Tyree v. Evans

• Decision Date: 22 April 1999
• Docket Number: No. 97-FM-1177.,97-FM-1177.
• Citation: 728 A.2d 101
• Parties: Bernard TYREE, Appellant, v. Juanita EVANS, Appellee.
• Court: D.C. Court of Appeals

728 A.2d 101

Bernard TYREE, Appellant, v. Juanita EVANS, Appellee.

No. 97-FM-1177.

District of Columbia Court of Appeals.

Submitted January 19, 1999.

Decided April 22, 1999.

Lexi Negin Christ, Washington, DC, filed a brief for appellant.

No appearance or brief for appellee.

Before SCHWELB and REID, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge.

In this case of alleged domestic violence involving an unmarried couple, the trial judge issued a one-year civil protection order (CPO) against the defendant, Bernard Tyree, without permitting Tyree's attorney to cross-examine the complainant, Juanita Evans. Observing that unlike Mr. Tyree, Ms. Evans was not represented by counsel, the judge stated that Tyree "has no right to confront or cross-examine her. This is a civil proceeding."¹

On appeal, Tyree contends that this total prohibition against any cross-examination of Ms. Evans was error. We conclude that although the judge was entitled to place reasonable limits on cross-examination, she erred at the trial stage by precluding cross-examination altogether. Accordingly, we reverse.

I. THE TRIAL COURT PROCEEDINGS

On June 5, 1997, Ms. Evans filed a pro se petition and affidavit in which she requested a civil protection order against Mr. Tyree. Ms. Evans also asked that Tyree be required to vacate the apartment that the two of them shared.²

In her pleading, Ms. Evans checked a box indicating that she and Tyree had a "romantic/dating relationship." Ms. Evans alleged that on June 4, 1997, Tyree had punched her in the mouth, causing it to bleed. She also claimed that "[i]n the last five weeks, there has been [a] history of violence towards the petitioner." On the date that Ms. Evans filed her petition, Judge Stephen G. Milliken entered an ex parte fourteen-day temporary protection order pursuant to D.C.Code § 16-1004(d) (1997). A hearing on Ms. Evans' request for a one-year CPO was set for June 19, 1997 before Judge Zoe Bush.

On the scheduled trial date, Ms. Evans appeared pro se, while Mr. Tyree was represented by an attorney. At the beginning of the hearing, after ascertaining the nature of Ms. Evans' allegations, the judge advised Tyree that he could either consent to the entry of a CPO or contest the case. The judge then outlined her ground rules for a contested hearing, and she indicated firmly that Tyree's counsel would not be allowed to cross-examine Ms. Evans. The judge explained to Tyree that "if there's some area of inquiry you want to raise with me ... I may or may not pursue it," but she reiterated that she would conduct the proceeding and that there would be no cross-examination by Tyree's attorney.

In response to brief interrogation by the court, Ms. Evans testified that Tyree struck and abused her. Tyree's attorney stated that "[t]here is a question about Ms. Evans being arrested also before for . . . assaultive conduct against Mr. [Tyree]." Ms. Evans inquired whether she should answer, but the judge directed her not to, because "I'm not asking you that." The judge stated that "[t]he court's focus is on the incident involved with June 4th."

The judge then asked Tyree if he was "willing to answer my questions." Tyree responded that he had nothing to say. The judge found that there was "good cause to believe that a family offense had occurred." and she issued a CPO in which she ordered Tyree not to assault, threaten, harass or physically abuse Ms. Evans. The judge also ordered Tyree to stay away from Ms. Evans and not to contact her in any way. In her order, the judge further directed Tyree to enroll in and complete a counseling program for alcohol abuse and for domestic violence. The duration of the CPO was one year. Tyree noted a timely appeal.

II. LEGAL DISCUSSION

A. The right to cross-examine witnesses.

Cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 1367, at 32 (Chadbourn rev.1974); see also California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (quoting prior edition of WIGMORE); Curry v. United States, 658 A.2d 193, 199 (D.C.1995) (quoting Green and WIGMORE). "[I]t is the principal means by which the believability of a witness and the truth of his [or her] testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

"Where a witness cannot be cross-examined, the search for truth is severely impaired." Curry, supra, 658 A.2d at 199. "Whoever has attended to the examination, the cross-examination, and the re-examination of witnesses, and has observed what a very different shape their story appears to take in each of these stages, will at once see how extremely dangerous it is to act on the `ex parte' statement of any witness and still more of a witness brought forward under the influence of a party interested."5 WIGMORE, supra, § 1367, at 34 (quoting BAYLEY, J. in Berkeley Peerage Case, 4 Comp. 401, 405 (1811)).

