McClellan v. United States

FARRELL, Associate Judge,

concurring.

I join Judge Belson’s opinion for the court. The confrontation issue is a close one. .In the case of a key government witness like Smith, claimed to have proven his bias against McClellan by shooting at him a week before the -alleged murder, barring cross-examination of Smith about that act raises serious Sixth Amendment concerns. Even if the jurors no more than eyeballed Smith and listened to his voice as he admitted, denied, or equivocated about the shooting, this might have contributed to their sense that he was an unreliable accuser of McClellan. 1 Nevertheless, as Judge Belson demonstrates, the single dominant proof of Smith’s hostility, the shooting, was conceded. The prosecutor did not mince words, telling the jury in summation: “Wayne Smith shot at the defendant and his Mends a week before this murder in broad daylight.” Karlyles Spencer described Smith’s role in the shooting with particularity; the jury knew that Smith was awaiting trial for the shooting; and it further knew that he had “taken the Fifth” about it at this trial, cf. Bowles v. United States, 142 U.S.App. D.C. 26, 31-32, 439 F.2d 536, 541-42 (1970), despite the judge’s explanation that Smith had a right to — “he may” — assert the privilege. There is not the slightest reason to doubt that the jurors knew Smith had been a co-shooter at McClellan and his companions a week before the murder and factored that proof of hostility into their appraisal of his credibility.

The Supreme Court has said:

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.”

Delaware v. Van Arsdall, 475 U.S. 673, 680 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986) (emphasis added) (quoting Davis v. Alaska, 415 U.S. 308, 318 , 94 S.Ct. 1105, 1111 , 39 L.Ed.2d 347 (1974)). The test is whether “[a] reasonable jury might have received a significantly different impression of [the witness’s] credibility had [the defendant’s] counsel been permitted to pursue” the prohibited cross-examination. Id. (emphasis added). In every ease I know of that has found constitutional error in a restriction on cross-examination for bias, it is because the jury never learned a significant reason why the witness might have been hostile to the ac *555 cused. 2 That reason, ie., the motivation to testify falsely, would have enabled the jury to evaluate the assertion that the witness did testify falsely or at any rate should not be believed. But in this case the reason why Smith was hostile to McClellan barely counted. Appellant proffered no such reason beyond the one the jury already knew fully, Smith’s friendship with the victim Cole, who had exchanged angry words — including threats to kill — with McClellan outside the D.C. Armory earlier on September 5. Nor is it plausible to think Smith would have volunteered a reason on cross-examination. Far more likely is that he would have denied or equivocated about the shooting, denying he had been party to it at all or that he had intended to shoot McClellan. What mattered from the standpoint of bias, in short, was the fact of Smith’s hostility toward McClellan as demonstrated by the shooting itself. And the inference of that hostility was abundantly available to the jury from the information it had.

Of course, watching Smith equivocate or otherwise give demeanor evidence of his bias in reply to questions about the shooting could have added to the jury’s knowledge. But, like Judge Belson, I am not persuaded the jury might have received a “significantly different impression” of Smith given what it already knew about the shooting and from which it “could appropriately draw inferences relating to [his] reliability.” Van Arsdall, supra. Also, appellant was able to confront Smith fully about the fact that he was awaiting trial for the earlier shooting and about any benefit he hoped to get from the government by testifying. And McClellan cross-examined Smith over some 60 transcript pages about the events of the Cole slaying and about his close friendship with Cole since childhood.'

In these circumstances, to find constitutional error here, as Judge Ferren would, is to say that the prior shooting was so exceptional an indicator of Smith’s bias that any even incremental advantage McClellan might get from questioning him about it was required by the Confrontation Clause. But that is not the constitutional test, as I understand it, and so I agree with Judge Belson that appellant’s right to confront Smith was not violated,

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The prosecutor’s closing argument in regard to Ayanna Grant was a low blow. His assertion that only “fear because she knew who did it and saw that face” kept Grant from identifying appellant expressly was unsupported by evidence and invited the jury to assume as evidence the ultimate fact to be proven: that appellant killed Cole in Grant’s presence, terrifying her. The impropriety was only mitigated, not excused, by the fact that the prosecutor did not also imply that he had evidence that McClellan had threatened the witness. But I agree that this impropriety does not justify reversal. The government’s case was not weak. McClellan, having apparently angered Cole enough at the Armory to cause Cole to shoot at him, had a strong motive to shoot Cole in retaliation. An eyewitness to the killing, Horne, saw the shooter (whom he could not identify) leave the scene and head up R Street toward Fifth Street; another witness, Ford, who knew McClellan, saw him running along R Street toward Fifth Street holding what resembled a .38 caliber pistol seconds after gunshots *556 were heard from the direction of the killing. Cole was shot with a .38 caliber handgun. Grant, even discounting the prosecutor’s embellishment of her testimony, stated that Cole’s shooter wore a shirt matching the one McClellan had worn minutes earlier when Grant saw Cole and McClellan exchange words in front of Dunbar High School. And Smith, credibility warts and all, identified McClellan as the killer. Recognizing also that defense counsel was able to correct the record about Grant’s testimony in his closing argument, I agree that the prosecutor’s misstatements were not prejudicial enough to warrant reversal.

. On the other hand, defense counsel’s suggestion at one point below that from hearing Smith cross-examined about the earlier shooting the jury might have entertained the reasonable possibility that he killed Cole is far-fetched.

. See, e.g., Van Arsdall, 475 U.S. at 679 , 106 S.Ct. at 1435 ; Davis v. Alaska, supra; Jenkins v. United States, 617 A.2d 529 (D.C.1992); Brown v. United States, 683 A.2d 118 (D.C.1996); Johnson v. United States, 418 A.2d 136 (D.C.1980); Springer v. United States, 388 A.2d 846 (D.C.1978); Webb v. United States, 388 A.2d 857 (D.C.1978); Henry v. Speekard, 22 F.3d 1209 (2d Cir.), cert. denied, 513 U.S. 1029 , 115 S.Ct. 606 , 130 L.Ed.2d 517 (1994); Wright v. Dallman, 999 F.2d 174 (6th Cir.1993); United States v. Lankford, 955 F.2d 1545 (11th Cir.1992); United States v. DeSoto, 950 F.2d 626 (10th Cir.1991); United States v. Jones, 766 F.2d 412 (9th Cir.1985); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.1984); United States v. Mayer, 556 F.2d 245, 247 (5th Cir.1977); Merritt v. People, 842 P.2d 162 (Colo.1992) (en banc); People v. Wilkerson, 87 Ill.2d 151 , 57 Ill.Dec. 628 , 429 N.E.2d 526 (1981); Haeger v. State, 181 Ind.App. 5 , 390 N.E.2d 239 (1979); State v. Brady, 381 So.2d 819 (La.1980); State v. Senegal, 316 So.2d 124 (La.1975); State v. Hoard, 180 W.Va. 111, 375 S.E.2d 582 (1988). These cases are to be distinguished from those in which confrontation error was found based on curtailment of cross-examination about prior bad acts of the witness reflecting on his character trait of veracity. E.g., Lawrence v. United States, 482 A.2d 374 (D.C.1984).