CHARLES M. COATES v. UNITED STATES

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-CF-2047

CHARLES M. COATES, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF1-7379-11)

(Hon. William M. Jackson, Trial Judge)

(Argued: December 10, 2014 Decided: April 23, 2015)

Daniel Gonen, Public Defender Service, with whom James Klein, Samia

Fam, and Sonam Henderson, Public Defender Service, were on the briefs, for

appellant.

John Cummings, Assistant United States Attorney, with whom Ronald C.

Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth

Trosman and Michael Liebman, Assistant United States Attorneys, were on the

brief, for appellee.

Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.

GLICKMAN, Associate Judge: On trial for murder, appellant Charles Coates

admitted having shot and killed his cousin and close friend Eddie Leonard, but

claimed he did so unintentionally and in self-defense when Leonard, freaking out

2

on PCP, threatened him with a gun. The key witness against appellant—the

government’s only witness capable of disputing his account of the shooting—was a

jailhouse informant, who testified that appellant confessed to killing Leonard, not

in self-defense, but in a fight over the proceeds of a robbery they committed.

Appellant denied having confessed to this, but the jury, evidently crediting the

informant’s testimony, found him guilty of second-degree murder while armed,

possession of a firearm during a crime of violence, and other related firearm

offenses.

In a trial that pitted appellant’s credibility against that of the informant,

appellant claims the trial court made two erroneous evidentiary rulings that

unfairly skewed the contest against him. First, appellant argues that the court

violated his Sixth Amendment right of confrontation by precluding him from

impeaching the informant with evidence of his bias—specifically, evidence

implying the informant had corruptly fabricated a murder confession by an

innocent man in another case in order to curry favor with the government. Second,

appellant contends the court also erred in allowing the prosecutor to impeach his

(appellant’s) veracity by introducing extrinsic evidence of his prior uncharged

misconduct—specifically, his statement to police that he had committed what he

called “trick” robberies factually unrelated to the charges in this case.

3

We agree with appellant that each of these rulings was erroneous, and that

the ruling limiting his ability to establish the informant’s corruption bias cannot be

deemed harmless. We therefore vacate appellant’s convictions and remand for a

new trial.1

I.

The evidence at trial established that the decedent, Eddie Leonard, left his

father’s house in Southeast Washington, D.C., around 11:30 p.m. on the night of

February 20, 2011, to meet up with appellant and another man. Leonard and

appellant were cousins. Witnesses described the two men as very close friends

who frequently hung out together. On this occasion, Leonard was carrying his

.380 pistol with him. By appellant’s own account, he and Leonard planned to rob

the man accompanying them, who was a PCP dealer.2

1

Although the harmfulness of the first erroneous ruling suffices by itself to

entitle appellant to a new trial, we consider whether the second ruling also was

erroneous because otherwise the issue likely will arise again when the case is

retried. It is unnecessary, however, for us to consider whether the second error was

prejudicial.

2

Two voicemail messages from appellant on Leonard’s phone confirmed the

presence of a third man. In the first message, left at 11:26 p.m., appellant said,

“Come out before this MF changes his mind,” and in the second message, at 11:31

p.m., appellant said, “I got the bama with me.”

4

Within fifteen to twenty minutes, Leonard was lying dead in an alley in

Northeast Washington, D.C. He was killed by a single gunshot to his head, fired at

close range from his own pistol.3 A toxicology report concluded that Leonard had

ingested PCP within six hours of his death. Other than appellant, there were no

eyewitnesses to the killing.4

Around 4:30 a.m. the next morning, appellant arrived at his mother’s house,

sweating and crying. He asked his mother to call the police and tell them he had

information about Leonard’s death. Appellant told his family members and the

detectives who interviewed him that Leonard was shot by a drug dealer. His

accounts of how that happened were inconsistent. Ultimately, though, appellant

stated to the police that he and Leonard tried to rob a PCP dealer (the person who

was with appellant when Leonard joined them); that Leonard drew his gun and

attempted to shoot the dealer but the gun failed to fire; and that the dealer then

pulled out his own gun and shot Leonard.

3

The murder weapon was not recovered. A .380 shell casing found in the

alley matched the ammunition at Leonard’s father’s house.

4

Two people living nearby heard the gunshot at approximately 11:45 p.m.

and saw Leonard’s body in the alley; one of them also saw a man walk out of the

alley. He could not identify this person.

