falsify an accusation that another adult had given her a hickey in the same place. As defense counsel argued during oral arguments, if this were a signature crime being introduced as evidence against the defendant it would be admissible to establish a probability. Similarly, here, the striking resemblance between the two incidents leans in favor of admissibility to challenge T.D.'s credibility. Based on this reasoning, we think there was a sufficient proffer to warrant, at a minimum, some degree of cross-examination into the facts and circumstances of the prior incident with T.D.'s grandmother's boyfriend.
We think that appellant's second contention that T.D. was biased because of her motive to evoke the same caring reaction she got from her mother after she made the first allegation of sexual misconduct also warranted further inquiry through cross-examination. The trial court precluded almost all questioning related to this theory because she believed that an inference that T.D. might be motivated to fabricate claims of sexual abuse to get her mother's attention was too psychologically complex to be made without expert testimony.*fn3 We do not think such an inference was beyond the ability of a fact finder to reasonably draw without expert testimony. We think evidence and argument that since a child had received special attention and affection from her mother upon reporting identical mistreatment in the past, she had an incentive to falsify events on the present occasion to receive a similar gratifying response could fairly be entrusted to the fact finder. Moreover, contrary to the government's assertion, the earlier incident that allegedly aroused the mother's special show of affection was not unduly remote, because the defense proffered that in a recorded interview ...