Dodson, Jr. v. United States ( 2023 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CF-238
THOMAS DODSON, JR., APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2015-CF1-012486)
(Hon. Rhonda Reid Winston, Trial Judge)
(Argued December 13, 2017 Decided February 9, 2023)
William Collins, Public Defender Service, with whom Samia Fam and Alice
Wang, Public Defender Service, were on the brief, for appellant.
Michael E. McGovern, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the brief was filed, and
Elizabeth Trosman, John P. Mannarino, Elana Suttenberg, and Ryan Creighton,
Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, Associate Judge, and WASHINGTON and FISHER, ∗ Senior
Judges.
∗
Judge Fisher was an Associate Judge of the court at the time of oral
argument. His status changed to Senior Judge on August 23, 2020. Senior Judge
Nebeker was a member of the division at the time of oral argument. Following Judge
Nebeker’s retirement in December 2020, Senior Judge Washington was selected to
replace him.
2
Opinion for the Court by Senior Judge FISHER.
Dissenting opinion by Associate Judge BECKWITH at page 22.
FISHER, Senior Judge: At his trial on charges of second-degree child sexual
abuse and third-degree sexual abuse (both with aggravating circumstances),
appellant Thomas Dodson Jr. argued that nine-year-old H.B.’s allegations were not
credible because they were influenced by her fear of her hot-tempered father, John
Bush. Appellant contends on appeal that trial court rulings limiting cross-
examination of the father and excluding certain extrinsic evidence of his past
behavior violated appellant’s Sixth Amendment rights to confront his accusers and
to present a complete defense. We reject appellant’s arguments and affirm.
I. The Factual and Procedural Background
A. The Evidence
Appellant Dodson lived in a house with members of his extended family,
including his niece Virginia Dodson and his nephew David Dodson. Virginia and
her boyfriend, John Bush, slept in a bedroom on the second floor. Many other
relatives, including their nine-year-old daughter, H.B., slept elsewhere within the
home. The adult occupants of the house had a rule that nobody was supposed to be
3
in anyone else’s room “without them being there.” Appellant Dodson, who is H.B.’s
great uncle, slept on a couch in the living room. At trial, family members referred
to appellant by his nickname, “Jupe.”
H.B. testified that on July 6, 2015, she was in her parents’ bedroom watching
“Criminal Minds” — a television show she watched regularly. (On cross-
examination, H.B. acknowledged that the show deals with “people who do bad
things,” including “[b]ad sexual stuff . . . [t]hings like rape.”) H.B. said that she
went downstairs to get a glass of water and saw appellant on the couch. Her mother,
her father, and her uncle Dave were on the front porch. After she returned to the
bedroom, appellant came into the room, “pushed [her] on her mother[’s] bed,” and
“laid on top of [her].” According to H.B., appellant moved “up and down” on her
with the front of his body; she circled her “front private area” on a demonstrative
drawing when asked where his body made contact with hers.
David Dodson testified that he and H.B.’s father, John Bush, were sitting on
the front porch that afternoon drinking beer. Accompanied by his large pit bull,
David went into the house to get some tools from his upstairs room. David explained
that “[w]hen [the dog] run[s] through the house, you hear it shaking.” “Soon as I
came up the stairs,” David said, “Jupe came running out the back room” and went
4
“[r]ight to the bathroom.” Recalling the rule against being in other people’s rooms,
David asked appellant “what he was doing back there.” Appellant responded that
he had been “playing with” H.B. David told H.B.’s father what he had seen and
what appellant had said.
David denied that he told detectives that appellant had said he was “messing
with” H.B. rather than “playing with” her, but also testified that he did not see any
difference between the two terms. Mr. Bush testified that David told him Jupe had
been “in [Mr. Bush’s] room messing with [H.B.].”
After talking with David, Mr. Bush went upstairs and asked H.B. “why was
Uncle Jupe in the room?” He told H.B. she was not in trouble, but she at first just
stared at him and acted like “she ain’t want to say nothing, but you know she was —
something she wanted to say.” She looked a “little bit” scared, and was “fidgeting
with her fingers.” Mr. Bush asked again, and H.B. said that Uncle Jupe was “on top
of me and wouldn’t let me up.”
On cross-examination defense counsel pressed Mr. Bush about the phrasing
of his questions to his daughter. Mr. Bush denied that he had asked “how Jupe had
messed with her. . . . I never asked her where Jupe touched her. I asked her why
5
Jupe was in the room.” Mr. Bush denied that he raised his voice when talking with
H.B., but agreed that he had to ask her a second time and that she “had a look on her
face like she thought she was going to get in trouble.” Mr. Bush acknowledged that
in July of 2015 he would yell at H.B. when she did “something wrong,” but denied
counsel’s assertion that “[t]he main way that you interact with your daughter is
through screaming [or] yelling.”
Mr. Bush testified that he “was not mad” when he began questioning H.B.
because he “didn’t have a reason to be mad at that time, at first.” However, when
H.B. told him what had happened, Mr. Bush was “[b]eyond upset” and told Mr.
