Brown v. United States

SCHWELB, Associate Judge,

dissenting:

My colleagues in the majority acknowledge that the trial judge erred by peremptorily declining to permit Ms. Brown’s attorney to conduct a redirect examination of the sole defense witness with respect to matters raised for the first time on cross-examination. They hold, however, that the plain error standard applies, that Ms. Brown has not satisfied that standard, and that her conviction must therefore be affirmed. I cannot agree with the majority that this is an appropriate case for plain error review. Instead, I would apply conventional harmless error analysis and reverse Ms. Brown’s conviction.

I.

In this jurisdiction, as in others, reversals for plain error are exceedingly rare. *1143In order to prevail upon a ground not properly preserved in the trial court, a criminal defendant must show both that the trial judge’s error was “plain,” i.e., “obvious,” and that a clear miscarriage of justice resulted. See, e.g., United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc). This is a most exacting standard, and in my experience it is almost never satisfied.1 Therefore, as a practical matter, once we decide to invoke the plain error doctrine, the defendant’s appeal is almost certainly doomed, and her dreams of reversal evaporate into the “eerie atmosphere of never-never land.” Meredith v. Fair, 298 F.2d 696, 701 (5th Cir.1962).

There are sound reasons for our reluctance to reverse a judgment for plain error. “The purpose of requiring a specific objection is to enable the prosecution to respond to any contentions raised and to make it possible for the trial judge to correct the situation without jettisoning the trial.” Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992). Further,

[ljitigants should not be permitted to keep some of their objections in then-hip pockets and to disclose them only to the appellate tribunal; “[o]ne cannot take his chance on a favorable verdict, reserving a right to impeach it if it happens to go the other way.” Palmer Constr. Co. v. Patouillet, 42 A.2d 273, 274 (D.C.1945).

Id. In the kind of situation for which it was designed, the plain error rule should be firmly enforced in the interest of finahty and the orderly administration of justice.

We ought not to forget, however, that it is the defendant and not his or her attorney who is likely to go to prison when the plain error doctrine precludes plenary appellate consideration of what might otherwise be a meritorious defense contention. Criminal defense attorneys, like the rest of us, are mere mortals, and we should not and do not require barristerial perfection in order to preserve a point for appeal. If counsel has asserted the underlying claim at trial, the defendant is not restricted on appeal to the precise arguments made in the trial court. See, e.g., Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992); Salmon v. United States, 719 A.2d 949, 953 (D.C.1997). Moreover, we have avoided applying the plain error rule in a mechanical or wooden manner, and we have relaxed the standard where an issue has arisen unexpectedly and where it would be unreasonable to expect counsel to respond with pristine accuracy to an unforeseeable denouement. See, e.g., Salmon, supra, 719 A.2d at 953; Duvall v. United States, 676 A.2d 448, 452 n. 5 (D.C.1996).

In my opinion, this appeal does not present the type of situation for which the plain error standard was designed or to which it ought to be applied. For the reasons set forth below, I would hold that Ms. Brown’s claim, namely, that her counsel was denied the right to question Troy Harris on redirect examination regarding issues raised by the prosecution on cross, was adequately preserved, and that this claim ought to be evaluated on its merits.

*1144II.

At Ms. Brown’s trial, Troy Harris was the sole witness called to testify for the defense. On direct examination, Mr. Harris testified, inter alia, that Officer Cabillo was acting in an arrogant and truculent manner during his contretemps with Ms. Brown and her friends, that Cabillo was the aggressor in his physical altercation with Ms. Brown, and that Ms. Brown never swung at him. The case thus boiled down to a credibility contest between Mr. Harris and the police. On cross-examination, Mr. Harris acknowledged that he was the boyfriend of Ms. Brown’s sister, that he was in court to help both sisters, and that he did not want anything to happen to either of them.

As any trial lawyer knows, the norm upon completion of cross-examination of a witness is for the attorney who called the witness to proceed to redirect examination. In this case, however, that is not what happened. As soon as the prosecutor completed his cross-examination of Mr. Harris, the judge made it crystal clear — not once but several times — that he was not disposed to permit redirect examination and that Mr. Harris’ stint on the witness stand was at an end. Without inquiring whether defense counsel had anything further, the judge addressed the witness:

Thank you. You may step down. Obviously astonished, Ms. Brown’s attorney responded:

Actually, I have a brief redirect.

However, it was not to be, for the judge’s rejoinder, directed first to defense counsel, then to the witness, and then to counsel again, was as unambiguous as it was dismissive:

Call your next witness.

Step down.

