Appeals from the Superior Court of the District of Columbia (CF3-7957-07 and CF2-6099-09) (Hon. Lynn Leibovitz, Trial Judge)
Before FISHER and THOMPSON, Associate Judges, and STEADMAN, Senior Judge. FISHER, Associate Judge:
Appellant Ronald Coles challenges his convictions for aggravated assault, resisting a police officer, and various offenses related to his illegal possession of a firearm and ammunition, claiming that the trial court violated his Sixth Amendment rights by precluding him from pursuing certain lines of cross-examination. We agree, and therefore reverse all but one of his convictions and remand for a new trial.*fn1
On April 3, 2007, Metropolitan Police Department officers Hopper, Carey, and Pappas were patrolling the Trinidad neighborhood when they observed Mr. Coles and another man walking down the street while holding styrofoam cups. Suspecting that the cups might contain alcohol in violation of the District's open container law, D.C. Code § 25-1001 (a)(1) (2001), one of the officers asked the men what was in them. Appellant Coles "immediately bolted." As he ran away, Officer Hopper noticed that appellant was holding one hand in front of his midsection as if he were carrying a firearm in his waistband. The officers pursued Mr. Coles and, once they caught up with him, officers Hopper and Carey attempted to arrest him. During the ensuing struggle, both Mr. Coles and Officer Hopper were shot, purportedly by a single bullet which passed through Officer Hopper's calf before lodging in Mr. Coles' thigh, where it remains. A Glock 22 (.40 caliber) pistol containing an expended cartridge was recovered from the scene.
At trial,the prosecution sought to prove that Mr. Coles had been carrying the Glock 22 pistol and had fired it during the struggle, resulting in the injuries to both men.*fn2
The defense argued that one of the police officers had unjustifiably shot Mr. Coles, and that the three officers then colluded amongst themselves to cover up the shooting. According to the defense, the physical evidence suggested that the officers had fabricated their stories. For instance, the defense argued that a single bullet fired from a gun near Mr. Coles' waist could not have traveled down to hit Officer Hopper's calf and then journeyed back up to lodge in Mr. Coles' thigh.
To support its theory of a cover-up, the defense brought out numerous inconsistencies in the officers' stories, including their testimony about the way Mr. Coles had held his hands while running, whether and when Officer Hopper had yelled "He's got a gun," and how Officer Hopper was positioned when the gun went off. The defense also emphasized the officers' motives to lie and their opportunity to collude by highlighting that the three officers worked together everyday, had "each other's backs," and admitted that they had talked about the shooting to try to figure out how both individuals had been shot.
In addition, the defense sought to demonstrate that Officer Hopper had a motive to hide his own misconduct and thereby avoid disciplinary action. Officer Hopper admitted that he had drawn his firearm while pursuing Mr. Coles. Over the prosecution's objection, the trial court permitted the defense to cross-examine Officer Hopper about two police regulations that may have prohibited him from drawing his weapon in these circumstances.*fn3 However, the court prohibited cross-examination about other police regulations that require officers to "immediately" file a report when they draw and point their firearms*fn4 and to be sequestered during the resulting investigation.*fn5 The court concluded that these latter regulations were not relevant to whether Officer Hopper had a motive to alter his testimony. Moreover, deviation from these regulations would not tend to prove that the officers had colluded. The defense was thus precluded from eliciting testimony regarding Officer Hopper's three-week delay in filing his report, whether he had copied portions of his report from that prepared by Officer Carey, and whether he and the other officers had spoken about the incident in violation of a regulation requiring sequestration. However, the defense was permitted to use the officer's report to impeach his trial testimony.
After a day of deliberation, the jury returned partial verdicts convicting Mr. Coles of failing to appear on the original date for trial,*fn6 but acquitting him of assault with a dangerous weapon*fn7 and a related count of possession of a firearm during a crime of violence.*fn8 The next morning, the jury sent out a note stating that it was unable to reach unanimous verdicts on the remaining seven counts.The jury resumed deliberations after receiving an anti-deadlock instructionand ultimately convicted Mr. Coles of all of the remaining charges: aggravated assault while armed;*fn9 assaulting, resisting, or interfering with a police officer while armed;*fn10 two counts of possession of a firearm during a crime of violence;*fn11 carrying a pistol without a license;*fn12 possession of an unregistered firearm;*fn13 and unlawful possession of ammunition.*fn14
II. Legal Framework and Analysis
Mr. Coles claims that the trial court violated his Sixth Amendment right to confront the witnesses against him when it prohibited him from pursuing lines of cross-examination that (he claims) would have provided evidence that the government's key witness colluded with other officers to cover up his own misconduct. These topics included Officer Hopper's delay in filing an internal police report, the inference that portions of his report were copied from Officer Carey's report,*fn15 and that Officer Hopper had spoken with other officers about the incident in violation of sequestration regulations. Because we agree that Mr. Coles had a constitutional right to pursue some, though not all, of this cross-examination, and because we further conclude that the preclusion of that cross-examination was not harmless beyond a reasonable doubt, we reverse all but one of his convictions*fn16 and remand for a new trial.*fn17
"The Sixth Amendment grants an accused the right to confront and cross-examine the government's witnesses against him." Gardner v. United States, 698 A.2d 990, 996 (D.C. 1997). "Cross-examination 'is the principal means by which the believability of a witness and the truth of his testimony are tested.'" Gaines v. United States, 994 A.2d 391, 399 (D.C. 2010) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). "[T]he opportunity for meaningful cross-examination therefore 'is ...