BURGESS v. U.S.

• Decision Date: 05 May 1992
• Docket Number: No. 90-CF-406,90-CF-406
• Citation: 608 A.2d 733
• Parties: Tony A. BURGESS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

608 A.2d 733

Tony A. BURGESS, Appellant, v. UNITED STATES, Appellee.

No. 90-CF-406.

District of Columbia Court of Appeals.

Argued September 19, 1991.

Decided May 5, 1992.

Appeal from the Superior Court, District of Columbia, Ricardo M. Urbina, J.

Frederick J. Sullivan, appointed by this court, for appellant.

J. Patrick Rowan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese, III, and June M. Jeffries, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and SCHWELB and WAGNER, Associate Judges.

PER CURIAM:

Appellant Tony A. Burgess appeals his convictions¹ by a jury on the principal grounds that the trial judge abused his discretion by (1) limiting bias cross-examination of a government witness, and (2) admitting testimony that the decedent called his assailant "Tony." We find no abuse of discretion by the trial judge in limiting cross-examination; the proffered testimony was unduly prejudicial while of limited relevance to bias. We also find no abuse of discretion in the admission of the decedent's statement. Accordingly, we affirm.

I

The government's case was presented principally through the testimony of two witnesses, Odily Campos and Carl Johnson. According to Ms. Campos, on the evening of January 14, 1988, she was at the Dome, a nightclub near Dupont Circle, where she saw Tell Rodolfo Maninant, a friend from high school whom she had not seen for two years. They left the nightclub and went with some friends to the Meeting Place, a restaurant on K Street. Campos had brought her car to the restaurant, and after the group had finished eating, Maninant asked Campos for a ride to a friend's house. Campos agreed, and they left the restaurant at approximately 4:30 a.m. Maninant sat in the front passenger seat giving directions to Campos.

After a short drive, Maninant and Campos arrived at a horseshoe-shaped structure of townhouses in the Sursum Corda area in Northwest Washington. Maninant directed Campos to drive around the townhouses and to stop near First Terrace and L Place. After the car stopped, two men approached the passenger side of the car, and began talking to Maninant. Campos heard Maninant call one of the men "Tony," and the other man "Leroy." Maninant asked for cocaine, and Tony asked Maninant for $200. Maninant got out of the car, and Tony asked Maninant if he had the thousand dollars that he owed him. Maninant replied that he had the money, whereupon Tony searched him but did not find any money. Maninant said that Campos, who he claimed was his sister, had the money. Maninant came back to the car and told Campos to tell Tony that she was his sister and had the money.

Tony became upset, told Maninant that he had "fucked up," and drew a gun. Maninant told Tony to "go ahead, shoot me." Tony responded that "I don't want to kill you, but you fucked up." Tony then came around to the driver's side of the car, and told Campos to open the door, which shedid.² He pointed a gun at her head and asked her whether she had the thousand dollars. Campos responded that she was not Maninant's sister and she did not have the money. Tony slammed the door and went back to Maninant, asking once again if he had the money. Maninant said that he did, but he needed to get change.

Maninant started walking away from the car, and Tony followed him. Campos then heard two gunshots. Tony and Leroy then ran towards her car. As she was trying to flee, Campos opened the passenger door to let Maninant in the car, but Maninant told her to get out of the area and fell. Maninant was later taken to Washington Hospital Center where he was pronounced dead at 7:20 a.m.

Carl Johnson, who lived at 1151 First Terrace, Northwest, behind First Terrace and L Place, testified that he awoke at 4:30 a.m. on January 15, 1988. At that time his son Derrick had come into the house. Later that morning his wife told him that there had been some kind of car accident outside. Carl Johnson went to the door and saw two men running, one pursuing the other. He recognized one of the men as appellant, and at trial, identified him in the courtroom. As both men ran, Carl Johnson saw appellant catch up to the other man, pull out a gun and shoot him twice in the head.³ According to Carl Johnson, these events occurred between 6:00 and 6:15 a.m., when his son Derrick was asleep.