5

The parties agree that appellant’s stories of Leonard having been shot by a

drug dealer were fabrications. The government and appellant disagreed at trial as

to what actually occurred.

The government’s theory of the case was that appellant and Leonard robbed

someone, possibly a drug dealer, and that appellant afterwards shot Leonard in a

dispute over how to divide up the proceeds between them. The evidentiary basis

for this theory was the uncorroborated testimony of a self-described jailhouse

informant named Robert Bethea. Bethea, who was 37 years old at the time of trial,

had a lengthy criminal record and had spent most of his adult life in prison.5 He

had acted as a government informant and witness in seven different homicide cases

(including this one). In exchange for his cooperation, he had received numerous

benefits, including the dismissal or reduction of charges, sentencing concessions,

and tens of thousands of dollars in housing and living expenses through the witness

protection program. “If I’m going to put my life on the line, yeah, there’s got to be

some benefits,” Bethea testified. “[I]f I’m going to provide information, I’m going

to receive something in return.” Bethea insisted, though, that “receiv[ing]

5

The jury was informed that Bethea was convicted of cocaine possession in

1992 and again in 1994; robbery in 1993; escape in 1999; contempt in 2000;

assault in 2004; and distribution of heroin in 2011.

6

something in return” was not his only reason for serving as a government

informant: “I’m cooperating because of the benefits of cooperating,” he stated,

“and because, also, it’s the right thing to do. You’re talking about murder.” On

cross-examination, Bethea readily admitted that he was “not the most honest guy in

the world,” that he had committed “a lot” of crimes, and that if he were caught, he

would lie about what he had done to “weasel out of it.”6 However, Bethea was

adamant that he was “always truthful” and “very honest” when he provided

information about a murder committed by someone else. He would lie about his

own misconduct to get out of trouble, he said, but “for me to sit and lie on

somebody else to where it can cost them their whole life, never.”

Bethea claimed he earned appellant’s confidence while the two were locked

up together following appellant’s arrest in this case. Initially, Bethea testified,

appellant told him the same story he had told his family and police—that Leonard

was shot by a drug dealer in a robbery gone awry. Eventually, however, after a

number of conversations on the subject and some prodding by Bethea, appellant

confessed his own involvement in the shooting: “What [appellant] said,” Bethea

6

Bethea also acknowledged having given apparently false testimony when

asked about his nickname in his 2000 trial on drug charges, though he explained

that his answer was not dishonest, but reflected how he understood the question.

7

testified, “was that him and his cousin went on a robbery, they got the money, got

away and then his cousin be tripping off the PCP . . . and they got to arguing about

some money. Then he said he—he said, yeah.” Prompted to elaborate, Bethea

continued:

I said, you keep telling me that some other guy shot your

cousin, this and that. I said, man, I think you did it. And

then that’s when he just came out smiling and he said,

yeah, man, we were on the move,[7] man, we got the

money. Once we came back he be tripping off the [PCP]

and, yeah. And he had a smile on his face. And I just

looked at him and that’s when I knew that . . . [h]e killed

his cousin.

Apart from Bethea’s testimony, the government presented no evidence that

appellant killed Leonard in an argument over the proceeds of a robbery, or even

that there was a robbery or a dispute of any kind between appellant and Leonard.8

Thus, Bethea’s testimony about appellant’s confession to a murder was the

linchpin of the government’s case; the jury had to believe Bethea to convict

appellant.

7

“On the move” meant committing robbery or “some type of crime.”

8

The trial court granted appellant’s motion for a judgment of acquittal on

the charge of robbery at the close of the government’s case.

8

Testifying in his own defense, appellant denied having spoken with Bethea

about his case and gave a different account of Leonard’s death. According to

appellant, on the night of the shooting, he and Leonard planned to rob a PCP dealer

known to him as “Little Bob.” Outside Leonard’s father’s house, they got into

Little Bob’s car and drove off, on the pretext that they were going to consummate a

large purchase of PCP. On the way, Little Bob allowed Leonard to smoke a PCP-

laced cigarette to test the drug before they paid for it. After doing so, however,

Leonard unexpectedly became agitated and started rocking back and forth in his

seat, stomping his feet, and violently hitting the dashboard, “like the car was

closing in on him.” Apparently alarmed by Leonard’s behavior, Little Bob stopped

the car, jumped out, and fled. Leonard also got out of the car and staggered down

an alley. Appellant followed him and tried to calm him down and lead him away,

but Leonard, getting more and more out of control, pulled out his gun and pointed

it at appellant. Appellant attempted to wrest the gun away. A struggle ensued until

the gun went off and Leonard fell to the ground, mortally wounded.

