Appeal from the Superior Court of the District of Columbia (CF1-2478-07) (Hon. Frederick H. Weisberg, Trial Judge) (Argued December 9, 2010 Decided December 23, 2010)
Before REID and FISHER, Associate Judges, and FERREN, Senior Judge.
FERREN, Senior Judge: After a jury trial, appellant Hernan Melendez was convicted of second degree murder while armed for beating Andres Benitez to death with a baseball bat.*fn1 He also was convicted of assault with a dangerous weapon for hitting Eric Umana in the head with the bat,*fn2 as well as possession of a prohibited weapon.*fn3 Melendez contends on appeal that the trial court violated his Sixth Amendment right to confront witnesses against him by precluding examination of William Luna for potential bias, namely, bias derived from the hope of currying favor with the government in connection with a sentence Luna was serving in another jurisdiction. We perceive no error and thus affirm.
The death of Benitez occurred during the early hours of January 28, 2007, on the east side of the 1200 block of 11th Street, N.W. Three residential apartment building security guards, Durand Covington, Randy Franklin, and Isabel Tavares, watched the incident from across the street and testified on behalf of the government. Although there were discrepancies among the three accounts, all testified that the incident unfolded as follows. A man later identified as Benitez was the first attacker. He swung a baseball bat at three men. The three stepped back, paused, and then rushed at Benitez, causing all four men to fall to the ground. Three men got up, one of whom retrieved the baseball bat, then stood over the one still down, Benitez, and struck him several times. As the beating was taking place a bystander, later identified as Eric Umana, approached and told the man with the bat to stop.
The man struck Umana on his head with the bat. Umana quickly fled the scene.
After the beating ended, the three went into a nearby alley on the south end of 11th Street. Security guards Franklin and Covington jumped in their cars in order to chase and seize the assailants. After losing sight of the men for no more than forty-five seconds, Covington and Franklin saw the group entering an apartment building on 10th Street. The guards ran into the building and seized the man carrying the baseball bat, later identified as appellant Melendez. They were unable to seize the other two, later identified as William and Yoni Luna.
Testifying for the government, Covington, Franklin, Tavares, and Umana identified Melendez as the person who had struck Benitez and Umana with a bat. Detective Jacqueline Middleton, who arrived on the scene after Melendez had been seized, testified that when she stood at the vantage point from which the guards had observed the crime, she could recognize faces as she looked across the street at the scene of the crime.*fn4
The government also presented evidence of blood spatter and DNA. According to the government experts who testified, the stains on appellant's jacket and hood had the characteristics of blood, and, based on the DNA profile found in that blood, the blood came from Benitez.*fn5 Further testimony revealed that Benitez's DNA could have been a contributor to the DNA on the barrel of the bat, and that both Benitez and appellant could have contributed to the DNA on the handle of the bat.*fn6
Appellant's theory of the case was misidentification -- that William Luna was the real perpetrator. Appellant took the stand in his own defense and testified that William had beaten Benitez and struck Umana with the baseball bat. Thereafter, said appellant, he "became scared and started to walk," whereupon William and Yoni Luna accosted him in the alleyway, struck him with the bat on the back of his head and his back, and forced him to take the bat as they neared the entrance of the apartment building on 10th Street. Appellant also introduced evidence of animus between William Luna and Benitez, namely, that a couple of weeks before this incident, Benitez had punched a man named Cristo Rivas, and that William Luna had been present during this altercation and told Benitez to leave Rivas alone. Finally, to rebut Detective Middleton's testimony, a Public Defender Service investigator testified that when she had gone back to the scene of the crime at night and stood where the security guards had stood, she could not see another person's face across the street where the crime had taken place.
Appellant premises his misidentification defense on his own
testimony,*fn7 the testimony of one of his cohorts,
William Luna,*fn8 and other evidence*fn9
that William Luna, not he, committed the murder. As explained
more fully below, appellant called Luna as an adverse witness in the
defense case. On cross-examination by the government, however, Luna
contradicted appellant's version of the events and testified that
appellant had beaten Benitez "hard" on the head with the bat "two or
three times" as Benitez lay on the ground.
In an effort to discredit Luna's testimony, therefore, appellant attempted to prove Luna's bias in favor of the government -- an effort the trial court derailed. Accordingly, appellant's sole argument on appeal is that the trial court erred, to his severe prejudice, by refusing to allow defense counsel to explore this alleged bias by eliciting testimony from Luna about a sentencing order against Luna in New York. More specifically, appellant contends that Luna was biased because Luna had violated that sentencing order but had reason to believe that the prosecutors in this case could help him deflect a contempt charge in New York if he testified in support of the government's case against appellant here in Washington.*fn10
The bias issue evolved as follows. As noted, counsel for appellant called William Luna to testify in the defense case as an adverse witness. Although Luna had initially invoked his Fifth Amendment rights, the government sought and received a compulsion order that required Luna to testify as to "all matters about which he may be interrogated" in appellant's case. Then, to protect Luna's right not to incriminate himself, the compulsion order also provided that "no testimony or other information compelled under th[e] order (or any information directly or indirectly derived from such testimony or other information) may be used against [him] in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with th[e] [o]rder."*fn11
During direct examination, defense counsel asked Luna whether, "at the beginning of February of 2007," he had called Norma Saravia, the mother of his children. Luna replied that he had called her and added, "I always talk with her." After establishing the nature of their relationship and where each person lived at the time, counsel asked Luna whether he had called Ms. Saravia after the January 2007 incident in which Benitez was murdered. Luna acknowledged that he had, and that he had "told her [his] problem" that the Benitez's family members and the police were looking for him, and that he wanted to hide. He then denied counsel's assertion that he also had told Ms. Saravia that he had killed someone in D.C. in self defense, and that if Ms. Saravia did not help him, he would kill her and her family. Shortly thereafter, Luna testified that he had pled guilty to aggravated harassment in March 2007 in New York "based on the things [he] had said to Ms. S[a]ravia." When counsel inquired whether Luna had "told [the New York Judge] that [he] said those things to Ms. S[a]ravia," Luna answered "yes," adding that he had "assume[d] responsibility." Counsel then repeated himself, asking Luna whether he had admitted to the New York Judge that he had made the statements counsel had asked him about. Luna answered "yes."*fn12 (Later, ...