Brown v. US, No. 99-CM-241.

• Decision Date: 21 December 2000
• Docket Number: No. 99-CM-241.
• Citation: 763 A.2d 1137
• Parties: Latasha BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

763 A.2d 1137

Latasha BROWN, Appellant, v. UNITED STATES, Appellee.

No. 99-CM-241.

District of Columbia Court of Appeals.

Argued July 27, 2000.

Decided December 21, 2000.

Jennifer Lanoff, Public Defender Service, with whom James Klein, Jackie Frankfurt, Jeffrey S. Berman, Public Defender Service, were on the brief for appellant.

Patricia Sulzbach, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Roy McLeese, III, Assistant United States Attorneys, were on the brief for appellee.

Before SCHWELB, Associate Judge, and BELSON and KING, Senior Judges.

BELSON, Senior Judge:

Appellant Latasha Brown was found guilty in a non-jury trial of one count of simple assault.¹ Appellant argues that the trial court committed reversible error in limiting her cross-examination of a police officer who took part in the arrest and precluding redirect examination of appellant's only witness. We disagree and affirm.

I.

On the evening of November 27, 1998, Steven Williams telephoned the police and requested assistance in picking up his children from 1641 V Street, Southeast, where their aunt, appellant Latasha Brown, resided. Williams had been issued a restraining order which barred him from any contact with the mother of his children. He asked for the help of the police to avoid any possible confrontation when picking up his children, of whom he had custody. Officers Joseph Cabillo and Arleen Marsham-West responded to assist him.

While Williams remained outside of the building in which appellant resided, the police knocked on the apartment door and identified themselves to the occupants. Appellant exited the apartment building and walked toward Williams. She was "very loud and boisterous, fussing and cursing at [Williams]." Despite several requests by the police officers to calm down, appellant continued to curse at Williams and refused to go back into her apartment. Appellant swung at Officer Cabillo with a closed fist when he attempted to arrest her for disorderly conduct. He was able to avoid being struck by ducking down. Appellant's sister then jumped on Officer Cabillo's back to prevent him from handcuffing appellant. Officer Marsham-West subdued appellant's sister. Officer Cabillo was then able to handcuff appellant and arrest her.

II.

Appellant first contends that the trial court erred in limiting the cross-examination of Officer Cabillo regarding whether he complied with proper police procedure after an assault on a police officer. Appellant wished to explore three matters: (1) the extent of paperwork that Officer Cabillo completed following the incident; (2) whether the officer interviewed any witnesses after the arrest; (3) and the officer's familiarity with Metropolitan Police Department General Order 701.3 ("MPD General Orders") regarding police procedures for handling assaults on police officers. According to defense counsel, the purpose of such questioning was to establish bias (a matter not raised on appeal) and to call into question the credibility of the arresting officer. Before this court, appellant asserts that Officer Cabillo failed "to locate and take statements from all witnesses to an assault on a police officer" as required by the general order and this failure reflected on the officer's credibility and was "evidence that the assault never took place."

An evidentiary ruling of the trial court is reviewed for abuse of discretion. This court will set aside an exercise of trial court discretion "only upon a showing of grave abuse." Taylor v. United States, 661 A.2d 636, 643 (D.C.1995) (quoting Irick v. United States, 565 A.2d 26, 39-40 (D.C. 1989)); see Irving v. United States, 673 A.2d 1284, 1290 (D.C.1996)

. Accordingly, with regard to cross-examination, "the extent of that examination is within the sound discretion of the trial court, and we will reverse only on a showing of an abuse of that discretion." Deneal v. United States, 551 A.2d 1312, 1315 (D.C.1988) (citations omitted); Jones v. United States, 516 A.2d 513, 517 (D.C.1986) (holding the extent of cross examination is within the sound discretion of the trial court). "[W]e limit our inquiry to whether the trial court's decision was fair and rational." Taylor, supra, 661 A.2d at 643.

Applying the above standard, we find no abuse of discretion in the trial court's evidentiary ruling. It is important to observe that the trial court did not preclude "an entire line of relevant cross-examination" as claimed by appellant. The trial court instructed defense counsel that he could not question Officer Cabillo "generally [about] what his understandings are of the regulations and generally what police practice is." But at the same time, the court permitted counsel to establish through Officer Cabillo that he did not interview any witnesses and advised counsel that he could question Officer Cabillo further about any paperwork he completed relative to the case, a matter he had already covered without objection. The court also permitted the same questions to be asked of Officer Marsham-West.