Derrick Johnson testified for the defense. He claimed that he had been with appellant on January 15, 1988, for approximately two hours, until fifteen minutes before the shooting. At approximately 5:00 a.m. he had driven his car into a parking lot off First Terrace in Sursum Corda where he met appellant. Derrick saw Maninant in the parking lot in a car with a female, engaged in an apparent drug transaction. Derrick knew Maninant and was afraid of him because two months earlier Maninant had urinated on Derrick's front porch and pointed a gun at him.⁴ According to Derrick, appellant went over to Maninant, then came back and asked Derrick if he could take him for something to eat. Derrick then drove to the Greyhound bus station on First Street, Northeast, where appellant had something to eat and Derrick played some video games. After about half an hour, they returned to Sursum Corda. Derrick dropped appellant off, parked his car in front of his house, had something to eat in his home and then went to bed. Approximately fifteen minutes later he heard gunshots.

Appellant also testified, as had Derrick, and contradicted Campos' version of events. He claimed that upon returning to Sursum Corda, he saw Maninant sitting in a car with a woman and another man. He heard Maninant call out "Tony," and he heard gun shots. When he saw Maninant moving toward him, he ran too. As he did, he saw Mrs. Johnson standing in the doorway of her house. He denied that he had shot Maninant.

II

Appellant's first contention, that the trial judge impermissibly curtailed his bias cross-examination of Carl Johnson, does not require extended discussion. Appellantcontends that the trial judge erred in restricting cross-examination of Carl Johnson regarding his knowledge of an altercation between Maninant and his son, Derrick, and the fact that Maninant had put a "contract" on his son's life. Appellant maintains that this testimony would be probative of bias since it would reveal that Carl Johnson had good reason to suspect that his son would be implicated in the murder, and, therefore, he identified appellant in order to shift suspicion away from his son.

Consistent with a defendant's Sixth Amendment rights, bias is always a proper subject for cross-examination. See Porter v. United States, 561 A.2d 994, 996 (D.C.App. 1989). Nonetheless,

the right to explore [bias] is not without its limits. The party posing the question must proffer to the court some facts which support a genuine belief that the witness is biased in the manner asserted, that there is a specific personal bias on the part of the witness, and that the proposed questions are probative of bias.

Id.

Defense counsel proffered that questions probing Carl Johnson's knowledge of the hostility between Maninant and his son would show that Carl Johnson identified appellant as the suspect in order to exculpate his son. Appellant's counsel did not proffer, however, that Carl Johnson knew at the time he gave his report of the murder to the police, see note 3, supra, that there had been an altercation between Maninant and his son. Nor did defense counsel indicate that Carl Johnson believed or had reason to believe that his son was going to be implicated in the murder. Carl Johnson testified that his son had gone to his room prior to the gunshots. There was no testimony that Derrick was at any time the focus of a police investigation or that Carl Johnson had reason to think at the time of trial that he was. See Best v. United States, 328 A.2d 378, 381 (D.C.App. 1974) (the time of trial testimony rather than the time of the offense is the time at which bias is to be examined). Nor was there anticipated testimony to link Derrick to the murder.⁵ Hence, the foundation for appellant's bias theory was flawed because the proffer failed to suggest a motive for Carl Johnson to lie.⁶

Even assuming that the proffered testimony was relevant to bias, the trial judge did not abuse his discretion in refusing to permit cross-examination on this issue since the testimony would have been highly prejudicial. The evidence that Maninant had previously pulled a gun on Derrick and allegedly had put out a contract on Derrick's life "would have tended to 'invite a disposition based upon [a] good guy/bad guy comparison.'" Hawkins v. United States, 461 A.2d 1025, 1033 n. 13 (D.C.App. 1983), cert. denied, 464 U.S. 1052, 104 S.Ct. 734, 79 L.Ed.2d 193 (1984). The jury might have used this evidence, as well as the evidence of the prior incident, to infer that Maninant was a bad man who deserved what he got, rather than addressing the merits of the evidence offered by the government to prove his guilt. Hence, the trial judge could properly conclude that the evidence would be more prejudicial than probative.

Furthermore, the jury eventually heard about the prior incident between Derrick and Maninant, see note 4, supra, and hence appellant suffered no prejudice from thejudge's rulings about the altercation. There is nothing in the record to suggest that defense counsel would not have been permitted to argue the facts of the incident to the jury and ask the jury to draw reasonable inferences.

III

Appellant also contends that the trial judge erred in admitting the testimony of Campos that she heard Maninant call the man who shot him "Tony." As noted in the two concurring opinions, we disagree.⁷ Accordingly, we affirm the judgments of conviction.

ROGERS, Chief Judge, concurring:

In pretrial proceedings, the defense counsel objected on hearsay grounds to the prosecutor's request for permission to bring out during...