Travers v. United States

GLICKMAN, Associate Judge,

dissenting:

“An evidentiary ruling by a trial judge on the relevancy of a particular item is a highly discretionary decision that will be upset on appeal only upon a showing of grave abuse.”1 In my view, appellant has not made such a showing with respect to the rulings in this case precluding him from cross-examining Ms. Bethel about prior occasions on which she allegedly urged someone other than Mr. Scott to attack another family member, and from testifying to his own awareness of such incidents. On the contrary, I think the trial judge reasonably concluded, after a full and deliberate inquiry, that the proffered evidence lacked legitimate probative value, and thus its exclusion was well within the ambit of the judge’s discretion.

Appellant argued that evidence of Ms. Bethel’s prior incitements to violence and his awareness of that conduct was admissi*642ble -for two reasons: (1) to show the likelihood that Ms. Bethel actually did urge Mr. .Scott to “get” appellant (which She denied); and (2) to show the reasonableness of appellant’s perception that hé needed to defend himself from Mr. Scott. The judge correctly rejected the first of these rationales as an improper propensity argument, one foreclosed by the general rule that a witness’s prior ■ acts of violence (or other wrongful acts) are not admissible to prove that the witness aeted in .conformity with such conduct on a later occasion.2

The judge recognized the potential applicability of the second rationale. He stated, accurately, that “[sjpecific acts of violence by the victim that are known to the defendant can bear on the defendant’s reasonable belief that he needed to act in self-defense.” This is so, in the typical case, because the victim whose prior, violent acts were known to the defendant is the same person against whom the defendant claims to have needed to use force to defend himself.3

As the judge realized, however, this case is atypical because appellant’s self-defense claim did not depend on the reasonableness of his fear of Ms. Bethel. He was not defending himself against her, nor did he claim to have been afraid that she was going to injure him. Appellant claims to have struck Ms. Bethel not in legitimate self-defense, but by accident. The alleged assailant against whom appellant claims he was defending himself was Mr. Scott. But appellant did not proffer that Ms. Bethel previously had urged Mr. Scott to attack anyone, or that Mr. Scott was even peripherally involved in her prior efforts to incite violence. Appellant also failed to proffer that any of the past incidents resulted in physical violence, or that they occurred under reasonably comparable circumstances. It therefore was difficult to see from appellant’s proffer how his awareness of Ms. Bethel’s prior efforts to incite violence bore on the reasonableness of his fear of Mr. Scott.

Appropriately, then, the trial judge examined with counsel the question of the relevance' of appellant’s awareness of Ms. Bethel’s' prior acts of incitement. Two possible theories of relevance were explored. First, the judge inquired whether Ms. Bethel’s alleged attempts to provoke violence in the past actually led to violence or not, since that might bear on whether it was reasonable for-appellant to believe Mr. Scott really would attack him “based on her say so.” The measure of relevance on this theory, the judge reasoned, depended “not [on] whether she has made the request of other people in the past .... [but on] whether people have followed through on her requests and actually attacked people in the past based on her request.” But appellant’s counsel did not know whether Ms. Bethel’s words ever had precipitated any actual violence, and while she offered to inquire of appellant, she never augmented her proffer with the information the judge sought. The prosecutor argued that even if appellant knew some other person had attacked someone else at Ms. Bethel’s behest on a prior occasion, that said nothing about whether it was reasonable for appellant to think'Mr. Scott was willing to attack him on this occasion. The prosecutor’s argument ultimately persuaded the judge.

Alternatively, the judge considered appellant’s argument that his knowledge of *643Ms. Bethel’s prior efforts to incite violence bore on whether he reasonably understood that she had asked Mr. Scott to attack him. The judge inquired whether there was any ambiguity in the words appellant allegedly heard Ms. Bethel say to Mr. Scott (i.e., “get him”), and appellant’s counsel conceded, “I don’t think thát there is ambiguity.” Ultimately, the judge -reasoned that, since appellant would testify he actually heard Ms. Bethel tell Mr. Scott to attack him, her alleged efforts to incite violence on earlier occasions were not relevant to his understanding of her words:

[T]he fact that he will testify that he heard her say that, I am not sure that it is really relevant that she has asked people to do it in the past because now he is not wondering, I wonder whether she really told Scott to attack me or not, whether -I should believe this person who just told me that. He does not have to engage in that because he will testify that he actually heard that conversation.

Appellant’s counsel did not dispute the logic of this reasoning or retract the concession that Ms. Bethel’s words were unambiguous. For its part, the government did not deny the threatening meaning of the words “get him”; it disputed only appellant’s claim that Ms. Bethel uttered those words.

