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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-CM-187


                            KEVIN GREEN, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.


                          Appeal from the Superior Court
                           of the District of Columbia
                                 (DVM-1962-15)

                           (Hon. Zoe Bush, Trial Judge)

(Submitted May 18, 2017                                    Decided June 13, 2019)

      Rupa Puttagunta for appellant.

       Anne Y. Park, Assistant United States Attorney, with whom Channing D.
Phillips, then United States Attorney, and Elizabeth Trosman, Elizabeth H.
Danello, and Brittany Keil, Assistant United States Attorneys, were on the brief,
for appellee.

      Before GLICKMAN and EASTERLY, Associate Judges, and STEADMAN, Senior
Judge.
                                          2

      EASTERLY, Associate Judge: Kevin Green appeals from his conviction after

a bench trial for simple assault 1 following an altercation he had with Krystal

Walker, a former romantic partner and the mother of his child. We focus on his

claim that his Sixth Amendment right to confront the witnesses against him was

violated when the trial court denied him the opportunity to recross-examine Ms.

Walker after the government, on redirect and at the trial court’s invitation, played a

recording of Ms. Walker’s call to 911 and moved it into evidence. Because the

recording contained new, material information in this she-said-he-said case—

where the issue was whether the government disproved Mr. Green’s claim of self-

defense by establishing that he was the first aggressor or used excessive force—we

hold that Mr. Green’s constitutional right was violated and that this violation was

not harmless beyond a reasonable doubt. Accordingly, we reverse.



                       I.     Facts and Procedural History



      The prosecution theory was that Mr. Green attacked Ms. Walker while she

was packing to move out of their shared apartment. The defense theory was that

Ms. Walker incurred her injuries when she attacked Mr. Green and he tried to fend



      1
          D.C. Code § 22-404(a)(1) (2013 Supp.).
                                         3

her off. The government called two witnesses: the officer who responded to the

apartment after the incident, and Ms. Walker, who testified that Mr. Green had

escalated a verbal altercation into a physical one by pushing her into walls (in one

instance with enough force to leave a hole) and throwing her against a kitchen

countertop. During Ms. Walker’s direct examination, the government made no

mention of her call to 911, did not identify it as an exhibit, and did not seek to

move the recording into evidence.



      On cross-examination, defense counsel sought to demonstrate that Ms.

Walker’s account of the incident was subject to question. Specifically, defense

counsel sought to elicit testimony from Ms. Walker about certain statements that

she had made when she called the police. When Ms. Walker—who acknowledged

that she might be confusing this incident with another and was uncertain about the

sequence of events—informed counsel that she did not remember what she had

told the 911 operator, counsel refreshed her recollection with snippets of the

recording.2 Ms. Walker then testified about what she had told the police over the



      2
         On more than one occasion the court noted that it could not hear the
recording, but there was no need for the court to hear it in light of its limited
function as a memory aid for the witness. 1 MCCORMICK ON EVID. § 9 (7th ed.)
(explaining that items “used to refresh are not substantive evidence that can be
used to support a finding of fact. They are merely memory joggers or aids”);
                                                                   (continued…)
                                           4

phone. Counsel did this three times. 3 Counsel never impeached Ms. Walker

directly with the recording.



      Thereafter, the trial court invited the government to move the full 911

recording into evidence, which the government did during its redirect of Ms.

Walker. 4 Both before and after the call was played, 5 defense counsel repeatedly