Dodson he “was going to fuck him up.” Mr. Dodson “went out the back door and
[Mr. Bush] went out the back door behind him chasing him out the back door.” Mr.
Dodson was saying, “let’s talk, let’s talk,” but Mr. Bush would not listen because
his “daughter [was] not going to tell me something that’s a lie.”
H.B. left the house with her mother. H.B. testified that they saw Mr. Dodson
down the street, and that he told H.B. to “tell your mom what had happened.” The
mother did not testify.
Both appellant Dodson and someone else called 911, and two detectives
6
arrived on the scene and interviewed H.B. The following day, H.B. participated in
a forensic interview at the Child Advocacy Center during which she said that Mr.
Dodson “pushed her down onto a bed” and “humped her privates.”
Appellant called Dr. Bradley McAuliff, a professor of psychology who
testified as an expert on “child suggestibility and interviewing.” According to Dr.
McAuliff, the types of questions an adult asks can “dramatically influence” a child’s
relaying of information. 1 Dr. McAuliff also explained “source authority,” which is
the concept that a child may tell an adult incorrect or untruthful information
primarily because a child is predisposed to “defer” to the perceived authority of that
adult. In response to a hypothetical question about a father with a history of physical
violence toward a child, Dr. McAuliff testified that “the history of physical violence
increases [the father’s] authority in a way that relates to the child just being scared
of that individual and being more willing to acquiesce or go along with or agree with
information there. . . . That can enhance the child’s suggestibility . . . .” Dr.
McAuliff had not interviewed H.B. or any of the other witnesses in this case.
1
For example, he stated that “suggesting touch or asking directly about touch
can influence a child’s report” depending on the child’s age. Additionally, repeated
questions from the same or different adults can cause a child to shift their answers
because they interpret the repetition to “signal” that they have given an incorrect
response. Over time, children may “encode” the changed answer into their memory.
7
B. The Defense Theory
The defense theory was that nine-year-old H.B.’s testimony was not credible.
In his opening statement, appellant’s counsel asserted that H.B.’s father “went into
the room where [H.B.] was, slammed the door behind him and confronted her. And
he was angry. And you will hear that she was scared. He began confronting her,
questioning her. And when he asked her whether my client, her uncle, had touched
her, she acquiesced and said yes.”
Counsel also asserted that H.B.’s “story as to what happened has changed over
time. And it’s changed because it’s not her story. . . . [S]he’s saying these things
because she thinks it’s what her father and the other adults in this case want to hear.” The
jurors should not be persuaded, he said, because the government’s case depended on
the testimony of “a nine-year old child who was confronted by her angry father and
who was scared; a nine-year old who had words put into her mouth; a nine-year old
whose story changes upon every retelling.”
In his closing argument, appellant’s counsel emphasized the themes of fear
8
and suggestibility. 2 “This case started when [H.B.’s father] came into that bedroom,
when [he] asked [H.B.] how did Uncle Jupe mess with you? Where did Uncle Jupe
touch you? This case started when [H.B.] acquiesced and told her father consciously
or subconsciously what she thought he wanted to hear, and it snowballed from that
bedroom right into this courtroom.”
Counsel reminded the jurors that H.B.’s father has a temper. In the past he
had “hit her in the face, hit her in the chest, hit her with a belt, hit her pregnant mom
in the belly in front of her.” H.B. “told us that that day, she didn’t want her dad to
be mad at her.” Moreover, the defense expert, Dr. McAuliff, “told us . . . that that
was a recipe for disaster, a recipe for suggestibility. . . . [T]hat history of violence,
that fear she had of [her father] would only increase that phenomenon, only increase
the likelihood of suggestibility.” Furthermore, “the fact that [H.B.] has given
different versions over time, that alone is a reason to doubt.”
2
The defense presented testimony from Jacqueline Simpkins, a social worker
who had observed a forensic interview of H.B. conducted in 2012. Although that
interview was not related to any allegation of sexual abuse, the interviewer asked
H.B. routine questions about whether anyone had touched her nipples, “her
privates,” or her butt. H.B. answered “no” to all of those questions. In closing
argument, defense counsel emphasized H.B.’s “prior exposure to sexualized content,
whether on TV or that prior interview by the social worker.”
9
Finally, the court reminded the jurors in its instructions that “[i]t is the defense
theory that Thomas Dodson did not sexually abuse [H.B.]. The defense maintains
that [H.B.’s] allegation is the result of . . . suggestive . . . and repeated questioning
by her father and others combined with her fear of her father, her prior exposure to
sexualized content, and other factors suggesting to suggestibility [sic] that led to her
false report.”
II. Discussion
A. Additional Background
On cross-examination, H.B. confirmed that her father was angry when he
came in the room, but she denied that she was “scared of him.” However, answering
“yes” to a series of leading questions, she agreed that her father “has a temper” and
that he had hit her in the past; he had hit her “in the eye,” “in the chest,” and “with a
belt.” She had seen her father hit her mother when she was pregnant with H.B.’s
baby sister.
H.B. acknowledged once more that her father “has that temper” and admitted
that she didn’t want him to be angry with her. After her father left the room, “there
was a lot of shouting in [the] house” and “everyone just started arguing.” H.B.