In Greer v. United States, 697 A.2d 1207, 1211 (D.C.1997), we ruled that defense counsel may permissibly adduce evidence that the police conducted an investigation in a manner that departed from standard procedures. But we did not indicate in Greer that such evidence must always be admitted, and declined to rule whether, in the circumstances of that case, the curtailment of cross-examination was an abuse of discretion. Id. at 1212. Defense counsel argued at trial that the officer's "failure to follow certain procedures... goes to his credibility and bias as to whether or not this incident even took place." The court determined that this line of questioning was "too tangential, too remote," and was not probative as to whether appellant actually committed the assault. This evidentiary ruling was within the discretion of the trial judge and will not be overturned. Cf. Price v. United States, 697 A.2d 808, 817 (D.C.1997)

(ruling trial court did not abuse its discretion in rejecting defense effort to establish officer's bias and lack of credibility by showing he had failed to complete two forms required for use of confidential funds).

III.

Appellant's second contention is that the trial court abused its discretion by precluding redirect examination of appellant's only witness, Troy Harris. After counsel for the government completed his cross-examination of Harris, he stated that he had no further questions. The trial judge then said "Thank you. You may step down." Immediately thereafter, defense counsel said "Actually, I have a brief redirect, your honor," at which point the trial judge said "call your next witness. Step down. Call your next witness." Appellant's trial counsel did not attempt to make any proffer concerning the nature of the redirect examination he wished to conduct. Appellant asserts for the first time on appeal that redirect of Harris was necessary in order to rehabilitate his credibility by "clarifying Mr. Harris's reasons for coming to court, his motives for testifying, and the extent to which his desire to help appellant or her sister affected the substance of his testimony."

"[R]edirect examination is limited to matters which were first raised on cross-examination, to which the opposing party is merely responding on redirect." Dobson v. United States, 426 A.2d 361, 365 (D.C.1981) (quoting Singletary v. United States, 383 A.2d 1064, 1073 (D.C.1978)); see Hilton v. United States, 435 A.2d 383, 389 (D.C.1981)

. "The reply on redirect may take the form of explanation, avoidance, or qualification of the new substantive facts or impeachment matters elicited by the cross-examiner." 1 MCCORMICK ON EVIDENCE § 32, at 119-20 (John W. Strong ed., 5th ed.1999) (citations omitted).

In view of the nature and purpose of redirect examination, there is no absolute right to engage in it. It cannot be used to revisit all the matters covered in the preceding cross-examination. This differentiates it from cross-examination, which can be undertaken as a matter of right concerning all the subjects covered in the preceding direct examination, as well as matters affecting credibility.² See Grayton v. United States, 745 A.2d 274, 279-281 (D.C.2000)

; Jones v. United States, 516 A.2d 513, 517 (D.C.1986); 1 MCCORMICK, supra, § 19, at 88, § 32, at 119. On the other hand, there can be said to be a right to redirect provided counsel proposes to deal with matters which first came up in cross-examination. See 1 MCCORMICK, supra, § 32, at 119. Such matters giving rise to a right to redirect cover a broad range, including factual matters not brought up on direct, see Johnson v. United States, 298 A.2d 516, 518 (D.C. 1972), and evidence undermining the credibility of the witness, see Stitely v. United States, 61 A.2d 491, 492 (D.C.1948). See also Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334 (1947) (error to exclude evidence on redirect that would have explained impeachment evidence adduced on cross examination); Villineuve v. Manchester Street Ry., 73 N.H. 250, 60 A. 748, 750 (1905) (when writing inconsistent with direct testimony introduced on cross, error to deny opportunity to explain inconsistencies on redirect); 1 McCORMICK, supra, § 32, at 118-121.

Although the judge in this matter had the discretion to limit the redirect examination of Harris, see Hairston v. United States, 497 A.2d 1097, 1103 (D.C. 1985), it would have been error to exclude all redirect unless counsel was unable to provide any basis for redirect. Therefore, it was incumbent upon counsel, when he wished to proceed with redirect to make, or attempt to make, a proffer of the testimony that was expected, explaining to the judge the basis of his request for redirect examination. Cf. Jones, supra, 516 A.2d at 517-18

(defendant failed to preserve claim of error because proffer insufficient for review by court). "[A]lthough confronting a judge after...