Scull v. U.S., 86-1477.

Decision Date29 September 1989
Docket NumberNo. 86-1477.,86-1477.
PartiesAlberto Crespo SCULL, Appellant, v. UNITED STATES of America, Appellee.
CourtD.C. Court of Appeals

Bruce Clarke, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Steven W. Pelak, Asst. U.S. Atty., for appellee. Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty., at the time the brief was filed, and Sharon M. Collins and G. Paul Howes, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge and MACK and TERRY, Associate Judges.

MACK, Associate Judge:

Appellant Alberto Crespo Scull was allegedly one of two protagonists in a shootout. At his first trial, a jury found him guilty of jumping bail, but was unable to return a verdict on several other counts. At a second trial, a jury found him guilty of two counts of assault with a dangerous weapon and of carrying a pistol without a license, but acquitted him of two counts of assault with intent to kill while armed. On this appeal, Scull urges that by denying his request to cross-examine witnesses as to their motive for testifying, the trial court abridged his Sixth Amendment right to confront witnesses against him. He also maintains that the trial court erroneously admitted "other crimes" evidence that he unlawfully carried a firearm for a month prior to the shootout, and that it erred in permitting two police officers to volunteer testimony effectively contrasting his alleged bad character with the good character of two key government witnesses. Because we find that it was indeed error to deny appellant's request to cross-examine adverse witnesses as to their motive for testifying, we reverse the judgment of the trial court and remand for a new trial.1

According to the government's evidence, in the early afternoon of March 2, 1983, several young men, including appellant Scull and one Edward Harris, were playing "craps" on the south sidewalk of the 1400 block of Park Road, Northwest. Scull, then thirty-two years old, was described as a six-foot-tall Cuban male with a long, thin face, smooth skin, and short hair. At about 4:30 p.m., after two or three hours of play, Scull and Harris had an altercation. Scull struck Harris, knocking him down. Harris left the scene, but Scull, remaining behind, was overheard angrily describing the encounter to two friends, "Lazador" and "Julio."

Two hours later, Scull and his friend Lazador were seen standing in front of 1448 Park Road, conversing with Julio, who was on the opposite side of the street. At the time, the street was busy with pedestrians. Suddenly, a car stopped a short distance away at the corner of Park Road and Hiatt Place, and Harris and another young man sprang out. When Harris demanded that Scull return some money, a second altercation erupted. Standing in the middle of the road, Scull produced a gun and fired it at Harris. Pedestrians ran for cover as Harris returned Scull's fire from behind several parked cars. A nine-year-old girl, Jenetta Alredge, was caught in the cross-fire and wounded in her right leg. Scull pursued Harris, and fired after him, as he escaped down Hiatt Place. Scull and Harris had exchanged between five and ten gunshots in the encounter.

II

Three of the seven witnesses who testified at trial2 knew Scull prior to the gunfight. One of them, Edward Harris, had already confessed that he participated in the shootout, but testified that Scull was uninvolved in it. Two others, Nicola ("Nikki") Wilcox and Okima ("Toni") McCombs, teenagers living in an abandoned building near the scene of the gunfight, made positive identifications of Scull. Nonetheless, defense counsel proffered that Wilcox and McCombs had testified only in hopes of avoiding prosecution on drug distribution charges. A Metropolitan Police detective, David S. Brown, had interviewed Wilcox and McCombs approximately ten times in the fourteen months that elapsed between the shootout and the Scull trial, but at each interview they insisted that they had seen nothing. Then, at an allegedly chance encounter at the District of Columbia Courthouse six days before appellant's then-scheduled trial, they admitted to Detective Brown that they had observed the shootout, and that Scull and Edward Harris were the gunmen.

Of the remaining four witnesses, all of whom were unacquainted with Scull before the shootout, three described a gunman with shoulder-length hair, and one of these observed that he had acne-marked skin. At the time, however, Scull had short hair and smooth skin. Nevertheless, one of the three witnesses was able to pick Scull out of a photo array, at a lineup, and by in-court identification. The fourth witness, unable to identify Scull in a line-up, admitted in court that she was not wearing her eyeglasses when she observed the gunman. Thus the government's identification of Scull depended substantially on the testimony of Wilcox and McCombs.

