Tabron v. United States, 80-952.

• Decision Date: 06 April 1982
• Docket Number: No. 80-952.,80-952.
• Citation: 444 A.2d 942
• Parties: Quinton L. TABRON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 942

444 A.2d 942

Quinton L. TABRON, Appellant, v. UNITED STATES, Appellee.

No. 80-952.

District of Columbia Court of Appeals.

Argued November 10, 1981.

Decided April 6, 1982.

Francis D. Carter, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., at the time the brief was filed, was on the brief, for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, and John A. Terry, Michael W. Farrell, and Richard C. Otto, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

FERREN, Associate Judge:

This case comes before us a second time. In Tabron v. United States, D.C.App., 410 A.2d 209 (1979), in which a jury convicted appellant of first-degree murder while armed and related offenses, we remanded the case for further proceedings because the trial court had denied a defense request "to order the government to produce at trial for impeachment purposes the prior convictions and juvenile adjudications of its witnesses." Id. at 211. We left it to the trial court to determine whether government witnesses had prior convictions or adjudications and, if so, whether the government's failure to disclose them deprived appellant of a fair trial by compromising the opportunity to cross-examine as to bias and general credibility. Upon remand, the government disclosed to the court that five of its six eyewitnesses had prior juvenile adjudications. After reviewing these records in camera, the trial court issued a comprehensive memorandum and ruled that the government's failure to disclose these records (lid not entitle appellant to a new trial.

We sustain the trial court's ruling. First, as to bias, we conclude beyond a reasonable doubt that cross-examination about prior juvenile adjudications would not have weakened the impact of testimony by government witnesses who had a relationship with the court (e.g., probation) during the period of investigation, prosecution, and trial of this case. See Springer v. United States, D.C.App., 388 A.2d 846, 856 (1978). Second, as to general credibility, we sustain the trial court's conclusion that cross-examination about prior adjudications of government witnesses who did not have a relationship with the court during the period at issue would not have affected the outcome of the trial. See Lewis v. United States, D.C.App., 393 A.2d 109 (1978), aff'd on rehearing, D.C.App., 408 A.2d 303, 312 (1979). Accordingly, we affirm appellant's convictions for first-degree murder while armed, D.C.Code 1973, §§ 22-2401, -3202, possession of a prohibited weapon (a rifle) with intent to use it unlawfully against another, D.C.Code 1973, § 22-3214(b), and two counts of possession of a prohibited weapon (a sawed-off shotgun), D.C.Code 1973, § 22-3214(a).

I.

The facts are summarized in Tabron, supra at 211. The government based its case, to a substantial extent, on the testimony of six eyewitnesses to a shooting that emanated from a group of boys on a hill behind a People's Drug store, allegedly to avenge a robbery. In preliminary proceedings before the trial court, appellant asked the prosecutor for the "impeachable convictions" and "juvenile involvements" of these witnesses for use in impeaching their testimony. The prosecutor replied that he knew only of juvenile involvements, and that the government had no obligation to produce these records. The trial court agreed and declined to order production either before trial or at trial, when defense counsel renewed his request. Id.

In review of this ruling we noted that the Sixth Amendment requires the government, upon timely pretrial request, to lodge with the trial court records of all accessible delinquency adjudications that might be used to establish bias, leaving it for the trial court to decide whether an adjudication goes to bias and thus must be disclosed to the defense. Id. at 212; see Lewis, supra, 408 A.2d at 312; Smith v. United States, D.C. App., 392 A.2d 990 (1978).¹ We also pointed out that due process requires, upon request, similar production of juvenile adjudications affecting general credibility if they "are likely to be material to the outcome" of the trial. Tabron, supra at 212; see Lewis, supra, 408 A.2d at 312. We then held that the "trial court erred in assuming that the records of the juvenile adjudications need not be disclosed," Tabron, supra at 212, and instructed the trial court to assess the effect of the witnesses' criminal convictions and/or juvenile adjudications, if any, "in accordance with the guidelines of Lewis, supra." Tabron, supra at 212.

II.

We consider, first, those government witnesses susceptible to impeachment for bias. Preliminarily, we note that this category is not limited to witnesses who had a relationship with the court at the time of trial. Witnesses impeachable for bias include all those who had a relationship with the court, such as probation, at the time the government was in touch with them during investigation, prosecution, and trial of the crime. All five witnesses fit within this category.²

In order to assess the impact of limiting cross-examination for bias, the court first must assess the extent of the curtailment. In Springer, supra at 856, we distinguished between the effects of total curtailment and a limitation imposed after some cross-examination. We held that in the former situation, curtailment will constitute per se reversible error because the jury will have had no opportunity to evaluate possible bias. In the latter situation, however, this court will review for harmless error under the constitutional standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (harmless beyond a reasonable doubt).

Appellant argues for per se reversible error here. We disagree. The trial court found, and the record reflects, that defense counsel cross-examined these five witnesses extensively about their active involvement in the crime for which appellant was on trial. This cross-examination effectively highlighted their motive to curry favor with the government, in order to avoid prosecution for the same crime. Accordingly, the Chapman harmless error test applies. See Springer, supra at 856.

We have said that, to justify a harmless error ruling, "it must be clear beyond a reasonable doubt (1) that the defendant would have been convicted without the witness' testimony, or (2) that the restricted line of inquiry would not have weakened the impact of the witness' testimony" Id. (citation omitted). The first element of this test is applied when it is not possible to determine what facts defense counsel would have elicited upon further cross-examination. The second element is applied in cases, such as this one, when the excluded testimony is available for court review.

Normally, on review of the trial court's determination after remand, we would base our ruling on whether the trial court was clearly erroneous. Appellant argues, however, that the trial court failed to apply the proper test because it determined whether cross-examination as to bias "would have changed the outcome of the trial," not whether it would have "weaken[ed] the impact of the witness[es]' testimony." We agree that it is not clear whether the trial court used the proper test, particularly as to the witnesses who were not on probation at the time of trial but were on probation earlier, during key stages of investigation and prosecution. We conclude, however, that the court's factual findings are sufficiently explicit for this court to resolve the appeal. We conclude, beyond a reasonable doubt, that additional cross-examination about probation and other connections with the court, in an effort to show bias, would not have weakened the impact of the five witnesses' testimony.

More specifically, defense counsel ably highlighted the witnesses' motivation to point a finger at appellant in order to curry favor with the government and thus save their own skins. Witness number 1, who — unknown to the jury — was on probation for receiving stolen property at the time of trial, see note 2 supra, admitted on cross-examination that he possessed marijuana on the date of the shooting, that he carried the sawed-off shotgun present at the scene of the crime and later found under appellant's bed, and that he was standing beside appellant at the time of the shooting. The witness also admitted that he was not charged with any crime growing out of the incident. The trial court found, and we agree, that if all this evidence was not enough for the jury to infer bias based on the witness' desire to protect himself against prosecution for involvement with the crime, it is "highly unlikely that they would have inferred [bias] for the additional reason that the witness was looking over his shoulder at his...