Green v. United States, 16-CM-187

• Decision Date: 13 June 2019
• Docket Number: No. 16-CM-187,16-CM-187
• Citation: 209 A.3d 738
• Parties: Kevin GREEN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

209 A.3d 738

Kevin GREEN, Appellant,
v.
UNITED STATES, Appellee.

No. 16-CM-187

District of Columbia Court of Appeals.

Submitted May 18, 2017
Decided June 13, 2019

Rupa Puttagunta, Chevy Chase, for appellant.

Anne Y. 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 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 assault¹ 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

209 A.3d 740

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.

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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 A.2d 785, 790 (D.C. 2001) ; accord Delaware v. Van Arsdall , 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ; Davis v. Alaska , 415 U.S. 308, 315–16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

The prosecution, which bears the burden of proof, see In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; Conley v. United States , 79 A.3d 270, 278 (D.C. 2013), generally presents its affirmative case through direct examination of its witnesses. 1 MCCORMICK ON EVID. § 32 (7th ed.) (explaining that "an attorney who calls a witness is normally required to elicit on the witness's first direct examination all the testimony that the attorney wishes to prove by the witness," and that this rule "is in the interest of fairness and efficiency"). Defense counsel is then given the opportunity to cross-examine the government's witnesses about "those matters that are raised by the direct examination," Guzman , 769 A.2d at 790, including matters related to a witness's credibility and reliability, id. ; see also In re C.A. , 186 A.3d 118, 122 (D.C. 2018) ; Jones v. United States , 853 A.2d 146, 152 (D.C. 2004). At the conclusion of cross-examination, the government can request an opportunity for redirect examination, which is usually restricted by the scope of cross-examination; this generally concludes the witness's testimony. Singletary v. United States , 383 A.2d 1064, 1073 (D.C. 1978) (explaining there is "generally no constitutional right to recross-examine a witness, since the scope of the redirect examination is limited to matters which were first raised on cross-examination, to which the opposing party is merely responding"); see also Brown v. United States , 763 A.2d 1137, 1140 (D.C. 2000) (explaining the proper scope of redirect examination); 1 MCCORMICK ON EVID. § 32 (7th ed.) ("[T]he consensus is that the party's examination [on redirect] is typically limited to answering any new matter drawn out in the adversary's immediately preceding examination.").

If, however, "material new matters are brought out on redirect examination ... the [C]onfrontation [C]lause of the Sixth Amendment mandates that [the defendant] must be given the right of recross-examination on the new issues." Singletary , 383 A.2d at 1073 ; accord

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Hilton v. United States , 435 A.2d 383, 389 (D.C. 1981). Simply stated, if redirect functions like a new direct examination, then recross-examination is as constitutionally essential as cross-examination.⁷

Here, we must determine, de novo, whether "material new matters" were raised during the government's redirect of Ms. Walker. Singletary, 383 A.2d at 1073 ; Carrington v. District of Columbia , 77 A.3d 999, 1003 (D.C....