10
agreed that her father wanted to know “where Uncle Jupe had touched” her and “how
Uncle Jupe had messed with” her, including whether Uncle Jupe had gotten “into
the bed” and “gotten on top of” her. H.B. also acknowledged that she had described
the events differently to different people. For example, she told a detective that
appellant had “pushed [her] to the ground and felt [her] privates over [her] clothing,”
while she told her mother that “he’s been pulling on me and trying to feel on me.”
H.B. agreed that being pushed to the ground is different than being pushed onto a
bed and that both those things cannot be true. Appellant does not assert that the
court impermissibly curtailed cross-examination of H.B.
After an intervening exchange about what she had said to various people, the
prosecutor asked, “When was the very last time that your dad hit you?” H.B. said
she did not know, but it had not happened since she started school that year. On July
6, when H.B. told her father what had happened, he did not hit her or say that he was
going to hit her.
To suggest that H.B. really was (or should have been) afraid of her father’s
violence, appellant’s counsel sought to cross-examine Mr. Bush about his prior
physical abuse and to admit evidence of a 2012 investigation into that abuse by the
Child and Family Services Agency (“CFSA”). Counsel proffered that, during that
11
investigation a family safety plan had been put into place to prevent Mr. Bush from
“be[ing] alone with [his] daughters because of how much [he] intimidated them.”
Counsel wanted to cast doubt upon Mr. Bush’s testimony on direct examination that
his interactions with H.B. that day were “very gentle” (these were defense counsel’s
words, not Mr. Bush’s) by “confront[ing]” him with evidence that he did not
“ordinarily interact[]” with H.B. in a calm or gentle manner. 3
When the trial court asked how the 2012 investigation would be relevant to
the day in 2015 when Mr. Bush questioned H.B., appellant’s counsel said it would
“corroborate” H.B.’s testimony about her father’s anger on the day of the incident
and would head off any argument that her testimony during cross-examination was
“lead-able or suggestible.”
After determining that the government would not contest H.B.’s testimony
that her father had hit her, and had hit her mother in her presence, the trial court
noted that those “specific acts . . . are in for the purpose of showing how [H.B.]
3
Counsel had proffered earlier that appellant Dodson had witnessed ongoing
abuse in the household since the 2012 CFSA investigation. Counsel acknowledged,
however, that if the witness “denies it, I probably won’t put [appellant] up to try to
impeach that.”
12
perceived this man that you said was trying to convince her to make these
accusations.” The court allowed cross-examination about Mr. Bush’s “tone of voice
and yelling . . . only on [July 6, 2015], not prior.” After Mr. Dodson objected that
he had a right under the Fifth and Sixth Amendments to “confront” Mr. Bush and
“expose the true nature of the relationship he has with his daughter,” the trial court
responded: “to the extent you think that’s relevant, it’s already in and as is its effect
on her.”
During an extended discussion with both counsel, the court commented that,
“if the safety plan is still in place, . . . it may be relevant that . . . CFSA believes him
to be an intimidating force and that he’s not even supposed to be alone with her. But
I don’t know whether that’s in the records.” Seeming to address both counsel, the
court stated, “[Y]ou need to tell me, as best you can from the records, what you know
about the state of the safety plan.”
On the following day, after discussions with CFSA personnel, appellant’s
counsel reported, “I have no reason to think that there’s any family safety plan
relating to John Bush in effect as of the date of this offense and, indeed, since a date
in 2012.” The court and the parties soon turned their attention to possible testimony
by other social workers.
13
As summarized in note 2, supra, appellant presented the testimony of social
worker Jacqueline Simpkins. Appellant also wanted to call LaShawn Dunn, a social
worker with a private organization who had worked in collaboration with CFSA
during the 2012 investigation. Counsel wanted her to testify about interactions she
had seen between Mr. Bush and his children. According to counsel’s proffer, Ms.
Dunn had more than twenty years of experience working with children and over the
course of ten months she observed Mr. Bush “always yelling” at the children for
“[a]nything,” such as “dropping paper on the ground.” “He did not have a gentle
setting.” She would have testified that Mr. Bush’s daughters had “fear in their eyes”
and “jumped whenever their father said anything to them.” Counsel argued that such
testimony would rebut Mr. Bush’s claim that he had (in counsel’s words) “a benign,
appropriate interaction” with his daughter on July 6. The court disagreed: “[Y]ou
may ask him whether he yelled at her, whether that’s his way of dealing with her,
you may ask him that. And then whatever he says, he says[.]” But “without any
information about what happened in the intervening period,” the court did not think
“this information about yelling at the child in 2012 . . . would go to rebut whatever
he says.”
14
B. Legal Analysis
Appellant argues that his constitutional rights to confront his accuser and to
present a defense were violated when the trial court precluded him from presenting
additional testimony and conducting further cross-examination of Mr. Bush about
his aggression toward H.B. Appellant asserts that these rulings impermissibly
hindered his efforts to reveal the nature and extent of H.B.’s motivation when
reporting the abuse and when testifying at trial. We disagree.