Claiming he was in shock at this turn of events, appellant testified that he

wandered out of the alley and walked a few blocks before sitting down on some

steps to try to recover. Realizing he still had the gun, he abandoned it on the steps,

left the area, and returned to his mother’s house. Appellant admitted that the

9

stories he told his family and the police about the shooting were lies; he was in

denial and still in shock, he explained.

Appellant’s account was corroborated by the toxicological evidence

confirming that Leonard had ingested PCP, and by the voicemails indicating that

they were with a third person just before the shooting. But “Little Bob,” who

supposedly saw Leonard become agitated, did not appear as a witness; and no one

other than appellant saw the shooting. Thus, appellant’s credibility was essential

to his defense.

II.

The rulings challenged in this appeal concerned each side’s effort to

impeach the other side’s most important witness at trial. One ruling thwarted

appellant’s effort to show Bethea’s corruption and bias with evidence that he had

made a false report of a confession in another murder case. The other ruling

allowed the government to attack appellant’s veracity with extrinsic evidence of

prior misconduct for which appellant had not been convicted. We address these

rulings in turn.

10

A. The Limitation on the Impeachment of Bethea with Evidence of

Corruption Bias

Prior to trial, the government informed appellant of potential impeachment

evidence suggesting Bethea had made a false report of a murder confession in

another, unrelated case. In 2009, Bethea claimed that a fellow jail inmate named

Travis Freeman confessed to having shot and killed his cousin, Ryan Collins.

Bethea turned over to the government a hand-drawn map, which he said Freeman

had given him to show where he had buried the murder weapon. Freeman denied

Bethea’s report. Moreover, because Freeman was incarcerated when Collins was

murdered, he could not have committed the homicide or hidden the murder

weapon. Freeman was never charged with Collins’s murder.

Having commendably disclosed this potential impeachment evidence, the

government nonetheless moved to exclude any mention of it at appellant’s trial on

the ground that it was collateral. Appellant disagreed, arguing that it was strong

evidence Bethea had lied about Freeman’s confession and manufactured false

evidence, demonstrating not only the untruthfulness, but also the corruption and

bias of the government’s key witness. The ensuing colloquy between the court and

counsel over appellant’s right to explore these issues at trial extended over three

days. Initially, appellant argued somewhat more narrowly that he was entitled to

11

explore whether Bethea made a false report of a murder confession because it was

a prior bad act that bore directly on Bethea’s veracity with respect to the issues

involved in the trial.9 Under this rationale, appellant could have cross-examined

Bethea about the falsity of his report, but he would not have been allowed to prove

its falsity with extrinsic evidence.10 Appellant eventually broadened his argument,

however, to make clear that he sought to use the falsity of the report of Freeman’s

confession to establish Bethea’s corruption and consequent bias.11 Because bias is

not a collateral issue, “evidence from which the jury can infer bias may be

presented not only through cross-examination, but also by the introduction of

extrinsic evidence.”12

The trial court agreed that “the centrality of Mr. Bethea in this case is

apparent” and that the falsity of his claim that Freeman had confessed to a murder,

if shown, would be probative of his bias. The court accordingly allowed appellant

to cross-examine Bethea about his report of Freeman’s confession and map, to call

9

See Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983).

10

Id.

11

See Longus v. United States, 52 A.3d 836, 852 (D.C. 2012) (citing, inter

alia, In re C.B.N., 499 A.2d 1215, 1219 (D.C. 1985)).

12

Id.

12

Freeman as a defense witness to deny having made the confession or the map, and

to present other evidence (if it existed) showing that Bethea could not have heard

what he claimed.13

Yet even though the government was willing to stipulate that it was

physically impossible for Freeman to have committed the murder to which he

supposedly confessed, the court refused to permit appellant to present such a

stipulation or otherwise prove that Freeman did not kill his cousin.14 The court

reasoned that Freeman’s actual innocence was “irrelevant” to whether he had

confessed the murder to Bethea, because it did not “negate” the possibility that he

“could have said it.” Freeman, the court hypothesized, could have been boasting

about a crime he did not commit in order to bolster his reputation at the jail.

“People brag all the time,” the court observed, for “any number of different

reasons.”15 Appellant argued that while Freeman’s undisputed innocence may not

13

The court envisaged the possibility that evidence Bethea and Freeman

were never together at the Jail “obviously . . . would disprove” Bethea’s claim. No

such evidence was presented, however.

