# Jones v. United States

> District of Columbia Court of Appeals · October 22, 1986 · 516 A.2d 513

URL: https://www.frixlaw.com/law-library/cases/9544224

## Case

- **Full name:** Irving J. JONES, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 22, 1986
- **Citations:** 516 A.2d 513; 1986 D.C. App. LEXIS 459
- **Precedential status:** Published
- **Opinion:** Dissent by Burgess
- **Judges:** Pryor, Bel-Son, Burgess
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544224

## How later opinions describe it (automated extraction)

- holding the extent of cross examination is within the sound discretion of the trial court

## Opinion text

BURGESS, Associate Judge,
dissenting:
I am unable to find a sustainable basis for excluding the proposed bias cross-examination in this case. Accordingly, because I cannot find the error harmless beyond a reasonable doubt, I must vote to reverse.
Defense counsel proffered to the trial court that the complaining witness, Forrest Jackson, was biased against his client on account of a prior transaction in which Jackson sold drugs to appellant. When asked the source of his information, counsel replied that the source was his client. When asked why the complainant would be biased, counsel replied that because “something was wrong” with the transaction, the complainant was “dissatisfied.” The trial court excluded the line of questioning because it was “much too thin to constitute ... bias arising from the situation [in] which the witness allegedly sold.”
The government argues first that defense counsel did not “adequately explain” the basis of his question. The majority, rightly in my view, does not base its decision on this reasoning. To guard against the danger that counsel will ask “highly prejudicial questions of witnesses with the almost certain knowledge that the insinuations are false,” United States v. Pugh, 141 U.S.App.D.C. 68, 71 , 436 F.2d 222, 225 (1970), our courts have established standards for ascertaining whether or not counsel has a good faith basis for a line of cross-examination in a criminal trial. Where counsel has no foundation in fact for the question, the basis must be a “well-reasoned suspicion”, not merely “an improbable flight of fancy.” Id. at 71 , 436 F.2d at 225 ; Collins v. United States, 491 A.2d 480, 487 (D.C.1985). In the present case, however, counsel did not have to rely on suspicion; he possessed a factual foundation in information from his own client. That information was sufficient to establish a good faith basis unless it was “known by counsel to be false”, or “inherently incredible.” Hazel v. United States, 319 A.2d 136, 139 (D.C.1974). The record does not show that counsel knew his information to be false. Nor is it “inherently incredible” that a drug seller, or any seller, will be dissatisfied with a transaction and develop a hostility toward the buyer arising *521 out of that transaction. Accordingly, counsel did proffer “some facts which supported] a genuine belief” that the witness was biased. United States v. Fowler, 151 U.S.App.D.C. 79, 81 , 465 F.2d 664, 666 (1972).
The government argues that defense counsel should have explained how and why the seller was dissatisfied. This affirmative burden on defense counsel to demonstrate why his predicate is sound is inconsistent with the rule that good faith is established if a predicate, not known to be false, is not “inherently incredible.”
The government also argues, and the majority agrees, that the defense did not adequately demonstrate the relevance of the proposed cross-examination. “ ‘Bias is always a proper subject of cross-examination.’ ” Springer v. United States, 388 A.2d 846, 855 (D.C.1978) (quoting Hyman v. Ünited States, 342 A.2d 43, 44 (D.C.1975)). The test for relevance is whether the evidence proposed to be elicited “ ‘possesses] a potential for connoting bias’ ”. Flecker 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) (quoting Austin v. United States, 135 U.S.App.D.C. 240, 243 , 418 F.2d 456, 459 (1969)). Here, the proposed line of questioning had that potential.
The defense wanted to show that Jackson harbored an animosity toward appellant arising out of dissatisfaction with a prior drug transaction. Johnson v. United States, 418 A.2d 136, 141-42 (D.C.1980), recognizes the relevance of bias cross-examination where the buyer in a drug transaction develops a hostility toward the seller because he has been sold bad drugs. But bad goods are not the only source of dissatisfaction in commercial transactions, and buyers are not the only parties who may become dissatisfied. A seller might become dissatisfied with a transaction and develop a hostility toward the buyer for failure to pay or insufficient payment, among other reasons. Thus, I believe that the situation counsel sought to explore possessed the potential for bias. As stated in 3 J. Weinstein & M. BeRGER, Weinstein’s Evidence ¶ 607[3], at 30, 32 (1982):
Relationships between a party and a witness are always relevant to a showing of bias whether the relationship is based on ties of family, sex — heterosexual or homosexual — employment, business, friendship, enmity or fear. [Emphasis added.]
It is argued, however, that defense counsel did not make an adequate proffer of relevance because he did not tell the trial court how or why the seller was dissatisfied, and when and where the transaction took place. This argument again places too great a burden on defense counsel. At least since Alford v. United States, 282 U.S. 687, 692 , 51 S.Ct. 218, 219 , 75 L.Ed. 624 (1931), the Supreme Court has recognized that
[c]ounsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory....
The courts in this jurisdiction have likewise emphasized this aspect of cross-examination. Pugh, 141 U.S.App.D.C. at 71 n. 3, 436 F.2d at 225 n. 3; Best v. United States, 328 A.2d 378 , 382 n. 3 (D.C.1974).
