McBride v. United States

KERN, Associate Judge,

dissenting:

With all deference, the decision to remand this simple assault case — after the issue of self-defense was fully tried to the jury — for still more proceedings in the trial court constitutes the kind of appellate nitpicking which erodes public confidence in the courts and confirms Mr. Bumble’s acrid observation about the law. 1

Appellant’s brief succinctly 2 puts the case in context.

There is no dispute that on the morning of April 26, 1979, Charlene McBride at one point hit Adrian Gray with a stick. The contested issue at trial was whether Ms. McBride acted without provocation, as the Government contended, or in self-defense as appellant claimed.

The government witnesses, consisting of complainant, her sister and a friend, testified that appellant McBride struck and bloodied complainant Gray with a stick without provocation or justification.

The five defense witnesses, among whom were the defendant, her sister and a friend, testified that appellant had been threatened verbally and physically before finally picking up a stick from a trash can and striking complainant in self-defense.

Specifically, appellant recounted to the jury that on the day before the alleged stick-swinging incident she had had a fight with complainant’s sister and, as a consequence, was threatened over the phone by complainant (Record at 127, 129, 132); that her sister, with whom she was living (Record at 75), also received threatening phone calls from the complainant, the complainant’s sister and a friend of complainant (Record at 129, 156); that, thereafter, on the day of the incident, she encountered these same people — armed with a knife— and they chased her home (Record at 130-31); and that, finally, when she went back outside, she had to pluck up a stick to defend herself from their armed attack. (Record at 143.)

Appellant’s sister told the jury from the stand that the apartment which she shared with appellant was the target of abusive phone calls from complainant and her sister just prior to the alleged criminal incident. (Record at 79-80.)

Two other defense witnesses testified that the complainant had been armed with a knife and attacked appellant. (Record at 96, 111-12.) Another defense witness confirmed seeing a knife exactly at the scene *659 of the confrontation where complainant had been. (Record at 71, 73.)

The jury, with this rich tapestry of testimony before it, acquitted appellant of assault but convicted her of possessing a prohibited weapon, viz., the stick. The majority, however, is dissatisfied with the result of the trial. It concludes that the judge hamstrung the defendant’s presentation of her defense of self-defense.

The majority objects to two rulings by the court during this multi-witness trial. The majority opines that such rulings prevented the jury from hearing sufficiently about the threats from the complaining witness and her sister and her friend which were directed, variously, to appellant, her sister and her friend before the stick-swinging encounter. Thus, the majority sees the jury insufficiently apprised of the state of appellant’s mind at the time of the crucial incident.

Even the most fastidious review of the record reveals substantial evidence about the threats directed to appellant preceding the alleged criminal incident. Thus, appellant herself testified to the jurors that she received threatening phone calls from the complainant (Record at 127, 129, 132), and further testified that on the morning of the incident her sister, with whom she lived (Record at 75), received calls from complainant and a friend of complainant. (Record at 129, 156.)

Appellant’s sister in turn told the jury that on the day before the incident at least ten abusive and threatening phone calls were received at their apartment from complainant and her sister. Appellant’s sister testified that, as a result of these phone calls from complainant and her sister, she called the police. She was permitted to testify how the officer who responded answered one such call and had been cursed by complainant or her sister. (Record at 79.)

In addition, this witness — who lived with appellant — was permitted to testify that she had complained to the telephone company about these abusive phone calls from complainant and her sister. (Record at 80.) Finally, on the very morning of the alleged incident, appellant’s sister told the jury of a threatening phone call from complainant. (Record at 85.)

But, says the majority, the trial court erred in refusing to allow a defense witness (neither appellant nor her sister) to testify over objection as to “the substance” of a “conversation” this witness had had with the sister of complainant “about her relationship with Ms. McBride [the appellant].” (Record at 107.) Given the fact that the jury heard voluminous testimony about the hostile relationship that existed between complainant’s sister and appellant from their very own lips, it strikes me as patently unnecessary to remand the case now for a proffer from defense counsel as to what exactly this witness would have said about his conversation with complainant’s sister about her relationship with appellant.

The other ruling during this trial which so troubles the majority that a remand is ordered for a proffer by defendant is the refusal by the court to permit appellant to testify about a conversation she had over the phone with a friend of complainant. Again, given the evidence in this record of the number of threatening calls appellant received from complainant and her sister, as summarized above, this evidence was at best cumulative and therefore the ruling, if error, was surely harmless.

In sum, the majority writes a dissertation complete with charts concerning the relevance of communicated and uncommunicat-ed threats to the proof of self-defense generally in assault cases when the record in the instant assault case is overflowing with evidence of threats admitted by the trial court at the behest of the defense to show appellant’s apprehension of complainant and to justify her use of the stick in self-defense. The majority also plucks two isolated rulings by the trial court from the transcript of a ease fully and fairly tried on the issue of self-defense vel non (and justification for appellant’s possession of the stick) and requires further proceedings for defense proffers of a most speculative nature, so as to prolong the process of determination of guilt or innocence.

*660 I protest this misuse of judicial resources, and I dissent from the majority’s opinion. 3

. See Charles Dickens, Oliver Twist, Chapter 51.

. The brief was prepared by the Public Defender Service, noted for its thoroughness in presenting written argument and its willingness to write in detail and at length to ensure that its points on appeal are clearly understood. Its argument in this case consumes but six pages.

. The majority (op. at 657, note 30), terms the dissent as an effort to “brush aside” “significant evidentiary issues.” Anyone who takes the time to read the record will discover the evidentiary issues relied upon by the majority for its advisory opinion are wholly insignificant. Anyone who takes the time to read the dissent will discover that it does not brush aside the evidence but rather describes it in detail and at length so as to demonstrate the. remand is wholly inappropriate.