14

The government’s willingness to stipulate laid to rest any worry, which

the court entertained initially, that an inquiry into whether Freeman killed Collins

would metastasize into a “mini-trial” that might confuse and distract the jury.

15

As the court elaborated:

(continued…)

13

have made it literally impossible that he confessed the murder to Bethea, it

certainly made it a lot less likely and made Freeman’s denial of Bethea’s report a

lot more credible. “The idea that someone would confess to a crime that they

didn’t commit is so counterintuitive,” appellant pointed out, “that we’ve made an

exception to the hearsay rule. . . . [S]omeone wouldn’t say it, if it weren’t true.”

But the court was not persuaded by this argument.

The court’s restrictive ruling clearly hobbled appellant’s impeachment of

Bethea. On cross-examination, Bethea testified that when he and Freeman were

incarcerated together in the fall of 2009, Freeman told him he had killed Collins

and buried the gun he used to do it. To test whether Freeman’s story was true,

Bethea said, he asked Freeman to draw a map showing where he secreted the

murder weapon. Freeman complied with this request. Bethea reported this

information and provided the map to prosecutors. Bethea testified he heard

nothing back from them about the case and therefore surmised Freeman “probably

(continued…)

I suspect that people in the jail may boast about any

number of different things that are not true, precisely

because jail’s a dangerous place. People get hurt. And

so people may very well admit to—oh, I’ve shot people.

I’ve done this. I’m the baddest person on the block. I’m

in this gang, [etc.], because there’s a lot of bravado there.

14

was lying.” On redirect, though, Bethea elaborated on the circumstances of

Freeman’s confession, recalling that Freeman originally blamed someone else for

Collins’s murder before he finally “broke down” one night under Bethea’s

prodding and admitted to it—all of which suggested that Freeman was not lying at

all when he allegedly confessed.

In the defense case, appellant called Travis Freeman to the witness stand.

Freeman testified that his cousin was killed in a robbery attempt. He denied

knowing Bethea, telling him he had killed Collins and buried the murder weapon,

or drawing a map showing where the gun was hidden. Freeman confirmed that he

was never charged with the homicide. However, he was prevented from testifying

that he could not possibly have killed Collins or secreted the gun because he was in

custody at the time.16 On cross-examination, the prosecutor elicited Freeman’s

acknowledgement that he was familiar with the area of First and Ingraham Streets

Northwest and then confronted him with a hand-drawn map of that area. Freeman

denied having drawn it.

16

When Freeman was asked whether he ever drew anyone a map showing

where he had buried the gun used to kill Collins, he began his answer by saying,

“No. That’s impossible, sir, because I was in—,” and the court sustained the

government’s objection and cut him off.

15

In its rebuttal case, the government recalled Bethea to the stand. Over

appellant’s objection, Bethea identified the map the prosecutor had shown Freeman

as the same one Freeman had drawn for him. Bethea explained that he was able to

convince Freeman to draw it by offering to help him retrieve the gun he had

buried. The map was admitted in evidence (again, over appellant’s objection).17 In

view of this rebuttal evidence, appellant renewed his request for permission to call

Freeman to testify that he could not have killed Collins or buried the murder

weapon because he was in custody at the time. Adhering to its prior ruling that the

evidence was irrelevant, the court denied the request.18

Bethea thus came through this attempted bias impeachment unscathed. Not

having heard that Freeman indisputably did not kill Collins or bury the murder

weapon, and having seen the map Freeman allegedly drew, the jury had no reason

to believe Freeman, or to disbelieve Bethea’s testimony and perceive him to be a

17

While the map was produced in court, nothing established that Freeman

drew it other than Bethea’s word. Nor was there evidence that a gun was found in

the hiding place shown on the map.

18

In doing so, the court again raised the specter of “a mini-trial over whether

or not Mr. Freeman did a murder or paid anyone to do a murder.” But the

government was prepared to stipulate that Freeman did not commit the murder, and

it never proffered anything to support the speculation that Freeman hired someone

to kill Collins.

