dissenting:
During the course of a trial where appellant raised the defense of self-defense to a charge of second-degree murder while armed, the government announced its intention to cross-examine the accused about circumstances surrounding an earlier arrest for assault with a dangerous weapon. The government’s explicit position was that this evidence was admissible in parallel fashion as would be so in instances of prior bad acts attributable to the decedent. The court accepted the prosecutor’s rationale and indicated that such examination would be allowed.
It was also clear that if appellant elected to testify, she would have been questioned by the government regarding earlier statements inconsistent with her purported trial testimony, as well as two prior criminal convictions.
Appellant chose not to testify. Even from the vantage point of hindsight, the reasons for appellant’s decision not to testify are not precisely discernible. Aside from appellant’s own evaluation of the strength or weakness of the government’s evidence, there were also factors of impeachment on the basis of criminal convictions and earlier inconsistent statements. Lastly, there was the judge’s ruling as to her prior violent behavior. I cannot conclude that this last factor was the sole reason for appellant not testifying. To go further and hold that this nontestimony substantially affected the fairness of the trial and, therefore, consti*476tuted reversible error is, in my view, unsound.
A second issue which is presented involves appellant’s proffer of the grand jury testimony of two witnesses — claimed to be unavailable — to an unrelated homicide as bearing on the decedent’s prior violent behavior. The purported identification of the decedent as a wrongdoer in the other death was unclear. One of the two witnesses testified before the grand jury, “Well, yeah I identified him [the decedent here] in the photo but I wasn’t really sure.” Later the same person failed to make an identification at a lineup. The second witness was similarly uncertain.
The trial court accepted the premise that evidence of prior assaultive behavior of the decedent was admissible. The problem in this instance was, at a minimum, whether the evidence, in the form that it was available (grand jury minutes and police reports), was presentable to the trial jury in a manner that would not be confusing.
THE COURT: We are not going to have [to go] to trial here to determine whether [decedent] was involved in as-saultive behavior in the past. If there’s evidence that he was, it’s admissible. If we have to hear all of these witnesses and go through a trial, in effect, to determine whether he was, then it’s not going to be admitted.
I agree that the witness’ choice of words in making an identification normally goes to the weight of the evidence. Cross-examination will generally resolve such ambiguities. In this instance, there were no witnesses to examine. Given the clear prospect of confusion which was evoked, the discretion to exclude such evidence is entrusted to the trial judge. The majority’s solution, ante at 475, — “The government, of course, has a right to discredit it [grand jury minutes] before the jury through evidence of the sort the trial court relied on to keep the testimony out of the case” — is no answer. Rather, it simply encourages more confusion.
I see no abuse of discretion and certainly not reversible error stemming from the exclusion of an uncertain proffer on a cumulative subject.
Accordingly I dissent.