Scull's counsel moved in limine for permission to cross-examine Wilcox and McCombs about their motive for testifying, hoping to elicit evidence that they were doing so to avoid prosecution for their own illegal conduct. According to Scull's proffer supporting this motion, Edward Harris had assaulted Wilcox and McCombs with a baseball bat on June 22, 1983, three months after the shootout. In investigating this assault, Detective Brown learned from Wilcox and McCombs that they regularly sold marijuana for Harris, and that he had beaten them when they short-changed him on the proceeds from one of their sales. At Scull's trial, Wilcox and McCombs explained that they had repeatedly lied to Detective Brown in telling him that they knew nothing of the shootout for fear of retaliation by Harris, and had only agreed to testify against Scull upon learning that Harris was locked up in connection with his assault on them. Defense counsel sought to undermine this explanation for their change of heart by pointing out they had reported the assault themselves, had been informed of Harris' incarceration as early as September 1983, and were prepared at that time to testify against him. Rather, defense counsel suggested, Wilcox and McCombs testified against Scull to mollify prosecutorial authorities, or perhaps to comply with the terms of a "deal," and thereby escape prosecution.

The trial court denied Scull's motion. It did, however, allow other cross-examination relevant to the issue of bias to proceed unimpeded.3

III

The guaranteed opportunity to cross-examine adverse witnesses is an inherent component of the defendant's Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); Jones v. United States, 516 A.2d 513, 517 (D.C. 1986). Nevertheless, that right is subject to reasonable limits imposed at the discretion of the trial judge. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); Springer v. United States, 388 A.2d 846, 854 (D.C. 1978). Such limits may be imposed to prevent harassment, prejudice, confusion of the issues, or repetitive, cumulative, or only marginally relevant questioning, Van Arsdall, supra, 475 U.S. at 679, 106 S.Ct. at 1435; Beard v. United States, 535 A.2d 1373, 1379 (D.C. 1988); Washington v. United States, 499 A.2d 95, 100-01 (D.C. 1985), to avert danger to or the humiliation of a witness, Springer, supra, 388 A.2d at 854, or "[t]o guard against the danger that counsel will ask `highly prejudicial questions of witnesses with the almost certain knowledge that the insinuations are false.'" Jones, supra, 516 A.2d at 520 (Burgess, J., sitting by designation, dissenting), quoting United States v. Pugh, 141 U.S.App.D.C. 68, 71, 436 F.2d 222, 225 (1970).

Hence, we are loath to allow cross-examination without the establishment of a proper foundation, and

to survive objection, the questioner must proffer "some facts which support a genuine belief" that the witness is biased in the manner asserted. United States v. Fowler, 151 U.S. App.D.C. 79, 81, 465 F.2d 664, 666 (1972); see also Hazel v. United States, 319 A.2d 136, 140 (D.C. 1974) (attorney may not ask questions of witness that are "totally groundless"). In addition, the attorney must proffer facts sufficient to permit the trial judge to evaluate whether the proposed question is probative of bias. See Best v. United States, 328 A.2d 378, 381-82 (D.C. 1974); see also Hawkins v. United States, 461 A.2d 1025, 1034 (D.C. 1983), cert. denied, 464 U.S. 1052 [104 S.Ct. 734, 79 L.Ed.2d 193] [(1984)]; Flecher v. United States, 358 A.2d [322,] 324 (D.C.), cert. denied, 429 U.S. 977 [97 S.Ct. 486, 50 L.Ed.2d 585] [(1976)].

Jones supra, 516 A.2d at 517. Further, where counsel has information from her own client, which she does not know to be false and which is not "inherently incredible," she has a sufficient good-faith basis for the proposed cross-examination. Hazel, supra, 319 A.2d at 139. In the absence of such a factual foundation, the questioner must articulate a "well reasoned suspicion"4 rather than "an improbable flight of fancy" to support the proposed cross-examination. Pugh, supra, 141 U.S.App.D.C. at 71, 436 F.2d at 225; see also Jones, supra, 516 A.2d at 520 (Burgess, J., dissenting); Collins v. United States, 491 A.2d 480, 487 D. C. 1985).

In denying appellant's motion to cross-examine Wilcox and McCombs about their possible motivation to testify, the trial court observed that the witnesses' report of their beating by Harris and their testimony that they had sold marijuana did not establish a danger of prosecution. Further, the trial court held, the adducement of evidence concerning the reasons for the beating would be collateral to the issues at bar and would tend to obfuscate the issues at trial; and the admission of the proposed cross-examination...

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