Cynthia Sanchez v. District of Columbia , 102 A.3d 1157 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CT-128
CYNTHIA SANCHEZ, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CTF-9146-12)
(Hon. Heidi M. Pasichow, Trial Judge)
(Argued September 30, 2014 November 6, 2014)
Grey Gardner for appellant.
John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and
Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.
NEWMAN, Senior Judge: In this appeal, we are confronted with the
contention that a trial judge abused her discretion in sua sponte invoking the “rule
on witnesses” to exclude an expert witness called by the defense from hearing a
portion of the testimony of the principal fact and expert witness called by the
2
government. We find an “erroneous exercise of discretion,” and the prejudice
required to constitute an “abuse” thereof.1 Thus, we reverse.
In a bench trial, Sanchez was tried for driving under the influence, D.C.
Code § 50-2201.05 (b)(1) (2009). The government‟s chief witness, Carll, a
uniformed member of the U.S. Capitol Police, testified both as a fact witness and
as an expert. On direct examination, he testified to the events leading to his
stopping the vehicle that Sanchez was driving and that caused him to order her out
of the vehicle. He testified that he administered three sobriety tests: the horizontal
gaze nystagmus (HGN); the walk and turn; and the one-leg stand.2 He described
1
(James W.) Johnson v. United States, 398 A.2d 354, 365-66 & n.9 (D.C.
1979).
2
In Pennsylvania v. Muniz, 496 U.S. 582, 585 n.1 (1990), the Supreme
Court explained:
The “horizontal gaze nystagmus” test measures the extent
to which a person‟s eyes jerk as they follow an object
moving from one side of the person‟s field of vision to
the other. The test is premised on the understanding that,
whereas everyone‟s eyes exhibit some jerking while
turning to the side, when the subject is intoxicated “the
onset of the jerking occurs after fewer degrees of turning,
and the jerking at more extreme angles becomes more
distinct.” 1 R. Erwin et al., Defense of Drunk Driving
Cases § 8A.99, pp. 8A-43, 8A-45 (1989). The “walk and
turn” test requires the subject to walk heel to toe along a
straight line for nine paces, pivot, and then walk back
(continued…)
3
Sanchez‟s performances on these tests, which, coupled with the odor of alcohol on
her breath, led him to conclude that she was operating her vehicle while under the
influence. He arrested her. At the police station, Sanchez was advised by the
officer who had transported her, Fleming, of the Implied Consent Act. She
declined to be tested. The form reflecting her so declining was admitted into
evidence.
After Carll testified on direct examination, counsel for Sanchez commenced
cross-examination concerning his methodology in administering the field sobriety
tests. He was soon interrupted when the trial judge summoned both counsel to the
bench and stated:
At this point, I don‟t think that your expert should be in
the courtroom. He‟s heard the direct examination, and I
don‟t really think it‟s appropriate for him to hear the
cross, so I‟m going to ask him to wait outside, because --
if the Government had objected to him hearing the direct,
I might have considered excluding him, because it seems
to me that the questions that you ask him must be based
on the documents provided, could be based upon any CV
that was provided or any discovery that was provided.
(…continued)
heel to toe along the line for another nine paces. The
subject is required to count each pace aloud from one to
nine. The “one leg stand” test requires the subject to
stand on one leg with the other leg extended in the air for
30 seconds, while counting aloud from 1 to 30.
4
At this point, I don‟t see that it‟s appropriate for
him to be in here for your cross examination.
Counsel informed the court that he intended to have Carll demonstrate in as
accurate and minute detail as possible exactly how he administered the three tests;
that direct examination had not done so; that there was no video recordation of the
testing; and that the defense expert, Palacios, needed to see Carll‟s demonstrations
and further testimony in order to opine thereafter whether the tests had been
performed in the proper manner. Counsel further attempted to inform the court of
his need for the presence of the defense expert to assist him in formulating further
cross-examination based on Carll‟s answers. This trial judge cut off the attempt to
proffer and ruled:
I don‟t think he should be here to hear the witness‟s
answers to your cross. You can ask him on direct. I
think it gives you a completely unfair tactical advantage
to have him sitting here on cross-examination when you
can ask him questions on direct and the Government
would get to cross him and determine what his answers
will be.
Counsel‟s subsequent attempts to have the trial judge reconsider this ruling were
equally futile. As she informed counsel, “you‟re just going to have to make do
with those circumstances the best way you can.”
5
Palacios testified. He described the proper methodology for administering
each of the tests. He opined that there were a number of defects with Carll‟s
methodology. He further opined that based on the other testimony in the
government‟s case—including the testimony of Fleming (the transport officer) that
he observed no signs of impairment during the twenty or so minutes he interacted
with Sanchez—Carll “misinterpreted or mis-scored” the vertical nystagmus portion
of the HGN test. He stated he could not be one hundred percent sure because of
“not being able to see the officer administer the test.” However, if the tests are not
administered properly “the validity of the test is compromised.”