16

corrupt informant who would fabricate the confession of an innocent man and

manufacture incriminating evidence. In closing argument, the government thus

was well able to argue that Bethea was a trustworthy informant with a good track

record; that “[t]he reason he continues to sell information and the reason people

buy it still is because it can be credited”; and that Bethea “doesn’t like murderers,

and he is very pleased to tell the government [when] people who are charged with

murder admit their crimes to him, people like this defendant.” And in response to

appellant’s crippled suggestion that Freeman’s testimony showed otherwise, the

government in rebuttal was poised to dismiss it out of hand, by arguing as follows:

Mr. Freeman is the person who denies to you that he ever

said he killed anybody, to Robert Bethea or anyone else.

Is anyone surprised about that? Is anyone surprised that

Mr. Freeman didn’t get on the stand and say, [w]ell,

actually, yeah, I [did] tell Robert Bethea back in 2009

that I killed somebody. . . . That would have been a jaw-

dropping moment for Travis Freeman to get on the stand

and say, yeah, I did admit to killing a guy, yeah. . . . No

one expected that to happen. Of course, it didn’t

happen. . . . There’s no way Mr. Freeman was going to

admit that he confessed to a murder. But he does know

that area [described in the map]. He did admit that,

doesn’t he?

17

This would have been a difficult argument to make if the jury had learned that it

was physically impossible for Freeman to have killed Collins.19

We are persuaded it was reversible error to preclude appellant from

introducing a stipulation or other evidence that Freeman could not and did not

commit the murder to which he allegedly confessed. Freeman was relevant to this

case only if he did not confess to Bethea. His unquestioned innocence of the

murder was the strongest evidence that he did not confess. There was no sound

justification for depriving the jury of this pertinent information.

Extrinsic evidence showing Bethea fabricated his report of Freeman’s

confession was admissible (as the trial court recognized) because it was probative

not merely of his lack of veracity, but of his corruption—his “willingness to

19

Appellant intimates in his briefs that to the extent the government’s

rebuttal argument implied Freeman could have been guilty of his cousin’s murder,

it was misleading (citing Woodard v. United States, 56 A.3d 125, 128 (D.C. 2012)

(“[A] prosecutor’s misleading statements during closing argument, especially

rebuttal argument, may ‘so infect [] [a] trial with unfairness as to make the

resulting conviction a denial of due process.’”) (quoting Darden v. Wainwright,

477 U.S. 168, 181 (1986))). Appellant did not object to the argument on this

ground at trial, however, nor does he directly assert on appeal that the trial court

erred by failing to take corrective action sua sponte. We therefore refrain from

determining whether the argument was improper or, if so, whether appellant would

be entitled to relief for that reason.

18

obstruct the discovery of the truth by manufacturing or suppressing testimony” or

otherwise “to thwart the ascertainment of truth in a judicial proceeding.”20 Such

corruption is acknowledged to be a distinct form of testimonial bias.21 And

because the bias of a witness is always a proper subject of inquiry, in a criminal

case “[a] trial court’s refusal to allow questioning [by the defendant] about facts

indicative of a witness’s bias from which the jury could reasonably draw adverse

inferences of reliability is an error of constitutional dimension”22—specifically, a

violation of the defendant’s Sixth Amendment right of confrontation. While that

right is “subject to reasonable limits imposed at the discretion of the trial judge,”23

the exercise of such discretion “cannot justify a curtailment which keeps from the

jury relevant and important facts bearing on the trustworthiness of crucial

testimony.”24

20

Longus, 52 A.3d at 852 (quoting, respectively, In re C.B.N., 499 A.2d at

1219, and (Reginald) Bennett v. United States, 763 A.2d 1117, 1123 (D.C. 2000));

see also id., 52 A.3d at 853-54 n.29 (“[W]e wish to lay to rest any suggestion that

‘prior bad acts’ of the witness are not admissible in bias examination.”).

21

Id. at 852.

22

Id. (internal quotation marks and brackets omitted).

23

Scull v. United States, 564 A.2d 1161, 1164 (D.C. 1989).

24

(Jerry) Bennett v. United States, 797 A.2d 1251, 1257 (D.C. 2002)

(internal quotation marks omitted).

