in "shod foot assault,” appellant stomped on victim’s face with both feet; facial injuries included broken nose and sinus bone
How later courts described this case
- in "shod foot assault,” appellant stomped on victim’s face with both feet; facial injuries included broken nose and sinus bone
- victim who was stomped on and repeatedly punched in her face and stabbed in her side suffered fractures to her nose and sinus bones and a perforation to her kidney, requiring emergency surgery and pain medication for her “very painful” injuries
- victim did not describe pain as extreme, but a reasonable juror could infer from the nature of the injuries and the victim’s reaction to them that the pain was extreme
- “[assuming, without deciding, that the [contested admission] was an abuse of discretion, the error was nonetheless harmless”
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring:
I concur in the judgment and join the court’s opinion. Nevertheless, I continue to adhere to the views I expressed in my separate opinion in Daniels v. United States, 613 A.2d 342, 349-50 (D.C.1992). A proffer is a statement of counsel. A statement of counsel is not evidence. Therefore, a proffer is not and cannot be “clear and convincing evidence.”
The explanation that a prosecutor’s proffer as to what the evidence will show is itself clear and convincing evidence if it is credited reminds me of a dog chasing its own tail. Evidence is credited because it is “convincing”; if it is not convincing, the trier of fact will not believe it. Our current doctrine, on the other hand, supposes that a proffer is convincing (and clear too) “if believed.” Maj. op. at 457 (quoting Daniels, 613 A.2d at 347 ). Apparently, as a very able colleague told me about another case soon after I joined this court, “common sense has nothing to do with it.”
I was of the opinion twelve years ago, when Daniels was decided, that we should conform our jurisprudence to Huddleston v. United States, 485 U.S. 681, 685 , 108 S.Ct. 1496 , 99 L.Ed.2d 771 (1988), and that we should stop pretending that a proffer is clear and convincing evidence when it obviously is not. Nothing in the intervening twelve years has persuaded me that our illogical handling of this issue is superior to the straightforward approach adopted by all nine Justices in Huddleston .