"The extent of cross-examination [of a witness] with respect to an appropriate subject of inquiry is within the sound discretion of the trial court." Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931); see also Mitchell v. United States, 408 A.2d 1213, 1214 (D.C.1979) (quoting Alford). "The trial judge always may limit cross-examination to prevent inquiry into matters having little relevance or probative value to the issues raised at trial." Mitchell, supra, 408 A.2d at 1214 (citations and internal quotation marks omitted). A complete denial of the opportunity to cross-examine, however, is impermissible. See Fortune v. Evans, 58 A.2d 919, 920 (D.C. 1948).

The right to cross-examine witnesses called by the opposing party is not confined to any particular kind of proceeding. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (citations omitted); see also Glenbrook Rd. Ass'n v. District of Columbia Bd. of Zoning Adjustment, 605 A.2d 22, 39 (D.C.1992) ("[i]n all adjudicative proceedings, cross-examination and confrontation are the handmaidens of trustworthiness in the face of a factual dispute") (citation and internal quotation marks omitted). The opportunity for cross-examination must be accorded not only to criminal defendants, but also to civil litigants. Fortune, supra, 58 A.2d at 921; see also The Ottawa, 70 U.S. (3 Wall.) 268, 271, 18 L.Ed. 165 (1865)) (suit in admiralty); Ziegler v. Ziegler, 304 A.2d 13, 14 (D.C.1973) (per curiam) (divorce and child custody).

B. Proceedings in which there is no right to cross-examination.

There are, of course, contested proceedings in which it is impracticable to present live testimony, and in which cross-examination is therefore unavailable. In Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), for example, the Supreme Court held that the existence of probable cause for the purpose of setting a criminal defendant's conditions of release "can be determined reliably without an adversarial hearing." A court may likewise grant interim relief in a civil case, without hearing live testimony or providing an opportunity for cross-examination, so long as the resulting order is of limited duration. See, e.g., Super. Ct. Civ. R. 65(b) (temporary restraining order effective for ten days may be issued on the basis of affidavits). In fact, when the present litigation began, Judge Milliken issued a temporary protection order ex parte, apparently without hearing live witnesses, see D.C.Code § 16-1004(d), and Tyree sensibly makes no claim that he was entitled to cross-examine Ms. Evans before the temporary order could be entered.

The trial-type proceeding at which the judge prohibited cross-examination in this case, however, is quite unlike a request for pendente lite relief in cases such as Gerstein,³ at which no witnesses appear and no disposition is made of the merits of the case. On the contrary, a petition for a CPO is, in substance, a suit for a one-year injunction; the injunction may subsequently be extended. See Cruz-Foster v. Foster, 597 A.2d 927, 930-31 (D.C.1991). The hearing in this case at which cross-examination was prohibited therefore constituted the trial on the merits of a civil case in which equitable relief was sought.

Moreover, the stakes for Mr. Tyree were high. To be sure, the provision in the CPO ordering Tyree not to assault or threaten Ms. Evans did no more than command him to obey the law, but it was enforceable through the contempt power. A violation of the order would therefore subject Tyree to possible imprisonment, as well as to a fine. In addition, other provisions of the CPO in this case significantly limited Tyree's freedom of action. Tyree was forbidden to communicate with Ms. Evans in any way, and this proscription was likewise enforceable by contempt. Tyree was also required to attend counseling programs, without being given any choice as to whether he wished to enroll. Moreover, the CPO statute authorizes the court to require a respondent to vacate premises jointly leased by him and the complainant, see D.C.Code § 16-1005(c)(4), and, as we have noted, Ms. Evans initially sought such relief in her petition, but dropped the request after she moved out of the unit.⁴

An evidentiary hearing or trial in which a defendant is subject to injunctive relief for a year, and may be ordered out of his dwelling, falls well within the general rule that where questions of fact are disputed, a litigant has the right to cross-examine adverse witnesses. By the same token, such a hearing is outside the scope of the exception for pendente lite proceedings at which live witnesses do not appear and in which there is no occasion for cross-examination.

C. Ms. Evans' pro se status.

The judge's decision not to permit...