The defense presented a number of fact witnesses, including Sanchez, all of
whose testimony was exculpatory. In addition, the defense called a second expert
witness, Lappas, a forensic toxicologist who testified on a “common” and
“accepted methodology” of retrograde extrapolation, which he described as a
“method of estimating what a blood alcohol level concentration in blood was at
some time prior to the time the analysis was conducted.” Given a hypothetical fact
pattern tracking the defense evidence, he opined that the blood alcohol level of
such a person at the time of Sanchez‟s arrest would have been between 0 and 0.04.
6
As early as 1943, we held that a trial judge has discretion to exclude non-
party witnesses from hearing testimony at trial before testifying themselves,
Bedrosian v. Wong Kok Chung, 33 A.2d 811, 812 (D.C. 1943)—the so-called “rule
on witnesses.” We have reaffirmed this ruling repeatedly. See, e.g., Garmon v.
United States, 684 A.2d 327, 328-29 (D.C. 1996); (James) Johnson v. District of
Columbia, 655 A.2d 316, 317-18 (D.C. 1995) (per curiam); Matthews v. United
States, 267 A.2d 826, 829 (D.C. 1970). We will reverse that decision only upon a
showing of an “abuse of discretion.” Garmon, 684 A.2d at 328-29. See generally
(James W.) Johnson, supra, 398 A.2d at 365-66 (delineating our abuse of
discretion analysis).
We have also distinguished the testimony of “expert” witnesses and “fact”
witnesses. (James) Johnson, supra, 655 A.2d at 318-19; compare Fed. R. Evid.
615 (articulating the “rule on witnesses”), with Fed. R. Evid. 703 (1972) (“The
facts or data in a particular case upon which an expert bases and opinion . . . may
be those perceived by . . . the expert at or before the hearing.”). Our cases are in
accord with this portion of Rule 703. See, e.g., In re Amey, 40 A.3d 902, 910 (D.C.
2012) (relying on this portion of the rule); In re M.L., 28 A.3d 520, 530 n.21 (D.C.
2011) (same). What we said in (James) Johnson, supra, about excluding expert
witnesses bears repeating at length:
7
Nevertheless, while we find no abuse of discretion here,
it is worth pointing out that in applying Rule 615 of the
FEDERAL RULES OF EVIDENCE (discussing the exclusion
of witnesses), federal courts have relied upon a well-
established distinction between factual witnesses and
expert witnesses: “We perceive little, if any, reason for
sequestering a witness who is to testify in an expert
capacity only and not to the facts of the case. . . . [T]he
presence in the courtroom of an expert witness who does
not testify to the facts . . . hardly seems suspect and will
in most cases be beneficial, for he will be more likely to
base his expert opinion on a more accurate understanding
of the testimony as it evolves before the jury.” Morvant
v. Construction Aggregates Corp., 570 F.2d 626, 629-30
(6th Cir.), cert. dismissed, 439 U.S. 801 (1978);
Polythane Systems v. Marina Ventures Int’l, 993 F.2d
1201, 1209-10 (5th Cir. 1993), cert. denied, [510] U.S.
[1116] (1994) (quoting Morvant, supra, 570 F.2d at 629-
30); United States v. Lussier, 929 F.2d 25, 30 (1st Cir.
1991) (citing Morvant, supra, 570 F.2d at 629-30);
United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir.
1982) (same); see also Malek [v. Fed. Ins. Co.], 994 F.2d
[49,] 54 [(2d Cir. 1993)] (the expert, whose assistance
was important to plaintiff‟s case, was “not a „fact witness
whose recollection might have been colored‟ by the
testimony of other witnesses” and should have been
allowed to remain in the courtroom) (citation omitted).
Furthermore, under Rule 615, a party is entitled to show
that his expert is “essential to the presentation of the
party‟s cause” and therefore should not be excluded from
the courtroom: “[W]here a fair showing has been made
that the expert witness is in fact required for the
management of the case, . . . we believe that the trial
court is bound to accept any reasonable, substantiated
representation to this effect by counsel.” Malek, supra,
994 F.2d at 53-54 (discussing the Rule 615(3) exemption
to witness exclusion and quoting Morvant, supra, 570
F.2d at 630).
8
In the future, therefore, it would seem prudent for the
trial court to consider the appropriate distinctions
between factual witnesses and expert witnesses in
deciding whether to exclude witnesses from the
courtroom. In particular, the trial court should allow
parties the opportunity to show any potential prejudice
they may endure by the exclusion of their expert—i.e.,
why the expert‟s presence in the courtroom is “essential
to the presentation of the party‟s cause.”
655 A.2d at 318-19 (alterations in original) (footnotes omitted) (parallel citations
omitted).
We reiterated this in Garmon, supra, 684 A.2d at 328-29 & n.2. We repeat
it yet again here.
Here, the trial judge‟s reasons for excluding the defense expert are at odds
with the rationale of permitting an expert to base an opinion on “facts made known
to the expert at . . . the hearing.” Fed. R. Evid. 703 (1972). This is particularly so
in cases, including this case, in which the trial was a bench trial. See McKenzie v.
United States, 659 A.2d 838, 841 (D.C. 1995) (presuming that, in a bench trial, the
trial judge does not make improper use of evidence); (Melvyn A.) Johnson v.
