Appeal from the Superior Court of the District of Columbia (CF1-27084-08) (Hon. Jennifer M. Anderson, Trial Judge)
The opinion of the court was delivered by: Wagner, Senior Judge:
Before FISHER and THOMPSON, Associate Judges, and WAGNER, Senior Judge.
Following a jury trial, appellant, Jonathan Austin, was convicted of one count of first-degree felony murder with aggravating circumstances (D.C. Code §§ 22-2101 & -2104.01 (b)(4)) and one count of cruelty to children (D.C. Code § 22-1101). He argues for reversal on the grounds that the trial court erred in:
(1) precluding the cross-examination of a key government witness; (2) depriving him of his constitutional right to present a defense; (3) not excluding the testimony of the Chief Medical Examiner for the District of Columbia; and (4) denying his motion for a new trial. Finding no reversible error, we affirm.
The charges against appellant arose out of the death of Ronjai Butler, a 21-month old child, who died on November 16, 2008 at Howard University Hospital. The government's evidence showed that before his death, Ronjai was living with his mother, Michelle Butler, and his 35-month old sister, Ja.B., in an apartment on North Capitol Street. Appellant, Ms. Butler's boyfriend, had been living with her for about one year. The relationship had soured, and Ms. Butler asked him to move and had stopped making his car payments. Shortly before noon, Ms. Butler left the apartment to run errands with her daughter, 13-year old J.D., who lived with her only on weekends. According to the testimony of Ms. Butler and J.D., Ronjai was playing and acting normally when they left. When they returned home less than an hour later, the child was on the bed, crying, and "struggling" to breathe. A short time later, the child became unresponsive, and appellant suggested putting the child in a tub of cold water. The child tried to stand, and appellant pushed him back into the tub by the waist. J.D. testified that she saw bruises on the child's face, arms, chest, legs, and stomach. When Ms. Butler splashed cold water on the child, he began to cry, and shortly thereafter he stopped breathing.
Ms. Butler and appellant took Ronjai to Howard University Hospital. When they arrived at the hospital, the child had no pulse. The hospital staff performed cardio-pulmonary resuscitation (CPR) by compressing the middle of his chest, but they could not resuscitate him. Appellant told Ms. Butler that the doctors said that Ronjai had suffered a heart attack.
The government presented evidence that appellant was observed later banging his head against the wall and saying that he would be blamed for the child's death. A worker at the day care center that the child attended until one month before his death testified that appellant frequently picked the child up from the center and that Ronjai was afraid of appellant. She testified that she asked appellant why Ronjai resisted going with him, and appellant said that they did not get along and that Ronjai gave him a hard time.
Dr. Marie-Lydie Pierre-Louis, the Chief Medical Examiner for the District of Columbia, conducted the autopsy for the child. She testified that Ronjai, who was 30 inches tall and weighed 26 pounds, had bruises on his forehead and skull that occurred three or four hours before his death was pronounced at 4:10 p.m., and numerous abrasions less than 24 hours old. She testified that he had complex, depressed fractures of the skull that caused his brain to swell, eventually causing his breathing and heart to stop. She testified that the child had other serious injuries, including rib fractures and lacerations to his spleen and liver. Dr. Pierre-Louis determined that the cause of Ronjai's death was multiple blunt-impact trauma, including skull fractures, contusions, and lacerations of his internal organs with internal hemorrhage. She determined that the manner of death was homicide. She found that Ronjai did not have asthma, that he was not suffering from acute pneumonia, and that he had no abnormalities in his heart or lungs.
Dr. Stanton Kessler, a board-certified pathologist, testified as an expert witness for the defense. He rendered an opinion that Ronjai's skull fractures occurred after his death. He also testified that the injuries to the child's liver and spleen and one rib fracture were caused by the administration of CPR improperly at the hospital. Dr. Kessler testified that Ronjai had severe pneumonia that caused his breathing problems and that he died as a result of bronchial pneumonia with sepsis.
