Johns v. United States

• Decision Date: 17 August 1981
• Docket Number: No. 79-310.,79-310.
• Citation: 434 A.2d 463
• Parties: Malissa Q. JOHNS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

434 A.2d 463

Malissa Q. JOHNS, Appellant, v. UNITED STATES, Appellee.

No. 79-310.

District of Columbia Court of Appeals.

Argued November 13, 1980.

Decided August 17, 1981.

Nicholas D. Dale, Washington, D.C., appointed by this court, for appellant.

Robert Bruce Amidon, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., John A. Terry and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, FERREN, and PRYOR, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant, Malissa Q. Johns, who had been indicted for second-degree murder while armed, of the lesser-included offense of voluntary manslaughter while armed. D.C. Code 1973, §§ 22-2405, -3202. Her appeal presents two principal questions.

One is of first impression in this jurisdiction: whether the trial court erred in ruling that if appellant were to take the stand, assert self-defense, and call witnesses to testify about the deceased victim's violent character, the government would be allowed to cross-examine appellant about her own 1971 arrest for assault with a dangerous weapon, even though she had not expressly put her own good character in issue. We hold that when a defendant claims self-defense and puts on evidence of the deceased victim's violent character, the defendant does not thereby open the door to prosecution evidence of her own character for violence. The trial court's ruling in the present case therefore was erroneous.

The second question is whether the trial court abused its discretion in ruling that the defense could not introduce grand jury testimony (from an earlier proceeding against the deceased) by two witnesses who had identified the deceased as a murderer. We conclude that because the grand jury testimony was competent, relevant, and not excludible on evidentiary policy grounds, the trial court abused its discretion in excluding it from the trial.

Accordingly, we reverse and remand for a new trial.

I.

On January 21, 1978, Tyrone E. Simmons died from one five-inch stab wound in the chest. On the same day, appellant went with her father to Sixth District police headquarters and admitted stabbing Simmons. Appellant was immediately arrested, advised of her rights, and strip-searched. Police then took her upstairs to the detective's room where she told them she had stabbed Simmons in self-defense.

The government's case consisted primarily of police-officer testimony that appellant had admitted the stabbing, coupled with testimony by Simmons' companions that he had entered appellant's apartment building, intending to look for his stolen television set in her apartment, and had come out a few minutes later with the fatal wound. The trial court would not permit defense counsel to elicit on cross-examination of the police officers that appellant, after admitting the stabbing, had told them she had acted in self-defense.

The defense presented evidence that the deceased had gone to the apartment where appellant was staying, banged on the door, and said he was "going to kill that bitch." Appellant's father testified that she had told the police, before her arrest, that she had stabbed the deceased after he had attacked her and had threatened her life. Appellant's aunt testified that she had noticed bruises on appellant's face and neck a few hours after the stabbing.¹

In recognition of the defense right to present evidence bearing on the question whether Simmons or appellant was the more likely aggressor, the trial court permitted appellant to introduce some evidence of Simmons' violent acts toward third persons on other occasions — evidence, for example, that Simmons had punched various women. The court, however, would not permit the defense to introduce grand jury testimony by two persons who had identified Simmons in 1973 as the murderer of another individual in a case where homicide charges eventually had been dropped. Because one of these witnesses had recanted part of his story and the other had failed to attend a lineup in which Simmons appeared, the court concluded that their grand jury testimony was insufficiently reliable for admission into the present case. The court ruled, moreover, that if appellant elected to testify herself and also called witnesses to testify about Simmons' other violent acts, the government could introduce evidence of appellant's own violent character. Specifically, the government would be permitted to cross-examine appellant about her 1971 arrest for assaulting a twelve-year-old girl with a bottle. Appellant did not testify.

The trial court denied defense motions for judgment of acquittal at the end of the government's case and at the conclusion of the trial. The jury convicted appellant of voluntary manslaughter while armed. The court sentenced her to prison for three to nine years but suspended execution of sentence and placed her on four years' supervised probation. Appellant noted her appeal.