(…continued)
United States v. Weller, 238 F.3d 1215, 1221 (10th Cir. 2001) (“[A]nything may be
used to refresh a witness’[s] recollection, even inadmissible evidence.”).
      3
          Counsel elicited testimony from Ms. Walker that she had told the 911
operator: (1) “I never touched him,” which contradicted her testimony at trial that
she had “tussle[d]” with Mr. Green but only in self-defense; (2) that Mr. Green had
a history of aggression towards the police, information that counsel suggested Ms.
Walker conveyed to bias the police against Mr. Green; and (3) that toward the end
of the call, “he [Mr. Green] just left out,” even though she had testified at trial that
Mr. Green was out on the sidewalk while she was on the phone with the 911
operator and that she was yelling at him from the window of their third-floor
apartment.
      4
          The court and counsel had a lengthy discussion about whether the
recording was admissible under the rule of completeness and whether the
statements on the tape were admissible under exceptions to the rule against hearsay
for present sense impressions and excited utterances. See note 12 infra. In
addition to arguing that the recording was inadmissible, counsel at one point
offered to try to reach a stipulation with the government to obviate the admission
of the full recording, but the court declined the offer, stating, “That’s awfully
generous of you. I still want to hear the tape.”
      5
         The court admitted the first 3 minutes of the call but, for reasons that are
not clear, excluded the final 10 seconds.
                                          5

asked the court to permit recross-examination of Ms. Walker. 6 The trial court

rejected these requests.    The only statement the court made in the way of

explanation came after counsel’s last request for recross:

      I heard it for the first time. You didn’t. You had the tape. You played what
      you wanted to play on the tape. You asked her about what you wanted to
      play of the tape. And I haven’t heard anything so far that would give me any
      reason to allow you to recross the witness.


                                  II.    Analysis



      A foundation of our adversarial process is the ability of both parties to

present, and challenge, live witnesses with personal knowledge of the events or

issues in question. In criminal cases, a defendant’s right to confront the witnesses

against him is protected by the Sixth Amendment. U.S. CONST. amend. VI.

Generally, this right is satisfied if defense counsel is given the opportunity to

cross-examine the government’s witnesses. See Guzman v. United States, 769

A.2d 785, 790 (D.C. 2001); accord Delaware v. Van Arsdall, 475 U.S. 673, 678

(1986); Davis v. Alaska, 415 U.S. 308, 315–16 (1974).



      6
          Earlier in the trial, when the government introduced new evidence during
its redirect examination of a police officer—a photograph of Mr. Green on the day
of the incident showing a scratch on his chin—the court told defense counsel “I
don’t do recross.” The court then reconsidered and allowed defense counsel to
recross the witness about the photograph.
                                          6

      The prosecution, which bears the burden of proof, see In re Winship, 397

U.S. 358, 364 (1970); Conley v. United States, 79 A.3d 270, 278 (D.C. 2013),

generally presents its affirmative case through direct examination of its witnesses.

1 MCCORMICK ON EVID. § 32 (7th ed.) (explaining that “an attorney who calls a

witness is normally required to elicit on the witness’s first direct examination all

the testimony that the attorney wishes to prove by the witness,” and that this rule

“is in the interest of fairness and efficiency”). Defense counsel is then given the

opportunity to cross-examine the government’s witnesses about “those matters that

are raised by the direct examination,” Guzman, 769 A.2d at 790, including matters

related to a witness’s credibility and reliability, id.; see also In re C.A., 186 A.3d

118, 122 (D.C. 2018); Jones v. United States, 853 A.2d 146, 152 (D.C. 2004). At

the conclusion of cross-examination, the government can request an opportunity

for redirect examination, which is usually restricted by the scope of cross-

examination; this generally concludes the witness’s testimony.          Singletary v.

United States, 383 A.2d 1064, 1073 (D.C. 1978) (explaining there is “generally no

constitutional right to recross-examine a witness, since the scope of the redirect

examination is limited to matters which were first raised on cross-examination, to

which the opposing party is merely responding”); see also Brown v. United States,

763 A.2d 1137, 1140 (D.C. 2000) (explaining the proper scope of redirect

examination); 1 MCCORMICK ON EVID. § 32 (7th ed.) (“[T]he consensus is that the
                                          7

party’s examination [on redirect] is typically limited to answering any new matter

drawn out in the adversary’s immediately preceding examination.”).