There is no doubt that “‘the exposure of a witness’ motivation in testifying is
a proper and important function of the constitutionally protected right of cross-
examination.’” Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (quoting
Davis v. Alaska, 415 U.S. 308, 316-17 (1974)). Motivation can be a form of bias.
See McCloud v. United States, 781 A.2d 744, 752 (D.C. 2001) (“Bias refers both to
a witness’s personal bias for or against a party and to his or her motive to lie.”).
Moreover, “[i]t is not enough that the possibility of bias be mentioned; counsel must
be permitted to present the nature and extent of the bias,” Longus v. United States,
52 A.3d 836, 851 (D.C. 2012), whether through cross-examination or by presenting
extrinsic evidence, see McDonald v. United States, 904 A.2d 377, 380 (D.C. 2006);
Hollingsworth v. United States, 531 A.2d 973, 979 (D.C. 1987).
15
But “[it] does not follow . . . that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on defense counsel’s
inquiry into the potential bias of a prosecution witness.” Van Arsdall, 475 U.S. at
679. The Constitution “guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). “[T]rial
judges retain wide latitude to . . . impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of
the issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Van Arsdall, 475 U.S. at 679.
“[D]efendants must be afforded ‘some opportunity’ — a fair and meaningful
opportunity — to show that the government’s witnesses are biased.” McDonald,
904 A.2d at 380. This “meaningful opportunity” standard applies both to cross-
examination and to the presentation of extrinsic evidence. See Crane v. Kentucky,
476 U.S. 683, 690 (1986) (“the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense”) (internal quotation marks
omitted); McDonald, 904 A.2d at 380.
16
Our rulings on questions like this must of necessity be based on such general
principles and the record of the individual case. Nevertheless, we are guided by the
Supreme Court’s holding that “a violation of the Sixth Amendment is shown if ‘[a]
reasonable jury might have received a significantly different impression of [the
witness’s] credibility had [defense] counsel been permitted to pursue [the] proposed
line of cross-examination.’” In re J.W., 258 A.3d 195, 202 (D.C. 2021) (quoting
Van Arsdall, 475 U.S. at 680). Applying these standards, we conclude that
appellant’s constitutional rights were not violated.
Bear in mind that John Bush did not have any first-hand knowledge about
what occurred when appellant was in the bedroom with H.B. She was the percipient
witness. There was no evidence that H.B. harbored ill will against appellant, and
appellant does not assert that the trial court impermissibly curtailed his cross-
examination of her. Rather, as detailed above, he tried to attack her credibility by
focusing on her father — asserting that she falsely accused appellant because she
feared her father and (consciously or sub-consciously) told him what she thought he
wanted to hear. These intertwined theories of fear and suggestibility were amply
supported by the cross-examination of H.B. and the testimony of Dr. McAuliff, and
17
they were vigorously argued by defense counsel. 4
Importantly, the court did not restrict inquiry (of either H.B. or her father)
concerning whether John Bush’s questions were phrased in a suggestive manner. In
addition, social worker Jacqueline Simpkins testified about a previous interview of
H.B. which touched upon sexual topics, and H.B. acknowledged that the TV show
Criminal Minds sometimes addressed “bad sexual stuff . . . like rape.” And the
defense expert, Professor McAuliff, thoroughly explained the various factors that
can engender suggestibility in child witnesses. Thus, appellant’s argument rests on
his claim that he should have been provided more opportunities to assert that H.B.
feared her father on July 6 and that this fear somehow led her to falsely accuse
appellant of sex abuse.
When asserting that he should be allowed to cross-examine Mr. Bush about
his prior bad acts, and to present extrinsic evidence of them, in order to impeach
Bush’s testimony about how he interacted with H.B. on July 6, appellant’s counsel
4
The dissent chastises us for referring to the “intertwined” theories of fear and
suggestibility, but this is an accurate description of the record. As described above,
defense counsel repeatedly combined these theories in his questioning of Dr.
McAuliff and in his arguments to the court and to the jury.
18
warmly embraced a propensity argument. See 12/15/15 Tr. 164 (“The fact that he
has struck her in the past is absolutely relevant to what he did that day because
propensity is super relevant.”). However, the trial court properly recognized that
counsel would be using that evidence in “exactly the way you’re not supposed to use
it.” “Although a witness may be impeached by inquiries into prior bad acts relevant
to credibility, ‘[g]enerally speaking, a party cannot present evidence that a person
acted in a certain fashion on a prior occasion in order to show conformity with that
behavior in a later setting.’” Austin v. United States, 64 A.3d 413, 422 (D.C. 2013)
(quoting Brown v. United States, 726 A.2d 149, 153 (D.C. 1999)). Moreover, when
offered to impeach a witness’s credibility, “[p]rior bad acts not rising to the level of
a criminal conviction . . . cannot be proven by extrinsic evidence.” Brown, 726 A.2d
at 153.
