Green v. United States

         Submitted May 18, 2017

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          Appeal from the Superior Court of the District of Columbia, (DVM-1962-15), (Hon. Zoe Bush, Trial Judge)

          Rupa Puttagunta, Chevy Chase, for appellant.

         Anne Y. Park, Assistant United States Attorney, with whom Channing D. Phillips, then United States Attorney, and Elizabeth Trosman, Washington, Elizabeth H. Danello, and Brittany Keil, Assistant United States Attorneys, were on the brief, for appellee.

         Before Glickman and Easterly, Associate Judges, and Steadman, Senior Judge.

          OPINION

         Easterly, Associate Judge:

         Kevin Green appeals from his conviction after a bench trial for simple assault^[1] following an altercation he had with Krystal Walker, a former romantic partner and the mother of his child. We focus on his claim that his Sixth Amendment right to confront the witnesses against him was violated when the trial court denied him the opportunity to recross-examine Ms. Walker after the government, on redirect and at the trial court’s invitation, played a recording of Ms. Walker’s call to 911 and moved it into evidence. Because the recording contained new, material information in this she-said-he-said case— where the issue was whether the government disproved Mr. Green’s claim of self-defense by establishing

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that he was the first aggressor or used excessive force— we hold that Mr. Green’s constitutional right was violated and that this violation was not harmless beyond a reasonable doubt. Accordingly, we reverse.

          I. Facts and Procedural History

          The prosecution theory was that Mr. Green attacked Ms. Walker while she was packing to move out of their shared apartment. The defense theory was that Ms. Walker incurred her injuries when she attacked Mr. Green and he tried to fend her off. The government called two witnesses: the officer who responded to the apartment after the incident, and Ms. Walker, who testified that Mr. Green had escalated a verbal altercation into a physical one by pushing her into walls (in one instance with enough force to leave a hole) and throwing her against a kitchen countertop. During Ms. Walker’s direct examination, the government made no mention of her call to 911, did not identify it as an exhibit, and did not seek to move the recording into evidence.

         On cross-examination, defense counsel sought to demonstrate that Ms. Walker’s account of the incident was subject to question. Specifically, defense counsel sought to elicit testimony from Ms. Walker about certain statements that she had made when she called the police. When Ms. Walker— who acknowledged that she might be confusing this incident with another and was uncertain about the sequence of events— informed counsel that she did not remember what she had told the 911 operator, counsel refreshed her recollection with snippets of the recording.^[2] Ms. Walker then testified about what she had told the police over the phone. Counsel did this three times.^[3] Counsel never impeached Ms. Walker directly with the recording.

         Thereafter, the trial court invited the government to move the full 911 recording into evidence, which the government did during its redirect of Ms. Walker.^[4] Both before and after the call was played,^[5] defense ...