We may assume that counsel did not know how or why the witness had become dissatisfied, and, therefore, could not proffer the reason to the trial court. The defendant may have known the reason and not transmitted it to counsel. Or defendant may have perceived the dissatisfaction and not understood the reason for it. But even if the cause of dissatisfaction was not known to defense counsel, curtailment of the examination was not justified. Counsel cannot always tell a court in advance the facts that exploratory cross-examination into bias may well bring to light. 1 All *522 counsel need show is the potential for bias. “[A]n important way of demonstrating a witness’ bias is showing the possibility of hostility stemming from a previous conflict between the witness and the adverse party.” Staton v. United States, 466 A.2d 1245, 1250 (D.C.1983) (emphasis added).
Moreover, I do not see how informing the trial court of when and where the transaction took place is a necessary predicate to bias cross-examination in this case. Where the drug transaction occurred is of no use in determining whether it gave rise to a hostile emotion. When it occurred might be useful where there is some likelihood that the incident was remote in time. Here, however, the defendant and complainant were young men. It is highly unlikely that the alleged incident was so remote as to have no bearing on the witness’ credibility.
I am concerned that suggestions that counsel must necessarily possess details such as when and where something occurred, or why a person is hostile, will undermine the principle that bias cross-examination is necessarily exploratory. Requiring such amplification appears to be directed more at a concern about counsel’s good faith basis than about the relevance of the line of questioning.
Recognizing the importance of exploratory cross-examination, our court has several times rejected arguments that the defense made an inadequate proffer to show the relevance of bias cross-examination. Best, 328 A.2d at 382 & n. 3; Moss v. United States, 368 A.2d 1131 , 1135 n. 2 (D.C.1977); Gillespie v. United States, 368 A.2d 1136, 1138 (D.C.1977). In Best , for example, the government argued that trial counsel had failed to show how the alleged bias of a witness was relevant to the question of guilt or innocence; the relevance was “clar-ifie[d]” only on closing argument and appeal. 328 A.2d at 380 . This court recognized trial counsel’s failure fully to articulate relevance, but observed:
These deficiencies, however, did not justify the complete curtailment of questioning. An exhaustive proffer is not normally a strict requirement for initiation of a line of cross-examination.
Id. at 382 ; see also Smith v. United States, 389 A.2d 1364, 1370 (D.C.1978). I find the relevance to bias of the proposed cross-examination in the present case at least as clear as that in Best , if not more so. 2 Thus, I cannot agree that counsel *523 made a proffer inadequate to show relevance.
Since counsel’s proposed line of cross-examination was made in good faith and was relevant to show bias, I conclude that the trial court had no discretion to cut it off. A trial court has considerable discretion to limit bias cross-examination into sensitive matters such as a witness’ prior bad acts, but that discretion exists only after some cross-examination is allowed. Tinker v. United States, 135 U.S.App.D.C. 127 -28, 417 F.2d 542, 544-45 , cert. denied, 396 U.S. 864 , 90 S.Ct. 141 , 24 L.Ed.2d 118 (1969). See also Collins v. United States, supra, 491 A.2d at 487 .
The government argues that the error was harmless. Under Delaware v. Van Arsdall, — U.S. -, 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674 (1986), error in precluding bias cross-examination must be evaluated under the harmless error standard of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Van Arsdall , thus, overrules that aspect of Springer v. United States, 388 A.2d 846, 856 (D.C.1978), holding that in limine curtailment must be evaluated by a per se error standard. See James v. United States, 514 A.2d 793, 796 (D.C.1986). Under Van Arsdall , “[t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized,” this court “might nonetheless say that the error was harmless beyond a reasonable doubt.” — U.S. -, 106 S.Ct. at 1438 , 89 L.Ed.2d 674 . This formulation, which assumes that the witness’ credibility is undermined, appears to accord with our cases holding that, where the record does not disclose what evidence the cross-examination would have elicited, the government must show beyond a reasonable doubt that the defendant would have been convicted without the witness’ testimony. Tabron v. United States, 444 A.2d 942, 944 (D.C.1982).
Appellant was alleged to have assisted the gunman, Leonard Briscoe, in robbing Jackson. Briscoe then robbed another victim after his aider and abettor ran away down an alley. An off-duty police officer, surprising Briscoe in the course of the second robbery, shot him as he escaped. Bris-coe got into a car at the mouth of an alley. Evidence on both sides agreed that appellant and Briscoe’s brother, Maurice, were in the car. They drove Briscoe to a hospital, where he died. The police located the car at the hospital shortly after it arrived and arrested appellant and Maurice Bris-coe. A gun was found on the street nearby. Inside the car was a beige jacket which contained several of Forrest Jackson’s credit cards. The police also found in the car a blue duffle bag, which contained Jackson’s belongings.