Appellant has now revised his argument to assert that “the impeachment value
of Mr. Bush’s prior yelling and abuse did not depend on an improper propensity
inference.” He claims that “[e]vidence of Mr. Bush’s past anger and hostility toward
H.B. was relevant to show his motive to treat her with similar anger and hostility at
a later time[.]” This reformulation (focusing on Mr. Bush’s “motive” and his
behavior “at a later time”) is nothing more than an assertion that on July 6 Mr. Bush
likely would have acted in conformity with his past behavior — in other words, a
19
propensity argument. 5
Appellant apparently hoped to present evidence about the 2012 safety plan
through an unnamed CFSA social worker. Because of confidentiality rules,
appellant proffered few details about the plan, and discussion of that evidence ended
soon after appellant’s counsel reported that he had no reason to think that the plan
was in place after 2012. It appears from context, however, that the trial court thought
that, due to the gap in time, such evidence would not appropriately rebut Mr. Bush’s
testimony about his interaction with H.B. on July 6, 2015.
Appellant gave a more complete proffer of the testimony he hoped to elicit
from social worker LaShawn Dunn, but her observations likewise had ended in 2012.
The court excluded her testimony about Mr. Bush’s behavior because, “without any
information about what happened in the intervening period,” it would not “go to
5
The dissent attempts to reformulate the argument yet again by focusing on
H.B.’s motive instead of Mr. Bush’s motive, asserting that “a history of an abusive
relationship with her father may have motivated H.B. to give her father an answer
that would keep him from getting angry at her, even if it meant fabricating
allegations against Mr. Dodson.” Post at 29. The defense made that point
repeatedly, through evidence and in argument. At this point in the trial, defense
counsel was trying to demonstrate that Mr. Bush must have been more fearsome on
July 6 than either he or his daughter acknowledged.
20
rebut whatever he says.” “[T]his information about yelling at the child in 2012, I
just don’t think that’s appropriate, and I’m not going to allow it.”
It is important to recognize that the trial court did not preclude all inquiry into
the topics of assault, yelling, and fear. See In re D.E., 991 A.2d 1205, 1211 (D.C.
2010) (“[W]here ample cross-examination has already been allowed or evidence
admitted on a particular issue, trial court curtailment of the defendant’s presentation
does not implicate the defendant’s Sixth Amendment rights[.]”). Indeed, after
extensive discussion, and voir dire of the witness, the court allowed defense counsel
to question H.B. about her father’s prior acts of violence. See 12/15/15 Tr. 105
(court stating that “the defendant has a right to show that the child is suggestible and
subject to the influence of the father and I guess things that go to that are relevant”).
As detailed above, H.B. then acknowledged, and the government did not contest,
that her father had hit her and that she had seen him hit her pregnant mother.
(Contrary to the dissent’s suggestion, the government never asserted (or even
implied) that these acts of violence did not occur.) 6 Despite counsel’s persistence,
6
Our dissenting colleague misconstrues the government’s rebuttal argument.
The prosecutor was not arguing that the jury should discredit H.B.’s testimony about
Mr. Bush’s physical abuse of her and her mother, nor would the jury have inferred
that the prosecutor was doing so. There were multiple topics on which defense
counsel asked a series of leading questions and elicited a series of “yes, yes, yes”
21
at no time did H.B. recant her accusations or suggest that she had been intimidated
into testifying falsely.
As demonstrated above, appellant developed a substantial record that
permitted him to argue his theories of fear and suggestibility to the jury. See Howard
v. United States, 241 A.3d 554, 564 (D.C. 2020) (“[I]t is significant here that during
[appellant’s] closing argument, his counsel was able to make the very argument to
the jury that he now claims the trial court precluded him from eliciting on cross-
examination.”); Gardner v. United States, 698 A.2d 990, 998 (D.C. 1997) (the “facts
were sufficient to enable defense counsel to argue [his theory] to the jury”;
concluding that “the questioning permitted . . . satisfied Confrontation Clause
requirements”). The vexing problem for appellant is that the jury was well aware of
the evidence and counsel’s arguments, but chose to believe H.B.’s testimony.
answers. Read in context, the passage quoted by the dissent (which focused on the
topic of “suggestive, leading questions”) was responding to defense counsel’s
argument mocking Mr. Bush’s characterization of his interaction with H.B. after he
entered the bedroom on July 6: that “somehow he asked non-leading questions in a
non-leading fashion about what he really thought was a nonissue.”
22
III. Conclusion
In sum, appellant had a “meaningful opportunity” to cross-examine the
government’s witnesses and to present extrinsic evidence bearing on their
credibility. The limitations of which appellant complains were reasonable and
within the “wide latitude” retained by trial judges. Appellant has not carried his
burden of showing that a reasonable jury “might have received a significantly
different impression of [H.B.s] credibility had [defense] counsel been permitted to
pursue [the] proposed line of cross-examination.” In re J.W., 258 A.3d at 202.
Appellant’s convictions are hereby.
Affirmed.
