Davis v. U.S., 85-121.

• Decision Date: 05 September 1989
• Docket Number: No. 85-121.,85-121.
• Citation: 564 A.2d 31
• Parties: Milton Lee DAVIS, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

564 A.2d 31

Milton Lee DAVIS, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-121.

District of Columbia Court of Appeals.

Argued En Banc February 19, 1987.

Decided September 5, 1989.

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Steven H. Goldblatt, Georgetown University Law Center, appointed by this court, with whom Lesley Anne Fair and Martha J. Tomich, Appellate Law Fellows, and Mark Antonvich, Student Counsel, Washington, D.C., were on the brief, for appellant.

Daniel S. Seikaly, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty., at the time the brief was filed, were on the brief, for appellee.

Elizabeth G. Taylor, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief and argued amicus curiae, on behalf of appellant.

Before ROGERS,^* Chief Judge, MACK, NEWMAN, FERREN, and BELSON, Associate Judges, PRYOR,^** Senior Judge, and NEBEKER,^*** Associate Judge, Retired.

NEWMAN, Associate Judge:

Milton Davis was convicted of carrying a pistol without a license, D.C.Code § 22-3204 (1981). He appealed, contending that the trial court had violated his fifth and sixth amendment rights to due process and to present witnesses by permitting a defense witness to refuse to testify on the basis of a claimed fifth amendment privilege against self-incrimination. A division of this court agreed with Davis that the trial court had committed constitutional error by failing to conduct the inquiry required to sustain a claim of the privilege. Davis v. United States, 482 A.2d 783 (D.C. 1984). Because the nature of the trial court's error rendered the record inadequate for the appellate panel to determine whether that error was harmless under the standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the panel remanded for further proceedings and directed the trial court to determine, on the basis of the supplemented record, whether the error was harmless beyond a reasonable doubt. The trial court subsequently concluded that the error was harmless.

We review Davis' conviction for a third time, this time en banc, to reconsider what role the trial court's assessment of the harmlessness of its own constitutional error should play in our resolution of that question.¹ Stated another way, we must decide what standard of review we should apply in those unusual cases where the trial court has had an opportunity to consider, in the first instance, whether an error of constitutional magnitude may be excused as harmless under the Chapman test.

After considering the briefs and arguments of counsel, we are not satisfied that either the "clearly erroneous" standard, ordinarily applied to review a trial court's factual findings, or the "de novo" standard, typically associated with the review of a question of law, adequately serves the interests — either analytical or functional — which underlie a determination of harmlessness. We reject the "clearly erroneous" standard because we believe, as a matter of analysis, that the appellate court must have a meaningful last word as to whether or not to sustain a conviction that follows a trial marred by constitutional error. At the same time, we reject a pure "de novo" standard because we believe that the trial court sometimes in its ruling may make findings of historical or subsidiary facts (as well as reasonable inferences deduced therefrom) to which we should give deference. Accordingly, we choose an intermediate standard, a standard that we are persuaded is more finely calibrated to address the concerns presented by this case. In light of the standard we choose, we conclude that there is no longer any reason to elicit from the trial judge, as we did in this case, an opinion on the ultimate issue of harmlessness. That court's proper function will have been served when it makes the necessary evidentiary record and returns the matter to us.

In Part I we derive and define our intermediate standard, applying general principles governing standards of review to the unique characteristics of an assessment of harmlessness. In Part II, we consider the evidence presented at Davis' trial and at the proceedings on remand to determine whether the constitutional error committed by the trial court in this case was harmless beyond a reasonable doubt. Employing the standard of review developed in Part I, we conclude that the constitutional error was indeed harmless. Accordingly, we affirm Davis' conviction for carrying a pistol without a license.

I.