Dr. Sarah Colvin, a board-certified neuropathologist and Deputy Chief Medical Examiner examined Ronjai's skull and brain, and she reviewed the autopsy report and Dr. Kessler's report. She concluded that Ronjai suffered a depressed skull fracture that caused an intra-dural hemorrhage resulting in bleeding and swelling in his brain which depressed his heart and lung functions, eventually leading to his death. She concluded that the multiple bruises on the child occurred while he was alive and that his injuries could not have resulted from CPR. She noted that CPR would not leave knuckle and wristwatch impressions that could be seen in the bruises on Ronjai's chest.
Appellant argues that the trial court committed constitutional error in denying his request to cross-examine a government witness, Ms. Butler, on an issue of bias. Specifically, he contends that the trial court precluded him from questioning Ms. Butler concerning an investigation by the Child and Family Services Administration (CFSA) into assault and other allegations made against her by her daughter, J.D. Appellant argues that the trial court's ruling precluded him from exposing Ms. Butler's motive for currying favor with the government and reasons for inconsistencies between her trial testimony and pre-trial statements. The government responds that appellant did not advance this bias theory in the trial court, never attempted to cross-examine Ms. Butler about the investigation, and did not object to the court's rulings related to Ms. Butler's cross-examination. The government contends that, in any event, the CFSA investigation was properly excluded as a collateral matter because it was unrelated to the death of Ronjai Butler, and the case involving J.D., Ronjai's sister, had been closed approximately one year earlier.
A. Generally Applicable Legal Principles
"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) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)) (other citations omitted). This important right is the accused's principal means for testing the credibility of a witness against him or her. Gaines v. United States, 994 A.2d 391, 399 (D.C. 2010) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). Since exposure of a witness' biases or motives for not telling the truth is a major function of cross-examination, bias is "'always a proper subject of cross-examination,'" which takes on "'enhanced significance where the credibility of the key government witness is in issue.'" Gardner, 698 A.2d at 996 (quoting Jenkins v. United States, 617 A.2d 529, 531 (D.C. 1992)). However, the trial court "retain[s] wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679.
The record supports the government's assertion that appellant did not raise in the trial court the bias challenge that he presents on appeal. Initially, the issue concerning the CFSA investigation was raised by the government in connection with the anticipated testimony of J.D., not Ms. Butler. Prior to trial, the government filed a "Motion to Preclude Cross-Examination of Witness Concerning Alleged Suicidal Ideation" in which it sought to preclude appellant from cross-examining J.D. concerning her alleged suicidal ideation. In its motion, the government explained that on December 5, 2007, J.D., the victim's sister, told one of her teachers that she was being forced to care for her younger siblings, that her mother had thrown a phone at her in the past and threatened to beat her, and that she planned to kill herself. CFSA investigated the allegations, but it closed the case because it found inconclusive the allegation that Ms. Butler hit J.D. and no indication that J.D. was mentally ill or being forced to baby-sit. Therefore, the government argued that the allegations involved in the CFSA investigation were irrelevant because they occurred before the victim in this case "arrived on the scene," and "because there is no indication of false statements by J.D. or any mental illness that would have any impact on the credibility of her testimony."
When the parties addressed the matter with the court during trial, defense counsel explained his theory for cross-examining Ms. Butler in this area as follows:
It is relevant because ultimately the evidence in the case is going to come down to whether the child[, Ronjai,] was struck in the head. . . . [W]hether Ms. Butler struck the child in the head or whether someone else who was present in the home struck the child in the head. It goes to her credibility, because it has been alleged that she struck another child in the head.
The trial court remarked that this appeared to be like other crimes evidence that the defense was seeking to use improperly to show propensity. The following colloquy ensued between the court and counsel:
Defense Counsel: . . . I am not going to get into the whole investigation - is whether or not her mother has ever struck her in the face. Because the mother has a reason to testify in a fashion to make it appear that Mr. Austin is responsible for this, because she is aware that if she was the person who, in fact, struck [her daughter] in the face and this allegation has been raised before about her, then she would appear to be the more culpable suspect.Prosecutor: But it was never raised about this child, . . . ...