May 18, 2017
from the Superior Court of the District of Columbia,
(DVM-1962-15), (Hon. Zoe Bush, Trial Judge)
Puttagunta, Chevy Chase, for appellant.
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
Glickman and Easterly, Associate Judges, and Steadman, Senior
Green appeals from his conviction after a bench trial for
simple assault 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
courts invitation, played a recording of Ms. Walkers 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. Greens claim of self-defense by establishing
that he was the first aggressor or used excessive
force— we hold that Mr. Greens constitutional right
was violated and that this violation was not harmless beyond
a reasonable doubt. Accordingly, we reverse.
I. Facts and Procedural History
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. Walkers 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.
cross-examination, defense counsel sought to demonstrate that
Ms. Walkers 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. Ms. Walker then testified about
what she had told the police over the phone. Counsel did this
three times. Counsel never impeached Ms. Walker
directly with the recording.
the trial court invited the government to move the full 911
recording into evidence, which the government did during its
redirect of Ms. Walker. Both before and after the call was
played, defense ...