BECKWITH, Associate Judge, dissenting: Two questions—and what their
answers could say about H.B.’s motive to falsely accuse Thomas Dodson—were the
focus of the parties’ energies in this trial. Was H.B. afraid of her father? And how
real was that fear? The defense elicited and highlighted H.B.’s testimony that her
abusive father was angry when he confronted her and that he asked her where Uncle
Jupe had touched her, how he had messed with her, and whether he had gotten on
top of her. The prosecutor cast doubt on that testimony as the product of leading
23
questions on cross-examination, stating in closing argument that H.B. “just agreed
with everything [defense counsel] said really, yes, yes, yes, yes, yes, yes.” The
government instead endorsed John Bush’s own testimony that he was not angry
when he approached his daughter and that he only got angry after she told him that
Mr. Dodson had assaulted her.
It was in this context that the defense sought to fill in the picture of the father-
daughter relationship through cross-examination of Mr. Bush and testimony from a
social worker named LaShawn Dunn. Ms. Dunn would say that three years earlier,
the Child and Family Services Agency (CFSA) had put a family safety plan in place
to prevent John Bush from “be[ing] alone with [his] daughters because of how much
[he] intimidated them.” Ms. Dunn, who was involved for ten months in the CFSA
investigation that led to the safety plan, would tell the jury that Mr. Bush was
“always yelling” at his daughters for “[a]nything”—such as “dropping paper on the
ground.” She would testify that the girls “jumped whenever their father said
anything to them.” She would say that they had “fear in their eyes.”
No one seriously disputes the relevance of this evidence. And the majority
does not tell us what other valid discretionary basis justified excluding this
24
evidence—that it was repetitious, for example, or that it confused the issues at trial.
There was none. Instead, in affirming the trial court’s denial of Mr. Dodson’s
request to present this evidence, the majority essentially holds that Mr. Dodson’s
defense was good enough—he didn’t have a Fifth and Sixth Amendment right to
make it more compelling to the jury. But in fact Mr. Dodson did have a well-
established constitutional right to present probative evidence that would give the jury
a far more vivid picture of the basis for H.B.’s fear of her father—and thus her
motive to falsely accuse Mr. Dodson when her father confronted her—than the
evidence that my colleagues in the majority believe “amply supported” his bias
theory. In the majority’s view, the jury got the gist of the defense’s theory of H.B.’s
bias from evidence that Mr. Bush had hit H.B. in the past (which the government,
though not disputing, set out to downplay) or evidence that Mr. Bush was angry
when he entered the room (which the government rebutted with testimony to the
contrary and then ardently disputed in closing).
Setting aside for the moment whether it’s accurate to characterize H.B.’s
responses on cross-examination—testimony shrugged off by the government in
closing—as “amply supporting” Mr. Dodson’s fear-based bias theory, the
Confrontation Clause entitles a defendant to present more than just “ample”
25
evidence that a witness was motivated to falsely accuse him. A trial court generally
cannot preclude relevant evidence of bias. See Delaware v. Van Arsdall, 475 U.S.
673, 680 (1986) (stating that a trial court violates a defendant’s Confrontation Clause
right by prohibiting him “from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness, and thereby
‘to expose to the jury the facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness’” (alteration in original) (quoting
Davis v. Alaska, 415 U.S. 308, 318 (1974))). Trial courts undoubtedly have
discretion to “limit cross-examination to preclude repetitive and unduly harassing
interrogations . . . or to prevent inquiry into matters having little relevance or
probative value to the issues raised at trial.” Brown v. United States, 952 A.2d 942,
947 (D.C. 2008) (alteration in original) (quoting Adams v. United States, 883 A.2d
76, 81 (D.C. 2005)); see also Van Arsdall, 475 U.S. at 679 (identifying “harassment,
prejudice, confusion of the issues, the witness’[s] safety,” repetition, and “marginal[]
relevan[ce]” as concerns that may justify reasonable limits on cross-examination
designed to show a witness’s bias). But “the exercise of such discretion ‘cannot
justify a curtailment which keeps from the jury relevant and important facts bearing
on the trustworthiness of crucial testimony.’” Coates v. United States, 113 A.3d
564, 573 (D.C. 2015) (quoting Bennett v. United States, 797 A.2d 1251, 1257 (D.C.
26
2002)); see also Longus v. United States, 52 A.3d 836, 853 (D.C. 2012) (stating that
a trial court’s discretion on evidentiary matters cannot go so far as to prevent
“otherwise legitimate questioning by defense counsel to probe a witness’s bias”).
It is beyond serious question that the evidence the trial court excluded
amounted to “relevant and important facts bearing on the trustworthiness of crucial
testimony.” Coates, 113 A.3d at 573 (quoting Bennett, 797 A.2d at 1257). The trial
court acknowledged the relevance of the evidence—because, as it noted, an
interaction with someone can be “influenced by . . . prior interactions” with that
person, such as abuse or intimidation—but said it had “already [come] in” through
H.B.’s testimony. Indeed, the prosecutor’s effort to minimize H.B.’s testimony on
cross-examination as the mere product of leading questions proves how significant
the excluded evidence was to Mr. Dodson’s defense. 1
1
Cf. Andrews v. United States, 922 A.2d 449, 460 (D.C. 2007) (“A
prosecutor’s repeated highlighting [of particular evidence] . . . is persuasive
evidence of its centrality . . . .”); Allen v. United States, 837 A.2d 917, 922-23, 922
n.1 (D.C. 2003) (noting that the prosecutor’s closing argument “demonstrat[ed] . . .
the centrality of [the trial court’s] error” in overruling the defendant’s objection to
cross-examination); Green v. United States, 231 A.3d 398, 414 (D.C. 2020) (“A
prosecutor’s stress upon the centrality of particular evidence in closing argument
tells a good deal about whether the admission of the evidence was . . . prejudicial.”