Call your next witness.2

The majority holds, on this record, that Ms. Brown’s attorney was required to make a proffer regarding the content of his proposed redirect examination. But by the time that any such proffer could have been made, the judge had already twice ordered Mr. Harris to step down and twice ordered counsel to call his next witness. The judge’s ruling had been as emphatic as it was cryptic. Any further argument by counsel would have constituted disobedience of the judge’s directives. The judge had shown no interest in the subject matter of any proposed redirect examination, and his order that Mr. Harris step down and that counsel call his next witness was unconditional. In my opinion, a fair reading of the exchange between court and counsel demonstrates a high probability that a proffer would have been futile and that it would probably have antagonized the judge, who in this case was the trier of fact.

Moreover, this was not simply a situation in which the judge had sustained or overruled an objection which counsel could have asked him to reconsider. The judge had twice ordered counsel to call his next witness and twice ordered the witness to step down. Under these circumstances, Ms. Brown’s attorney might reasonably have apprehended that refusal to do what the judge had told him and his witness to do would have been trifling with the possibility of contempt.

This is not the kind of situation in which a criminal defendant should be relegated to a quixotic attempt to secure reversal on the less than friendly terrain of plain error review. The basic claim that Ms. Brown makes on appeal — namely, that her attorney was entitled to conduct a redirect examination of the sole defense witness — was preserved in the trial court. In fact, defense counsel’s response to the, judge’s order to the witness to step down — “Actually, I have a brief redirect” — was at least *1145arguably an objection in all but name.3 Although Ms. Brown’s attorney did not present at trial the precise argument that he now makes — namely, that he wished to “dispel” the bias evidence adduced by the government on cross-examination — he had very little opportunity to do so,4 and he could have made a proffer of his proposed redirect examination only by disregarding the judge’s repeated insistence that Mr. Harris step down and that counsel call his next witness. In my opinion, we cannot fairly say that Ms. Brown’s attorney failed to do anything that a reasonably competent attorney would have done under the same circumstances.5

III.

All members of the division evidently agree that the trial judge’s refusal to permit redirect examination was erroneous. As the majority'expressly acknowledges, “there can be said to be a right to redirect provided counsel proposes to deal with matters which first came up in cross-examination.” Maj. op. at 1140. Further, to quote the majority, “[t]he trial judge’s response to the defense counsel’s ... statement that [counsel] had a brief redirect— that the witness should step down and that counsel should call his next witness-was inappropriate. The judge should have sought or at least awaited a proffer regarding redirect.” Id. at 1141. My colleagues thus recognize that the judge erred, but they affirm because, in their view, the plain error standard applies. As previously noted, however, I disagree with the majority’s identification of plain error as the proper standard of review.

The remaining question is whether, assuming that the point was properly preserved, the judge’s error was prejudicial or harmless. See, e.g., Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (articulating harmless error standard). In my view, this is rather a close call. Nevertheless, on balance, I vote to reverse Ms. Brown’s conviction.

From the perspective of the trier of fact, the dispositive question in this case was: Who should be believed? If Mr. Harris was telling the truth regarding Ms. Brown’s part in the affray with Officer Cabillo, then Ms. Brown was not guilty and ought to have been acquitted. Indeed, even if the judge was unsure where the truth lay but entertained a reasonable doubt regarding the police version of the encounter, he was required to find the defendant not guilty. It was thus imperative that the trier of fact make a fully informed assessment of the credibility of the sole defense witness, Troy Harris.

*1146But the judge could not make such an informed assessment on the truncated record before him. On cross-examination, the prosecutor had sought to depict Mr. Harris as a biased witness — as a partisan who wanted Ms. Brown to win and who would therefore be willing to lie in order to save her. In response, the defense was entitled to attempt to show, on redirect examination, that regardless of his friendship with Ms. Brown and her sister, Mr. Harris was a man who told the truth. The determination whether Mr. Harris was credible could well turn on his demeanor on redirect examination when confronting the imputation of partisanship, bias and, implicitly, mendacity. The judge’s assessment of Mr., Harris’ truthfulness could not be a fully informed one until Ms. Brown’s counsel had an opportunity to question the witness on the matters raised on cross. As the record stood when the judge found Ms. Brown guilty, the prosecution had been permitted to interrogate Mr. Harris on issues relating to his bias, but the defense had not.

Redirect examination can make a great deal of difference. One of Professor Wig-more’s colorful illustrations tells the tale.6 If we were to apply Judge Irving Goldberg’s tongue-in-cheek test for harmless error,7 Ms. Brown would win in a cakewalk, for the error was not minuscule and the proof of guilt was hardly gargan*1147tuan. Invoking, instead, the more conventional standard enunciated in Kotteakos, supra, 328 U.S. at 765, 66 S.Ct. 1239, I cannot say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” I would therefore reverse Ms. Brown’s conviction.

