Submitted May 18, 2017
Appeal
from the Superior Court of the District of Columbia
(DVM-1962-15) (Hon. Zoe Bush, Trial Judge)
Rupa
Puttagunta for appellant.
Anne
Y. Park, Assistant United States Attorney, with whom Channing
D. Phillips, then United States Attorney, and Elizabeth
Trosman, 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.
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 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 counsel repeatedly asked the court
to permit recross-examination of Ms. Walker.[6] The trial court
rejected these requests. The only statement the court made in
the way of explanation came after counsel's last request
for recross:
I heard it for the first time. You didn't. You had the
tape. You played what you wanted to play on the tape. You
asked her about what you wanted to play of the tape. And I
haven't heard anything so far that would give me any
reason to allow you to recross the witness.
II.
Analysis
A
foundation of our adversarial process is the ability of both
parties to present, and challenge, live witnesses with
personal knowledge of the events or issues in question. In
criminal cases, a defendant's right to confront the
witnesses against him is protected by the Sixth Amendment.
U.S. Const. amend. VI. Generally, this right is satisfied if
defense counsel is given the opportunity to cross-examine the
government's witnesses. See Guzman v. United
States, 769 ...