(alteration in original) (quoting Morten v. United States, 856 A.2d 595, 602 (D.C.
2004))); Hill v. United States, 858 A.2d 435, 448 (D.C. 2004) (finding that the
27
The majority does not expressly hold that the proffered evidence here was
excludable on one of the grounds that might permit a court, in the exercise of its
discretion, to properly exclude it as evidence of bias, see Van Arsdall, 475 U.S. at
679, and the evidence displayed none of those flaws. The fact that the CFSA
investigation had occurred three years before trial was not a valid basis for excluding
important bias evidence. At the outset, defense counsel proffered that Mr. Dodson,
who lived in the house with this family, could confirm that the abuse had continued
beyond 2012. “[W]here counsel has information from her own client, which she
does not know to be false and which is not ‘inherently incredible,’ she has a
sufficient good-faith basis for the proposed cross-examination.” Scull v. United
States, 564 A.2d 1161, 1164 (D.C. 1989).
And in any event, it is well settled that incidents that occurred in the past can
be probative of a witness’s relationships in ways that may affect her testimony. See,
e.g., Obiazor v. United States, 964 A.2d 147, 150-52 (D.C. 2009) (finding that the
erroneous admission of an unwarned statement was not harmless because it was “a
focal point of the prosecution” as shown in part by the fact that it “was showcased
in the government’s closing argument”); Cotton v. United States, 388 A.2d 865, 872
(D.C. 1978) (finding any error harmless in part because the prosecutor “made no
mention of [the challenged evidence] in his closing argument to the jury”).
28
trial court erred in precluding cross-examination about a child accuser’s prior sexual
incidents and accusations, including one seven years prior, and rejecting the
argument that a prior incident introduced to show witness bias “must have happened
within a limited time frame, or that there must have been intervening incidents to
establish a nexus between the prior incident and the current one”); United States v.
Robinson, 530 F.2d 1076, 1079-80 (D.C. Cir. 1976) (“[T]he trier must be sufficiently
informed of the underlying relationships, circumstances and influences operating on
the witness so that, in light of his experience, he can determine whether a mutation
in testimony could reasonably be expected as a probable human reaction. Courts are
therefore very liberal in accepting testimony relevant to a showing of bias.” (quoting
3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence § 607(03)
(1975))); Wynn v. United States, 397 F.2d 621, 623-24 (D.C. Cir. 1967) (“A previous
quarrel between the witness and the party testified against readily suggests the
possibility of residual hostility, and the admissibility of extrinsic testimony to
establish the event seems unquestioned.” (footnote omitted)); Stack v. United States,
519 A.2d 147, 153-54 (D.C. 1986) (finding that the trial court erred in excluding
evidence of prior assaults “unless linked to ‘the relevant time period’” because such
evidence “was clearly admissible to show bias and motive to fabricate” and case law
29
supported the idea that even prior incidents “many years ago” are not “so remote in
time to be irrelevant to the parties’ relationship”).
The majority also indicates—though again, to what end is not clear—that it
would have been improper for Mr. Dodson to rely on the proposed testimony and
cross-examination to draw a propensity inference. That is true as far as it goes. 2
“But there is no rule of evidence which provides that testimony admissible for one
purpose and inadmissible for another purpose is thereby rendered inadmissible; quite
the contrary is the case.” United States v. Abel, 469 U.S. 45, 56 (1984). Here, the
precluded testimony and questions had a valid purpose that was not about showing
Mr. Bush’s character or temperament: to show H.B.’s bias. That is, a history of an
abusive relationship with her father may have motivated H.B. to give her father an
answer that would keep him from getting angry at her, even if it meant fabricating
allegations against Mr. Dodson. The majority does not dispute that this was a proper
purpose that Mr. Dodson put forth both in the trial court and in his argument on
appeal. Nor does the majority actually say there was a risk of the jury using this
evidence for an improper purpose, but to the extent there was such a risk, a well-
2
Thus Mr. Dodson could not use this evidence for the purpose of showing
that Mr. Bush acted in accordance with how he had interacted with H.B. in the past.
30
crafted jury instruction could have addressed that concern. Cf. Green v. United
States, 440 A.2d 1005, 1008 (D.C. 1982) (discussing the use of limiting instructions
where a defendant’s own prior bad act is admitted for impeachment purposes).
That leaves the majority’s suggestion—stemming perhaps from a concern
about “repetition,” though again the majority does not frame it as such—that Mr.