      If, however, “material new matters are brought out on redirect

examination . . . the [C]onfrontation [C]lause of the Sixth Amendment mandates

that [the defendant] must be given the right of recross-examination on the new

issues.” Singletary, 383 A.2d at 1073; accord Hilton v. United States, 435 A.2d

383, 389 (D.C. 1981).      Simply stated, if redirect functions like a new direct

examination, then recross-examination is as constitutionally essential as cross-

examination.7



      Here, we must determine, de novo, whether “material new matters” were

raised during the government’s redirect of Ms. Walker. Singletary, 383 A.2d at

1073; Carrington v. District of Columbia, 77 A.3d 999, 1003 (D.C. 2013) (“This

court reviews de novo whether the admission of certain evidence violates a




      7
         For this reason, we assume the trial court’s earlier statement—“I don’t do
recross”—was one of preference, not policy (the court, in fact, properly allowed
recross in that earlier instance, see note 6 supra). But in light of the constitutional
concerns detailed above and our holding in this case, that preference requires
reconsideration.
                                          8

defendant’s constitutional rights under the Confrontation Clause.” (emphasis

omitted)). 8 We conclude that the 911 recording was such a matter.



      The recording itself was unquestionably new. As the government concedes,

no part of it had been admitted into evidence before the government moved the

recording in its entirety into evidence on redirect. Defense counsel only played

portions of the 911 call to refresh Ms. Walker’s recollection and to permit her to

give her own testimony about what she had said during the call. Thus, none of the

recording was properly before the factfinder at the beginning of the government’s

redirect examination.9



      In addition, the content of the call and the purpose for which the government

offered it were material. Although defense counsel elicited testimony from Ms.

      8
         The government asserts that our review is solely for abuse of discretion.
But we made clear in Singletary the trial court’s discretion to grant (or deny)
recross relates only to “recross-examination as to matters not covered on redirect
examination.” 383 A.2d at 1073 (emphasis added).
      9
         The court’s observation that defense counsel “had the tape” and “played
what [he] wanted on the tape” on cross-examination, and its suggestion that denial
of recross was warranted because the defense had sandbagged the court, is thus
unsupported by the record. Counsel had not “played the tape” in any evidentiary
sense. Indeed, it would have been improper for him to do so. Wilkins v. United
States, 582 A.2d 939, 942 (D.C. 1990) (explaining that under District law, as under
federal law, it is “patent error” to “read a witness’[s] prior statement aloud for the
purpose of refreshing recollection”).
                                         9

Walker on cross-examination about three specific statements she had made to the

911 operator, the purpose of defense counsel’s questioning was not to elicit her

contemporaneous narrative of the incident, but rather to highlight inconsistencies

in her testimony and showcase her unreliability as a narrator. See note 3 supra.

By contrast, the government did not, as it asserts, use the recording “merely [to]

follow[] up” on defense counsel’s particular lines of inquiry. 10       Instead, the

government—which introduced almost the entire three minute and ten second

recording and then rested its case without asking Ms. Walker any questions about

its contents—used the recording to achieve a different purpose: to inculpate Mr.

Green with a new, nearly contemporaneous account of the incident. 11 As the

government argued in closing,

      [t]he Court heard that 911 call. The Court could hear her voice, could hear
      the pace of Ms. Walker’s voice, could hear the breathing on the tape. She
      was calling 911, you could hear her mention that she had bruises, that she
      had injuries, and that she needed help[.]

      10
            Accordingly, the facts of the cases the government cites are
distinguishable. See Tyer v. United States, 912 A.2d 1150, 1160, 1162 (D.C.
2006); Fisher v. United States, 779 A.2d 348, 356 (D.C. 2001); Singletary, 383
A.2d at 1074–75 (D.C. 1978).
      11
          In addition to providing near contemporaneous evidence regarding the
incident, Ms. Walker made statements to the 911 operator about a restraining order
between the parties and indicated that the police had been called to the house in the
past. The admissibility of this new prior bad acts evidence, Malloy v. United
States, 186 A.3d 802, 809–10 (D.C. 2018), was never examined, but at a minimum
this evidence was unquestionably an appropriate subject for cross-examination, see
Davis, 415 U.S. at 315–16.
                                        10