We are presented in this case with the novel problem of deciding what standard of review to apply to a trial court's determination that its own constitutional error is harmless beyond a reasonable doubt. The question is one that arises infrequently; ordinarily, the determination of harmlessness rests with the appellate court in the first instance. Occasionally, however, the nature of the error and the inadequacy of the record on appeal prevent us, in the same appeal in which we make the decision that an error has occurred, from addressing the possible harmlessness of that error under Chapman, supra, 386 U.S. at 18, 87 S.Ct. at 824. When, for example, as in this case, the constitutional error resulted in the erroneous exclusion of evidence at trial, and that evidence is not available to us by proffer or otherwise, we must remand to the trial court to supplement the record. The standard of review question arises because, in remanding this case, we also directed the trial court to evaluate the error for harmlessness in light of the supplemented record.

In formulating an appropriate standard of review, we seek a solution that will mediate between two competing concerns inherent in the problem posed by our remand order. On the one hand, we wish to avail ourselves of the unique operational advantage of the trial judge in making a determination requiring intimate acquaintance with the facts of the particular case as they evolved at trial. On the other hand, we seek to maintain our own role as primary expositor of law by applying a sufficiently penetrating measure of review to a trial court decision that, in effect, construes a legal right by denying its remedy.

A.

A division of this court recently grappled with the problem of determining the appropriate standard of review of a trial court's ruling that the doctrine of collateral estoppel prevented the government from relitigating certain facts at a second trial. United States v. Felder, 548 A.2d 57 (1988) (adopting "de novo" review). The panel set out at length the theoretical and practical underpinnings of standards of review. Specifically, the court found that both "functional" and "analytical" concerns should command a reviewing court's attention when it is required to determine the appropriate standard of review. We adopt that approach for the purpose of deciding our review powers here.

The most readily-made observation about standards of review is that they generally appear to be dictated by whether the court characterizes the matter under review as a question of law, a question of fact, or a mixed question of law and fact. Courts routinely engage in this classification process despite the well-recognized truth that the issue under review frequently defies rote categorization and that procrusteanlike efforts often must be expended in order to fit the question into one of the fact, law or mixed fact and law categories.² Once the question is cast as fact, law or mixed fact and law, the court need only apply the designated standard of review for that category of question.

Hence, where the matter under review requires invocation or declaration of a fact-free general principle of law, the court will designate the issue as a question of law, and review the matter "de novo." "De novo" review, otherwise referred to as "independent" or "plenary" review, empowers the appellate court, based on an original appraisal of the record, to reach a different result from the trial court without deference to that court's findings. 1 S. CHILDRESS & M. DAVIS, STANDARDS OF REVIEW: FEDERAL CASES AND REVIEW PROCESS § 2.14, at 76 (1986) (hereinafter STANDARDS OF REVIEW); see Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 514 n. 31, 104 S.Ct. 1949, 1967 n. 31, 80 L.Ed.2d 502 (1984).

An issue is designated a question of fact if it involves the who, what, where, when and how details of the case; the case specific "historical," "basic," "primary," "discrete," "subsidiary" or "operative" facts. See generally 2 S. CHILDRESS & M. DAVIS, STANDARDS OF REVIEW, supra, § 2.21, at 100-07. When the trial court sits as the factfinder, its factual findings are accorded considerable deference and are reviewed under a "clearly erroneous" standard. D.C.Code § 17-305(a) (1981); Super.Ct. Civ.R. 52(a) (1987); see, e.g., Auxier v. Kraisel, 466 A.2d 416, 418 (D.C. 1983); Hummel v. Koehler, 458 A.2d 1187, 1191 (D.C. 1983). The "clearly erroneous" standard precludes the appellate court from setting aside a trial court's finding of fact unless the "judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (1981). Thus, where the facts admit of more than one interpretation, the appellate court must defer to the trial court's judgment. Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); see Lee Washington, Inc. v. Washington Motor Truck Transportation Employees Health & Welfare Trust, 310 A.2d 604, 606 (D.C. 1973).

A "mixed question" of law and fact exists where "the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard . . . [or] whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982); Cuyler v. Sullivan, 446...