The defense put on an implausible, but conceivable, alibi. Several witnesses, including Maurice Briscoe, testified that appellant and he had been at a party before the robbery. According to Briscoe, corroborated by Angela Harris, after the party he and appellant drove Harris to her home in the area of the robbery. They were waiting for her to go to her house and get a telephone number to give to Maurice Bris-coe when his brother appeared, injured, and asked to be taken to the hospital.
Several government witnesses identified appellant, but all the identifications except Jackson’s were subject to doubt. Three witnesses stated at the show-up only that appellant “looked like,” or “looked familiar to” the person with the gunman. Two of these witnesses made no in-court identification; the one who made such an identification testified that at the show-up he did not recognize appellant. Another witness, Price, made a positive in-court identification. He was a friend of Jackson’s, however, and was impeached with evidence that he did not tell the police on the scene that he had seen the robbery of Forrest *524 Jackson, and that he did not tell the police after the show-up that he recognized any of the suspects. Jackson, therefore, was the only witness who gave both positive show-up and in-court identifications. Moreover, he was the only witness who could describe in detail the robbery itself, and was the only witness who claimed to know appellant.
The government also offered strong circumstantial evidence. Appellant’s admitted presence in the car was part of that evidence, but more important were Jackson’s credit cards in the beige jacket, which the government argued was appellant’s. However, the only descriptive evidence linking the jacket to appellant was testimony by Jackson and his friend, Price. Jackson’s testimony cannot be considered in this harmless error analysis and Price’s must be discounted because of his relationship to Jackson and his failure to provide an on-the-scene description or identification.
The government reasoned at trial that the beige jacket must have been appellant’s because it was found in the front seat, where appellant sat; because Leonard Bris-coe, who drove, said the jacket was not his; and because the jacket, with no blood on it, could not have been the wounded gunman’s. This evidence, however, was also disputed. A police officer testified that the jacket was found in the back seat. He said there was blood on both it and a blue jacket, found just outside the parked car. Leonard Briscoe testified that appellant was wearing the blue, not the beige jacket.
Viewing all of the evidence summarized in the foregoing paragraphs, and leaving credibility issues to the jury, I cannot say beyond a reasonable doubt that the jury would have convicted appellant without Jackson’s testimony. Jackson’s testimony was not merely cumulative, and the other evidence, subject to doubt on various grounds, was not overwhelming. Accordingly, I must respectfully vote to reverse.
. A noteworthy illustration of this is Smith v. Illinois, 390 U.S. 129, 131 , 88 S.Ct. 748, 749 , 19 L.Ed.2d 956 (1968), where the Supreme Court found reversible error in the trial court’s preclusion of cross-examination designed to learn the true name and address of a government witness. *522 The basis for the holding was not that the name and address were important as evidence themselves but rather that they "open[ed] countless avenues of in-court examination and out-of-court investigation.”
. The majority misplaces reliance on Best as an example of a proffer of relevance more ample than the proffer here. It is true that in Best , counsel’s proffer explicitly revealed an intent to demonstrate the arresting officer’s bias by showing that he had hit the defendant at the police station after the arrest. Counsel, however, was unable to show why the striking would demonstrate bias, since he was unable to proffer that it was unjustified. Moreover, defense counsel was unable to proffer how impeaching the officer was relevant to any material issue. The key issue was whether the alleged robbery victim, a Mrs. Reid, reliably identified currency found on defendant as her own, by virtue of its folded, old and worn condition. Given that any evidence of police brutality possesses the potential for inflaming and distracting the jury, the trial judge understandably would have been concerned about admitting it without a proffer demonstrating relevance. On appeal, this court acknowledged that defense counsel made an incomplete and therefore "deficien[t]’’ proffer by failing to show how the hitting demonstrated the officer’s bias and how bias "was ultimately related to the question of guilt or innocence.” 328 A.2d at 382 .
Defense counsel, however, was able, after the fact, to “clarify the relevance of his line of questioning." He proffered on appeal that, contrary to the officer’s and Mrs. Reid’s denials, the officer had told Mrs. Reid the condition of the currency before she had described it. Counsel’s theory, not disclosed to the trial court, was, therefore, that “impeachment of Officer Robert's testimony on this point would necessarily have impaired that of Mrs. Reid.” 328 A.2d at 381 . Having been provided this post hoc clarification, this court found error in the complete curtailment of the examination, reaffirming that "[a]n exhaustive proffer is not normally a strict requirement for initiation of a line of cross-examination.” Id. at 382 .
An unarticulated theory of relevance, whereby one witness’ testimony is impeached through *523 exposure of another's bias, calls for more, not less, explanation to a trial judge than an assertion that a witness is hostile against a party because dissatisfied with a prior drug (or other) transaction between the two. Yet the result is that in Best error is found and here it is not.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544224. Public record. Not legal advice.