. Unless my memory fails me, I have never voted, in more than twelve and a half years on the appellate bench, to reverse a criminal conviction for plain error. But see Coreas v. United States, 565 A.2d 594, 600-06 (D.C.1989) (reversing conviction for improper prosecutorial argument despite the lack of a timely objection); cf. id. at 606 et seq. (Schwelb, J., dissenting); see also District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182-86 (D.C.1993) (reversing judgment in civil case notwithstanding the fact that error was invited). There have been very few plain error reversals during that time. If I believed that the plain error standard applied to this appeal, I too would vote to affirm Ms. Brown’s conviction.

. Although there is a period in the transcript at the conclusion of each of these commands, I believe that exclamation points would be more in keeping with the obvious fact that the speaker, a judge, was giving orders which counsel and the witness were obliged to obey.

. If counsel had said: "Objection, I have a brief redirect,” then application of the plain error standard would surely be implausible. I do not believe that counsel’s failure to use the word "objection” should change the result when the import of his words was to object to the judge's directive.

. Moreover, given the content of the prosecutor’s cross-examination of Mr. Harris, it could reasonably be anticipated that defense counsel would attempt to counteract the imputation of bias. We have held that where the proposed line of questioning on redirect examination is apparent, no proffer is required. See McBride v. United States, 441 A.2d 644, 656-57 (D.C.1982).

. None of the cases cited by the majority requiring counsel to make a proffer involved circumstances comparable to those presented here. In McBride, supra note 3, for example, we stated that a proffer of a witness’ expected testimony is ordinarily required where the trial judge has sustained an objection to a particular question or line of inquiry. 441 A.2d at 656. That situation differs materially from the one presented here, for in this case the judge precluded counsel from asking any question on redirect examination. Moreover, a proffer by defense counsel in McBride would not have constituted disobedience of the judge’s directives; the witness had not been told to "step down” and counsel had not been ordered to call his next witness. Even so, we recognized in McBride that ”[t]he courts .. . have not enforced the proffer requirement in a rigid fashion,” id., and we rejected the government’s claim that the plain error standard should be applied. Id. at 655. McBride therefore provides scant support for the government’s position.

. Maurice Healy, Esq., The Old Munster Circuit 72 (1939): Only one art is more difficult [than cross-examination]; that is, the art of re-examination. Herein the object of the advocate is to overcome the effect of a destructive cross-examination. This object is attained by a miracle; if you can’t perform them, you had much better allow your witness to go out of the box without further question. I once heard Sir Edward Carson perform that miracle in this country, shortly after the war. His client had been grievously defamed; the defendants had justified, and in furtherance of their defense endeavoured to shew that he was something of an adventurer, living entirely upon his wife’s fortune. Carson’s case was that there is every difference in the world between the man who exploits his rich wife and the man who, having married a rich wife, allows her to help him. The plaintiff had been handled very severely; his wife was asked on the threshold of the cross-examination: “When did your husband last do a day's work?” and she had to answer that she didn’t know. Then began a terrific bombardment. “Your husband is wearing a very handsome astrachan coat; where did he get it?” "I gave it to him.” "Who paid for the Rolls Royce you arrived in this morning?” "I did.” "How much money did he put towards the purchase of your mansion in the country?” "Nothing.” And so on, through a minute examination of all the daily expenses of the married couple. Cross-examining counsel sat down with a very satisfied expression. Carson slowly lifted up his long, lean body, smoothed his silk gown, turned his melancholy face towards the lady, and said: "Mrs. X.” He paused a moment to let the musical voice obtain its effect. Then in a sad, weary tone, as though the whole matter were very painful to him, "Mrs. X,” he asked, "were you in love with your husband?” In the circumstances, no answer but one was possible, and therein lay the skill of the advocate. "I was,” she replied, faintly. Carson looked at the jury for a moment; then lifting his eyes towards her he asked gently: "Is there any one of these things about which my friend has asked you which you regret?” Once again, only one answer was possible. "No,” she replied. Carson paused for a moment, he appeared to be thinking. "Mrs. X,” he said, "if the opportunity arose again today, would you be proud and happy to do it all again?” "I would,” she cried, lifted by her advocate to enthusiasm. "Thank-ye, Mrs. X,” said Carson, and sat down. The jury gave his client £5000, and it was those three questions that won the verdict.

6 John H. Wigmore, Wigmore on Evidence § 1896, at 739-40 (Chadbourn rev. ed.1976). It may be that a "miracle” such as Sir Edward Carson’s would not have been forthcoming in this case, but able counsel for Ms. Brown might well have been able to use redirect examination to show that there was a reasonable doubt of his client’s guilt.

. The infusion of "harmlessness” into error must be the exception, and the doctrine must be sparingly employed. A minuscule error must coalesce with gargantuan guilt, even where the accused displays an imagination of Pantagruelian dimensions.

Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); see also Clark v. United States, 593 A.2d 186, 192-93 n. 8 (D.C.1991) (quoting Chapman ).