In further colloquy, the prosecutor focused on another deficiency of appellant’s proffer — the absence of any information in it as to when, and under what circumstances, Ms. Bethel supposedly told people to attack two of her family members. Appellant, who never claimed to have witnessed the prior incidents himself, did not proffer how he had become aware of them or how much (or little) he knew about the incidénts. As the prosecutor pointed out, the actions might have'taken place in the distant past, and under circumstances vastly different from those confronting appellant when he entered Ms. Bethel’s bedroom in the middle of the night. Without more detail, how could a jury (properly) attach significance to appellant’s mere awareness that Ms. Bethel, for unknown reasons at some unspecified times, had encouraged someone other than Mr. Scott to strike a member of her family other than appellant? The trial judge noted that “the circumstances of that other occasion are going to be significant,” but appéllant did not amplify his proffer in response to this point.

In my opinion, given the thoroughness of the judge’s inquiry and skimpiness of appellant’s proffer, the judge had ample grounds to find that appellant’s mere awareness of Ms. Bethel’s prior attempts to provoke attacks did not “conduee[] in any reasonable degree to establish”4 the reasonableness of his resort to violence in professed self-defense. ■ The legitimate probative value of the proffered testimony was notional and slight at best.5

I fully appreciate that a trial judge must be guided by the principle that “[t]he pro-bativity threshold for purposes of admissi*644bility 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.’”6 Nonetheless, as this court has emphasized, “[t]he trial court enjoys particularly broad discretion in determining the relevance of a piece of evidence because the inquiry is fact-specific and proceeds under a flexible standard.”7 This standard requires that the trial judge be given considerable leeway to evaluate the relevance of proffered evidence and exclude it if he reasonably finds it lacking in legitimate probative value — even if appellate judges, reviewing the proceeding in the quiet of their chambers, are able to discern some minimal probativity that escaped the trial judge’s notice.8

Thus, our task is to review the trial judge’s rulings for abuse of discretion. “This most deferential standard of review allows the trial judge a limited right to be wrong. It also requires the appellate court to assure itself only that certain indi-cia of rationality and fairness have been met.”9 More specifically, we have said that “we apply a five-part test in which we consider: (1) whether the decision at issue was committed to the trial court’s discretion; (2) whether the trial court recognized that it had discretion and whether it purported to exercise it; (3) whether the record reveals sufficient facts upon which the trial court’s determination was based; (4) whether the trial court failed to consider a relevant factor or relied upon an improper factor, and whether the reasons given reasonably support the conclusion; and (5) whether the error, if any, was harmless.”10 Applying this test here, I think the record shows that the trial judge easily passed it — after thorough inquiry and consideration of the applicable rules of evidence, the judge reasonably concluded that the vague evidence appellant proffered lacked legitimate probative value. Even if we might demur, in my estimation the evidence as proffered was of marginal relevance at best. Accordingly, I cannot agree that the judge abused his discretion (let alone that he “gravely” abused it), and so I respectfully dissent.

. See Harris v. United States, 618 A.2d 140, 144 (D.C.1992); see also Fed.R.Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”).

. See, e.g., Harris, 618 A.2d at 143.

. Dockery v. United States, 746 A.2d 303, 307 (D.C.2000) (quoting Home Ins. Co. v. Weide, 78 U.S. 438, 440, 11 Wall. 438, 20 L.Ed. 197 (1870)).

. Moreover, a?, the trial judge recognized, there was the risk that the jury would be inclined to misuse the proffered testimony as propensity evidence helping to prove that Ms. Bethel likely did command Mr. Scott to "get” appellant. Although the judge did not base his rulings on a Rule 403 determination that the minimal probative value of the proffered evidence was substantially outweighed by the-danger of unfair prejudice arising from such potential misuse, see (William) Johnson v. United States, 683 A.2d 1087, 1099 (D.C.1996) (en banc), the need to guard against this danger further supported the reasonableness of the judge’s rulings.

I think it is worth observing that trial judges not infrequently declare evidence to be *644irrelevant when, I infer, they really mean that the slight probative value of the evidence is substantially outweighed by the risk of unfair prejudice or other considerations justifying exclusion. Often, I suspect, everyone in the courtroom understands that this Rule 403 balancing is the true rationale for the judge’s ruling, for which a declaration of irrelevance is simply shorthand. For purposes of appellate review, it would be best, when this is so, for judges to articulate their reasons for excluding evidence more precisely.

. 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)).

. Richardson v. United States, 98 A.3d 178, 186 (D.C.2014); see also (William) Johnson, 683 A.2d at 1095 (recognizing that the evaluation of evidence for relevance "is quintessentially a discretionary function of the trial court, and we owe a great deal of deference to its decision”).

. Cf. Price v. United States, 697 A.2d 808, 818 (D.C.1997) (holding that trial court had discretion to exclude evidence having, "at best,” only "marginal relevance”).

. United States v. Felder, 548 A.2d 57, 62 (D.C.1988) (emphasis in original) (internal quotation marks omitted); see also In re L.C., 92 A.3d at 299 ("[T]o say the trial court did not abuse its discretion is not to say the court exercised its discretion properly.”) (emphasis in original); (James) Johnson v. United States, 398 A.2d 354, 363 (D.C.1979) ("An exercise of discretion may be erroneous but still be legal and free from abuse.”).

. Richardson, 98 A.3d at 186 (internal quotation marks, brackets, and ellipses omitted).