19

The trial court in this case was familiar with the foregoing principles and

undertook to apply them properly. The court’s error was in deeming Freeman’s

uncontested innocence of Collins’s murder to be irrelevant to the question of

Bethea’s corruption bias because it did not prove conclusively that Bethea

fabricated Freeman’s confession. This set the bar too high. “The probativity

threshold for purposes of admissibility is low: An item of evidence, to be relevant,

need only ‘tend[] to make the existence or nonexistence of a fact more or less

probable than would be the case without that evidence.’”25 The evidence that it

was physically impossible for Freeman to have killed his cousin or buried the

murder weapon easily met this test, for, as a rule, “we believe that it is unlikely that

a rational person would admit to a crime if it were not true.”26 Nor is it implausible

that a jailhouse informant would, in order to curry favor with the government or for

other personal motives, lie about a fellow inmate having confessed.27 Thus, the

proffered evidence of Freeman’s undeniable innocence certainly would have

25

In re L.C., 92 A.3d 290, 297 (D.C. 2014) (quoting Punch v. United States,

377 A.2d 1353, 1358 (D.C. 1977)).

26

Laumer v. United States, 409 A.2d 190, 197 (D.C. 1979) (en banc).

27

“The likelihood that evidence gathered by self-interested jailhouse

informants may be false cannot be ignored.” Kansas v. Ventris, 556 U.S. 586, 597

n.2 (2009) (Stevens, J. dissenting). See, e.g., Hon. Stephen S. Trott, Words of

Warning for Prosecutors Using Criminals as Witnesses, 47 HASTINGS L. J. 1381,

1394 (1996) (“The most dangerous informer of all is the jailhouse snitch who

(continued…)

20

helped appellant “establish the . . . improbability”28 of Bethea’s testimony that

Freeman “broke down,” admitted killing his cousin, and drew Bethea a map

showing where he hid the gun he used to commit the homicide. The mere

conjecture by the court that Freeman was boasting of a crime he did not commit,

which in point of fact was inconsistent with Bethea’s account,29 was not a proper

ground on which to exclude the evidence of Freeman’s factual innocence as

irrelevant. “[E]vidence may not be rejected as irrelevant merely because it is

(continued…)

claims another prisoner has confessed to him. The snitch now stands ready to

testify in return for some consideration in his own case. Sometimes these snitches

tell the truth, but more often they invent testimony and stray details out of the

air[.]”); Jackson v. Brown, 513 F.3d 1057, 1077-78 (9th Cir. 2008) (explaining that

“promises of assistance . . . gave [two jailhouse informants] a strong incentive to

lie about exactly that part of the testimony that was most crucial to” the charged

offense); Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d Cir. 2004) (quoting

authorities observing that jailhouse informants’ “testimony is oftentimes partially

or completely fabricated”) (citations omitted); United States v. Cervantes-Pacheco,

826 F.2d 310, 315 (5th Cir. 1987) (“It is difficult to imagine a greater motivation to

lie than the inducement of a reduced sentence.”); United States v. Meinster, 619

F.2d 1041, 1044-45 (4th Cir. 1980) (“We think it obvious that promises of

immunity or leniency premised on cooperation in a particular case may provide a

strong inducement to falsify in that case.”); United States v. Alexander, 430 F.2d

904, 906 (D.C. Cir. 1970) (describing prisoner affidavits stating that appellant’s

deceased accomplice had confessed as “inherently incredible”).

28

In re L.C., 92 A.3d at 298 (quoting Plummer v. United States, 813 A.2d

182, 188-89 (D.C. 2002)).

29

Bethea’s description of Freeman’s reluctant confession was a far cry from

the boastful posturing the court imagined.

21

contradicted by other evidence,”30 let alone because it is contrary to a theoretically

plausible but factually unsubstantiated speculation.

The excluded evidence of Freeman’s innocence was far from cumulative of

other evidence demonstrating Bethea’s corruption bias. To be sure, Bethea’s

credibility was impeached in other ways (for example, by his ironically candid

admission that he would lie about his own wrongdoing to get out of trouble), and

there was ample evidence of his motive to curry favor with the government. But

impeachment of a witness’s credibility is not a substitute for bias impeachment,

and we have recognized that “the allowance of some examination for one type of

bias (currying favor with the government) does not satisfy the Sixth Amendment

with respect to cross-examination for corruption, a different type of bias.”31 None

of this other impeachment evidence made a serious dent in the government’s

argument that it was in Bethea’s self-interest to provide only truthful reports as a

government informant and that he had a sterling track record of doing so. While

appellant could still attempt to make a corruption bias argument, none of this other

30

In re L.C., 92 A.3d at 298.

31

Longus, 52 A.3d at 52.

22

evidence of his motive to curry favor and lack of veracity directly showed that

Bethea was corrupt in the sense we use the term here.