United States, 636 A.2d 978, 981 (D.C. 1994) (“[A] trial judge is presumed to
know of the proper use of evidence.”). The proper exercise of discretion requires
9
that a valid reason be given or be discernable from the record. (James W.)
Johnson, supra, 398 A.2d at 367. The Federal Rules of Evidence and our prior
decisions have established that the presence in the courtroom of expert witnesses is
the norm, subject to exceptions. Here, the trial judge articulated no valid basis for
the exclusion and none is discernable from the record. Considering the record
before us, we have no hesitation in ruling that there was an erroneous exercise of
discretion.
In determining whether the erroneous exercise of discretion mandates
reversal, and thus constitutes an abuse of discretion, we are mindful of the right of
the defendant to present a defense. Chambers v. Mississippi, 410 U.S. 284, 302
(1973); accord Taylor v. Illinois, 484 U.S. 400 (1988) (affirming the defendant‟s
right to present witnesses in his defense). This right includes the right to confront
witnesses and the right to introduce expert testimony. See, e.g., Benn v. United
States, 978 A.2d 1257, 1269-70 (D.C. 2009); Robinson v. United States, 50 A.3d
508, 523 (D.C. 2012). The right to present expert witnesses perforce includes the
need to afford the expert appropriate means of gathering the “facts and data” upon
which to base an opinion. In furtherance thereof, the defendant has a right to have
his attorney consult with the expert during cross-examination of the government‟s
expert so as to enable defense counsel to conduct meaningful cross-examination.
10
While these rights, as with others, are subject to reasonable judicial limitations,
those limitations must be imposed with the nature of the right in mind.
Here, the defense sought to have the expert, Palacios, observe Carll
demonstrate in detail how he performed the three sobriety tests to provide Palacios
the “facts and data” as foundation for his expert opinion on whether the tests were
properly administered. Deprived of this opportunity by the trial court‟s ruling, the
defendant had to rely on the ability of counsel to give a second hand description of
the demonstration that Carll gave on cross-examination. The unsatisfactory nature
of this as a substitute is perhaps highlighted by the government‟s closing argument,
in which it urged the trial court to give limited weight to Palacios‟s testimony since
he “was unable to see how [Sanchez] did on the test, to hear what she said, to see
the position that they were done in.” The trial court did so, stating that Palacios
“listened to the direct examination [of Carll] and he formulated some concerns
based upon what he heard of the direct, but he also indicated, based upon what he
didn‟t say, that the officer in some significant ways also conducted the tests in
appropriate fashion.”
In evaluating the issue of prejudice, we are mindful that Palacios was able to
opine, based on what he heard on the direct examination of Carll and buttressed by
11
the “facts” recited by the defense counsel from Carll‟s cross-examination, that
Carll had not properly administered at least some of the tests. However, we are
also mindful that the defendant was deprived of further opportunity to evaluate
Carll‟s methodology directly and to point out any additional flaws as Palacios
testified. In addition, the defendant was deprived of the use of her expert to
meaningfully assist counsel in the conduct of the cross-examination of Carll. The
trial court was left with, and credited, Carll‟s self-assurance that he had basically
used proper methodology.
As the trial court recognized, the government‟s proof was far from
compelling. It is with all these considerations in mind that we turn to the task of
evaluating prejudice.
In doing so, we must look at the “totality of the
circumstances” and decide whether we can 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.”
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Only if the error “jeopardized the fairness of the
proceeding as a whole,” or had a “substantial impact
upon the outcome” of the case, may we reverse the
judgment. [James W.] Johnson[, supra], 398 A.2d [at]
366.
12
Goines v. United States, 905 A.2d 795, 802 (D.C. 2006) (parallel citation omitted);
accord In re L.C., 92 A.3d 290, 299-300 (D.C. 2014); King v. United States, 75
A.3d 113, 120 (D.C. 2013); Heath v. United States, 26 A.3d 266, 281 (D.C. 2011);
Russell v. United States, 17 A.3d 581, 588-89 (D.C. 2011); In re L.L., 974 A.2d
859, 865 (D.C. 2009); Pannu v. Jacobson, 909 A.2d 178, 199 (D.C. 2006); Mercer
v. United States, 724 A.2d 1176, 1194 (D.C. 1999).
Having done so, we reverse.3
So ordered.
3
Sanchez also asserts that the trial judge‟s “apparent advocacy” violated her
due process rights. See Haughton v. Byers, 398 A.2d 18, 20-21 (D.C. 1979); see
also Knapp v. Kinsey, 232 F.2d 458, 465-66 (6th Cir. 1956). In addition to the sua
sponte sequestration of Palacios, Sanchez points to what she claims was excess
questioning of defense witnesses. See Haughton, supra, 398 A.2d at 21. Likewise,
she complains about the judge‟s comments about the utility, or lack thereof, of
Lappas‟s testimony on “retrograde extrapolation,” as well as her suggestion to
Palacios that he was merely “second guessing” Carll. We need not decide, and do
not decide, whether these matters provide independent grounds for reversal.
Likewise, we need not decide, and do not decide, Sanchez‟s Confrontation Clause
claim arising from the court‟s sua sponte limitation of her cross-examination of
Carll for bias.