II.

In order to resolve the question whether appellant's effort to bolster her claim of self-defense through evidence of the deceased victim's violent character should permit the government to present evidence of her own violent character, we must consider (A) the trial court's ruling, (B) the relationship of that ruling to appellant's decision not to testify, and (C) the evidentiary policies pertinent to this perplexing question. We conclude that the trial court erred in ruling that if appellant testified and called other witnesses to the deceased victim's violent character, the government could cross-examine appellant about her arrest for a prior assault. We hold that unless a defendant expressly puts her own good character in issue, her introduction of evidence of the deceased victim's violent character to support her claim of self-defense does not permit the prosecution to offer similar evidence about the defendant. We further conclude that the error in this case was not harmless.

A. Twice before trial, defense counsel told the court that appellant intended to testify. At trial, in her opening statement to the jury, defense counsel implied that her client would testify and claim self-defense.² Later on the first day of trial during a bench conference, the court inquired, "Is there any question about whether she is going to be taking the stand?" Counsel replied, "No, Your Honor."

The next day, defense counsel announced she would call to the stand appellant's brother, Cecil Johns, who had been the government's first witness. Counsel informed the court that she intended to use Mr. Johns as "[a] character witness . . . as to the deceased." At this point, the court brought up the question — raised earlier by the government — whether appellant's presentation of evidence of Simmons' violent character would open the door for the government to introduce similar evidence about appellant.

After a lengthy discussion with counsel, the court ruled that if appellant took the stand in her own defense, testified about Simmons' violent character, but did not call other witnesses to testify about Simmons' earlier acts of violence, the government would not be allowed to cross-examine as to her own prior violent acts; but if appellant testified and also introduced evidence about Simmons' character through other witnesses, the government could "go a certain distance" in putting on evidence of appellant's own violent character.³ Specifically, the court ruled that if the defense "open[ed] up the question of aggressiveness through other witnesses," the government would be allowed to cross-examine appellant about her 1971 arrest for assaulting a twelve-year-old girl.⁴ The court, however, reserved judgment on the government's request to call the complaining witness to the 1971 incident, if necessary, to rebut the testimony of appellant on cross-examination. The court was inclined to the view that such rebuttal evidence would be "precluded by the Lloyd case," which limits testimony in rebuttal of a defense character witness to testimony about general reputation (in contrast with evidence of specific incidents, such as the 1971 arrest). See Lloyd v. United States, D.C.App., 333 A.2d 387, 390 (1975).

In response to an inquiry from the court, the government stated that it had no evidence, other than the 1971 arrest, concerning the defendant's propensity for violence. Accordingly, the court's rulings implicitly conveyed a third message to defense counsel: if appellant chose not to testify, she could introduce testimony by others as to Simmons' violent character without risk that the government could attack her own character through the 1971 arrest or otherwise; for even if third-party testimony about Simmons' violent character properly could serve, as the government contended, to permit rebuttal evidence about appellant's character, the government (in the trial court's view) would be limited to rebuttal with general reputation evidence — evidence which the government acknowledged it did not have.

The trial court, therefore, in effect gave appellant three choices: (1) She could testify as to her own knowledge of Simmons' violent character. If she called no other witnesses on this subject, the government would not be allowed to introduce evidence of her own reputation or prior acts of violence (in this case, the 1971 arrest). (2) She could testify herself and call other witnesses on the subject of Simmons' reputation and prior acts of violence. Election of this option, however, would open the door for the government to cross-examine appellant about her 1971 arrest. (3) She could call other witnesses to testify about Simmons' character but not testify herself. This alternative would preclude the government from introducing evidence of appellant's 1971 arrest.

The course of the trial indicates that appellant elected this third option. Although the defense did not call Cecil Johns (as originally proposed) to testify about Simmons'...