Without the excluded evidence of Freeman’s innocence, the jury thus had

little or no reason to credit his uncorroborated denial of Bethea’s testimony about

him, and therefore little or no reason to conclude that Bethea was in fact motivated

to manufacture incriminating evidence against appellant. If anything, the effect of

the court’s ruling was to render the testimony concerning Freeman a distracting

sideshow that ended up bolstering the credibility of Bethea’s assertion that he

would never lie about someone having admitted to a murder. But if the jury had

known Freeman could not possibly have committed the murder, it might well have

credited his denial and believed that Bethea had lied and manufactured falsely

incriminating evidence in his case. Bethea’s corruption bias then would have been

manifest, and the jury would have had ample reason to distrust his report of

appellant’s confession. We have recognized in the past that “[i]f a witness is

willing to lie about a murder, a jury may well conclude that she is likely to be

willing to lie about anything. More particularly, if she has lied about one murder,

there may be little if any reason to credit her testimony about a different murder.”32

32

(Jerry) Bennett, 797 A.2d at 1255-56.

23

Apart from its mistaken relevance determination, the trial court had no other

sound reason to exclude the evidence of Freeman’s innocence. The only other

concern the court identified—the risk of a mini-trial on the issue that might distract

and confuse the jury—was dispelled by the government’s stated willingness to

stipulate that Freeman did not commit the murder of his cousin. There would have

been no mini-trial, and no attendant risk of jury confusion.

On appeal, the government argues that appellant did not have a

constitutional right to confront Bethea about Freeman because his factual proffer

did not “show convincingly” that Bethea had lied about Freeman’s confession.

This argument misapprehends the nature of the impeachment here. We have said

that where a defendant seeks to present evidence of a witness’s prior false claim in

order to impeach the witness’s credibility but not to prove his testimonial bias in

the case at bar, “the confrontation clause mandates that the trial court give [the]

defendant leave to examine about the prior claim only where it is ‘shown

convincingly’ that the prior claim is false.”33 Here, however, the impeachment of

Bethea was for bias. In order to be constitutionally entitled to pursue a line of bias

33

Garibay v. United States, 72 A.3d 133, 138 (D.C. 2013) (quoting

Roundtree v. United States, 581 A.2d 315, 321 (D.C. 1990)); see also Sherer v.

United States, 470 A.2d 732, 738-39 (D.C. 1983).

24

inquiry, a party need only “proffer ‘some facts which support a genuine belief’ that

the witness is biased in the manner asserted”34 or, lacking such facts, at least “a

‘well-reasoned suspicion’ [of bias] rather than ‘an improbable flight of fancy.’”35

This standard is more lenient than the “shown convincingly” standard for general

credibility impeachment with prior false claims, and it unquestionably was

satisfied here by Freeman’s denial that he had confessed to a murder and the

government’s acknowledgment that Freeman could not have committed it.

We hold that, by withholding from the jury “relevant and important facts

bearing on the trustworthiness of crucial testimony,”36 the trial court’s ruling

violated appellant’s Sixth Amendment right to confront the witnesses against him.

Given the centrality of Bethea’s testimony to the government’s case against

appellant, the absence of evidence corroborating Bethea’s report of appellant’s

confession, and the uniqueness and potential value of evidence demonstrative of

34

(Irving) Jones v. United States, 516 A.2d 513, 517 (D.C. 1986) (citation

omitted).

35

(Rocky) Brown v. United States, 683 A.2d 118, 125 (D.C. 1996) (quoting

Scull v. United States, 564 A.2d 1161, 1164 (D.C. 1989)); see also Clayborne v.

United States, 751 A.2d 956, 963 (D.C. 2000) (counsel must proffer a “well-

grounded” basis that the inquiry will be “probative of bias.”).

36

(Jerry) Bennett, 797 A.2d at 1257.

25

Bethea’s corrupt willingness to fabricate false evidence of guilt in a murder case,

we cannot find the constitutional error harmless beyond a reasonable doubt.37

Appellant is entitled to a new trial on this ground.

B. The Impeachment of Appellant’s Veracity With Extrinsic Evidence

of Prior Uncharged Misconduct

The second challenged ruling allowed the government to introduce

appellant’s videotaped admission of prior uncharged misconduct—what appellant

referred to as “trick” robberies—for the purpose of attacking his character for

truthfulness. We agree with appellant that this ruling was erroneous.