Dodson had a meaningful opportunity to pursue this bias theory because there was
enough evidence to permit him to make this argument. And yet the majority avoids
any statement that the fear-based theory alone had sufficient support in the record to
satisfy the Confrontation Clause. Instead, the majority combines Mr. Dodson’s
theory that H.B.’s fear of her father motivated her to lie with his contention that H.B.
was suggestible, stating that “[t]hese intertwined theories of fear and suggestibility
were amply supported by cross-examination of H.B. and the testimony of Dr.
McAuliff.” Ante at 16 (emphasis added). However related the two bases for
impeachment were—and the majority uses the phrase “fear and suggestibility” three
times—they were not “intertwined” for Confrontation Clause purposes. “[T]he
allowance of some examination for one type of bias . . . does not satisfy the Sixth
Amendment with respect to cross-examination for . . . a different kind of bias.”
Longus, 52 A.3d at 852; cf. Coates, 113 A.3d at 574 (finding that the trial court’s
31
exclusion of evidence going to a witness’s corruption bias was error notwithstanding
the introduction of other similar impeachment evidence—including evidence that
permitted the defendant to “attempt to make a corruption bias argument”—because
none of the other impeachment evidence “directly showed” corruption or “made a
serious dent in the government’s argument”). Dr. McAuliff’s testimony regarding
suggestibility provided a ground for impeaching H.B. that was distinct from the fear
theory. It could not logically meet the force of the government’s efforts to convince
the jury that Mr. Bush was not angry when he started questioning H.B. and so H.B.
had no reason to falsely accuse Mr. Dodson out of fear of her father’s anger. Given
Dr. McAuliff’s testimony that a child’s fear would “only increase the likelihood of
suggestibility,” the separate suggestibility theory may itself have been hindered by
the court’s exclusion of the additional evidence of H.B.’s fear. But Dr. McAuliff’s
testimony in no way compensated for the exclusion of evidence demonstrating how
real that fear was.
In turn, the blanket exclusion of this evidence was not harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). With Mr.
Dodson’s proposed evidence excluded, the only evidentiary support for his fear-
based bias theory—and the only evidence of Mr. Bush’s abuse of H.B.—came from
32
H.B.’s own testimony on cross-examination. And the prosecutor was able to
explicitly undermine this evidence by describing H.B. as an uncorroborated source
whose testimony was likely manipulated by the defense on cross-examination. The
prosecutor referred, for example, to “[t]he one time [H.B.] was asked suggestive,
leading questions,” asking the jury:
When was that one time? Cross-examination. Cross-
examination. That was the time she was asked a lot of
questions in a row and he had an answer that he wanted
her to give. And that’s how cross-examination works. He
has an answer that he wants to get out of her . . . . That’s
what he’s trying to do. And that’s what [H.B.] said, you
know, just agreed with everything he said really, yes, yes,
yes, yes, yes, yes.
The government’s determination to capitalize upon the lack of an unbiased source
substantiating H.B.’s responses on cross-examination makes plain why the
precluded evidence and cross-examination were not only relevant but critical to the
viability of the defense theory. See United States v. DeLoach, 504 F.2d 185, 191-92
(D.C. Cir. 1974) (finding that improper restrictions on defendant’s closing argument
were not harmless because “had [they] really been unimportant,” the prosecution
would not “have devoted much of [its closing argument]” to rebutting the defense
theory it had sought to limit). Ms. Dunn’s corroborative testimony would have
markedly countered the government’s arguments to the jury that H.B.’s admissions
33
of her father’s prior abuse were only on cross-examination and were exactly what
defense counsel wanted her to say.
This is also not a case where the evidence of guilt was overwhelming, and the
majority does not contend otherwise. Indeed, certain atmospheric exculpatory
evidence indicated that this was not a strong case for the government. For example,
the alleged sexual abuse took place in the middle of the afternoon when H.B.’s
mother and father and other family members were at home. When Mr. Bush
confronted Mr. Dodson and chased him out of the house, Mr. Dodson tried to get
Mr. Bush to talk and then called 911 himself. And Mr. Dodson told H.B. to “tell
[her] mom what had happened” when he encountered H.B. outside on the street with
her mother (who never testified). These facts aligned with Mr. Dodson’s insistence
that he did not abuse H.B. in the family’s house that day.
In sum, the case against Mr. Dodson turned largely on the credibility of H.B.’s
account of what happened. The government’s own closing argument—which
emphasized that Mr. Bush was not angry and portrayed the parts of H.B.’s testimony
that could suggest she reacted out of fear of her father as a “one-time” parroting of
defense counsel’s leading questions—confirms the significance of the precluded
34
questioning and evidence. It illustrates that even the government thought that the
jury would have had “a significantly different impression of [H.B.’s] credibility” had
there been evidence that could flesh out her testimony about her father’s abuse to
show in very real terms why that abuse might have triggered a fear-based response.
In re J.W., 258 A.3d 195, 205 (D.C. 2021). On this record, there is more than a
“reasonable possibility” that the unconstitutional exclusion of Ms. Dunn’s testimony
and the cross-examination of Mr. Bush affected the jury’s verdict. Chapman, 386
U.S. at 23. I respectfully dissent.