We also cannot agree with the government’s alternative arguments, either that this

evidence was “cumulative” of the rest of the government’s case, or that defense

counsel had any obligation to “explore” the inculpatory content of the then-

unadmitted recording on cross-examination. 12



      Because we conclude that, on these facts, Mr. Green’s Sixth Amendment

rights were violated when the trial court denied his request for recross-

examination, we must reverse unless the government can show that the error was

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24

(1967); Blunt v. United States, 863 A.2d 828, 836 (D.C. 2004). The government



      12
          Whether the government should have been able to admit the recording of
the 911 call on redirect is a distinct question. The parties have focused their
arguments on the rule of completeness, which manifestly does not apply since no
part of the call was admitted until the government moved it into evidence. Cox v.
United States, 898 A.2d 376, 381 (D.C. 2006) (“When part of a statement has been
admitted in evidence, the rule of completeness allows a party to seek admission of
the other parts or the remainder as a matter of fairness.” (citation omitted)
(emphasis added)); see also 1 MCCORMICK ON EVID. § 9 n.24 (7th ed.) (“Since the
real evidence is the witness’s testimony from refreshed memory, the exhibit [used
to refresh their recollection] is not formally admitted into evidence; rather, it
remains an exhibit ‘for identification.’”). The government also argues that the call
was properly admitted under the present sense impression and excited utterance
exceptions to the rule against hearsay, but we need not determine if the 911 call
would be admissible under our interpretation of those exceptions, see
Gabramadhin v. United States, 137 A.3d 178, 183–84 (D.C. 2016); Mayhand v.
United States, 127 A.3d 1198, 1208–09 (D.C. 2015), because we conclude that Mr.
Green is entitled to reversal on his Confrontation Clause claim.
                                          11

has not carried that burden here. The only two witnesses to the altercation were

Ms. Walker and Mr. Green. And the only questions were whether Ms. Walker was

telling the truth when she accused Mr. Green of attacking her and whether the

government had disproved Mr. Green’s claim that he acted in self-defense without

excessive force. Although the precise basis of the trial court’s judgment of guilt—

whether Mr. Green was the first aggressor or whether he employed excessive

force—is not altogether clear, either way, the government’s case rested on the

court’s assessment of Ms. Walker’s credibility. Ms. Walker was not a strong

witness. Indeed, she admitted that she was unsure if she was confusing details of

this incident with an earlier altercation and represented that her memory of the

incident “got[] better” over the course of the trial.         As manifested by the

government’s repeated references to the 911 recording in its closing, it was thus

beneficial to the government to be able to introduce a near-contemporaneous report

of the incident in the form of the recorded 911 call, and harmful not to give the

defense the opportunity to cross-examine Ms. Walker about its contents.



      The government highlights the fact that the court never expressly referred to

the 911 call in its findings of fact. But the trial court twice mentioned that Ms.

Walker had made a 911 call in discussing the evidence, and while the court did not

specifically allude to the content of that call, it was nonetheless part of the totality
                                        12

of the evidence bearing on credibility. Moreover, the government overlooks the

reason the recording was admitted into evidence: the court wanted to hear it.13 As

noted above, the court complained that it could not hear the recording when

defense counsel played snippets to refresh Ms. Walker’s recollection, see note 2

supra; it then invited the government to move the full recording into evidence even

though, until that time, the government had shown no interest in using the

recording in support of its affirmative case. Against this backdrop, we cannot

conclude that the admission of the 911 recording without an opportunity for

recross-examination was harmless beyond a reasonable doubt.14



      For the foregoing reasons, we reverse the judgment of the Superior Court

and remand for further proceedings consistent with this opinion.




                                                         So ordered.

      13
           Whether the court should have signaled to the parties the evidence it
thought might be important and that it wanted to be presented was not raised as an
issue in this case.
      14
          Because we reverse on this ground, we do not address Mr. Green’s other,
unpreserved, argument that a police officer testifying for the government provided
improper expert testimony. We do not expect this testimony to be an issue at any
retrial because it was given on cross-examination and was subject to a seemingly
legitimate objection that it was nonresponsive to defense counsel’s question.
