Argued: September 30, 2014.
Appeal from the Superior Court of the District of Columbia. (CTF-9146-12). (Hon. Heidi M. Pasichow, Trial Judge).
Grey Gardner for appellant.
John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior Judge.
Newman, Senior Judge :
In this appeal, we are confronted with the contention that a trial judge abused her discretion in sua sponte invoking the " rule on witnesses" to exclude an expert
witness called by the defense from hearing a portion of the testimony of the principal fact and expert witness called by the government. We find an " erroneous exercise of discretion," and the prejudice required to constitute an " abuse" thereof. Thus, we reverse.
In a bench trial, Sanchez was tried for driving under the influence, D.C. Code § 50-2201.05 (b)(1) (2009). The government's chief witness, Carll, a uniformed member of the U.S. Capitol Police, testified both as a fact witness and as an expert. On direct examination, he testified to the events leading to his stopping the vehicle that Sanchez was driving and that caused him to order her out of the vehicle. He testified that he administered three sobriety tests: the horizontal gaze nystagmus (HGN); the walk and turn; and the one-leg stand. He described Sanchez's performances on these tests, which, coupled with the odor of alcohol on her breath, led him to conclude that she was operating her vehicle while under the influence. He arrested her. At the police station, Sanchez was advised by the officer who had transported her, Fleming, of the Implied Consent Act. She declined to be tested. The form reflecting her so declining was admitted into evidence.
After Carll testified on direct examination, counsel for Sanchez commenced cross-examination concerning his methodology in administering the field sobriety tests. He was soon interrupted when the trial judge summoned both counsel to the bench and stated:
At this point, I don't think that your expert should be in the courtroom. He's heard the direct examination, and I don't really think it's appropriate for him to hear the cross, so I'm going to ask him to wait outside, because -- if the Government had objected to him hearing the direct, I might have considered excluding him, because it seems to me that the questions that you ask him must be based on ...