During his interrogation by police, appellant denied having robbed anyone

with his cousin Leonard and explained his own preferred modus operandi as

follows:

37

See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (“The correct

inquiry is whether, assuming that the damaging potential of the [impeachment]

were fully realized, a reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt.”); (Emmett) Jones v. United States, 853 A.2d

146, 154 (D.C. 2004) (“To show harmlessness beyond a reasonable doubt, the

government must show that (1) appellant would have been convicted without the

witness’s testimony, or (2) the restricted line of questioning would not have

weakened the impact of the witness’s testimony.”).

26

You know . . . usually I try to get a flip in, but when you

got something sweet, he know I don’t do nothing but

sweet rob—I ain’t never robbed nobody with a gun. . . . I

do trick robbery. I talk you out your money. You know

what I’m saying? Act like I’m doing this and I’m doing

this, and I’m getting you. But all the—I do trick robbery.

Over appellant’s objection, the trial court allowed the government to introduce

these statements in its case-in-chief because they would help the jury evaluate

appellant’s veracity when (as was anticipated from the defense opening statement)

he later took the stand. The court explained:

It seems to me that he’s basically saying his weapon, if

anything, is his mouth. He basically is a con person. He

talks you out of your money. And if that portion is to be

credited, it’s probative of whether or not, it seems to me,

his in-court testimony is to be credited by that jury on

whether or not he’s, quote, unquote, conning them, as he

says he does in this particular statement[.]

In other words, the court stated, appellant’s statements were admissible to show

that he was not “a truth teller.”

When appellant did take the stand and testify, the government did not cross-

examine him about his “trick robberies” statement. But at the trial’s conclusion,

the prosecutor ended his rebuttal argument by reminding the jury of appellant’s

admission that “[h]e was a trickster” and telling the jury that appellant “was trying

to trick you when he got on the stand.”

27

Allowing the government to introduce appellant’s “trick robbery”

admissions in evidence and use them to attack his truthfulness as a witness was

improper. Appellant’s “trick robberies” were prior bad acts, and his recorded out-

of-court statements to the police constituted extrinsic evidence of those acts. As

this court explained in Sherer, under our case law it is impermissible to impeach a

witness’s truthfulness with extrinsic evidence of prior bad acts that did not result in

a criminal conviction:

The general credibility of a witness can be impeached by

evidence that the witness has been convicted of a

[felony], or of a crime involving dishonesty or false

statement. The conviction can be established either

through cross-examination or by extrinsic evidence.

In contrast, a witness may be cross-examined on a

prior bad act that has not resulted in a criminal conviction

only where: (1) the examiner has a factual predicate for

such question, and (2) the bad act bears directly upon the

veracity of the witness in respect to the issues involved

[in] the trial. Moreover, where such impeachment is

permitted, evidence of the prior misconduct may be

elicited only by cross-examination of the witness; it may

not be proved by extrinsic evidence.[38]

38

Sherer, 470 A.2d at 738 (internal quotation marks and citations omitted);

see also (James) Brown v. United States, 726 A.2d 149, 153 (D.C. 1999) (“Prior

bad acts not rising to the level of a criminal conviction . . . cannot be proven by

extrinsic evidence.”); D.C. Code § 14-305 (b)(1) (providing that “for the purpose

of attacking the credibility of a witness, evidence that the witness has been

convicted of a criminal offense shall be admitted if offered, either upon the cross-

examination of the witness or by evidence aliunde. . . .”).

28

We have recognized no exception to this rule where the extrinsic proof of the prior

misconduct consists of the witness’s out-of-court admissions.39

The government argues that appellant’s statements about committing trick

robberies were admissible as false statements evincing his consciousness of guilt.40

However, that was not the basis on which the court admitted appellant’s

statements, nor was it how the government used them. The government argued

that appellant’s trick robbery claims were true, not false, and that they showed his

dishonesty, not his consciousness of guilt.

At his new trial, this extrinsic evidence of prior uncharged misconduct may

not be admitted to attack appellant’s veracity.

39

Cf. United States v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008)

(explaining that extrinsic evidence of prior misconduct to prove a witness’s

untruthfulness is prohibited by Federal Rule of Evidence 608 (b) even if the

witness admits the misconduct).

40

See Nelson v. United States, 601 A.2d 582, 595 (D.C. 1991) (“[A] false

statement made by a defendant in explanation of conduct which is the subject of

criminal charges against him is admissible as tending to show consciousness of

guilt.”).

29

III.

For the foregoing reasons, we vacate appellant’s convictions and remand for

a new trial.

So ordered.