Wynn v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-450
IRIK C. WYNN, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-17539-16)
(Hon. Maribeth Raffinan, Trial Judge)
(Argued December 6, 2018 Decided April 9, 2020)
Gregory M. Lipper for appellant.
Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Nicholas P. Coleman, and Natasha Smalky, Assistant United States Attorneys, were
on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and BECKWITH,
Associate Judges.
BLACKBURNE-RIGSBY, Chief Judge: Following a jury trial, appellant Irik C.
Wynn was convicted of assault with a dangerous weapon (“ADW”), D.C. Code § 22-
2
402 (2019 Supp.), of complainant Kevin Smith. 1 Appellant was tried jointly with
codefendant Michael Benjamin, whose motion for acquittal was granted at the
conclusion of the government’s case. The government’s evidence at trial included
Smith’s testimony and a redacted interview between codefendant Benjamin and a
Metropolitan Police Department (“MPD”) detective after Benjamin’s arrest, which
was introduced only against Benjamin. On appeal, appellant argues that the trial
court erred in (1) admitting the redacted interview, and (2) preventing him from
cross-examining Smith on potential bias. We hold that the trial court erred in
admitting the redacted interview in violation of appellant’s Sixth Amendment right
to confrontation and Super. Ct. R. 14 (“Rule 14”), and that the error was not
harmless. We also hold that the trial court did not abuse its discretion in limiting
appellant’s cross-examination of Smith. We reverse appellant’s convictions and
remand for a new trial.
1
The jury acquitted appellant of one count of assault with significant bodily
injury, D.C. Code § 22-404.01 (2019 Supp.), and two counts of possession of a
firearm during a crime of violence, D.C. Code § 22-4504(b) (2019 Supp.).
3
I. Factual and Procedural Background
Appellant and codefendant Benjamin were charged with assaulting Smith on
October 20, 2016. The government’s theory at trial was that the assault was
motivated by a drug debt Smith owed the two men. Smith testified that he regularly
purchased synthetic marijuana on credit from both appellant and Benjamin and that,
at the time of the assault, he owed both of them money. Smith also testified that, on
the day of the assault, he and Benjamin argued over his drug debt and agreed that
Smith would pay the debt in two days. After their argument, according to Smith,
Benjamin left in his car. Smith testified that, approximately 20 to 30 minutes later,
appellant approached Smith near the corner of 57th and East Capitol Streets,
carrying what Smith believed to be a weapon. Smith testified that appellant asked
him, “[W]here is the money that you owe me[?]” before hitting him on the head with
a gun multiple times. He also testified that Benjamin was watching the assault from
the corner.
Following his arrest, Benjamin gave a recorded interview to MPD Detective
Chad Howard. In the interview, Benjamin referenced appellant by his given name
and nickname, “E.” Benjamin admitted to confronting Smith about the debt but
denied apprising appellant of Smith’s location or calling appellant after his argument
4
with Smith. After Detective Howard told Benjamin that the police had his cellphone
records, Benjamin acknowledged that his cellphone called appellant on the day of
the assault, first stating that he called appellant but appellant did not answer, then
suggesting that a third party used his cellphone to call appellant.
Appellant and Benjamin were indicted on January 25, 2017, for the assault on
Smith. Before the indictment was filed, appellant filed a motion for severance.
Appellant asserted that the government’s introduction at their joint trial of
Benjamin’s interview with Detective Howard would violate his Sixth Amendment
Confrontation Clause right. Because Benjamin did not intend to testify, appellant
contended, Benjamin’s statements would be “extremely prejudicial” under Bruton
v. United States, which provides that, in a joint criminal trial, the admission of a
nontestifying codefendant’s statement that implicates a defendant violates the
defendant’s right to confrontation. 391 U.S. 123, 126 (1968). Appellant argued that
severance was necessary under the Confrontation Clause, as well as Super. Ct. R. 14
(“Rule 14”), which provides that “[i]f the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial appears to prejudice a
defendant . . . the court may order separate trials of counts, sever the defendants’
trials, or provide any other relief that justice requires.” After a hearing, the trial court
denied appellant’s motion and allowed the government to introduce the interview
5
with redactions, replacing references to appellant with neutral terms such as “he,”
“him,” “the other guy,” and “the other dude.” At trial, the redacted interview was
read to the jury by government counsel and Detective Howard.
Also at trial, appellant’s counsel sought to cross-examine Smith on two issues:
(1) a recent prior assault on Smith in the same neighborhood by a man named Cory,
and (2) additional debts owed by Smith to others in the community. With respect to
the incident with Cory, appellant’s counsel denied that he was pursuing a Winfield
defense, 2 even though he explained that cross-examination on those issues would
show more than a “vague idea that somebody else is responsible,” because it would
show that there was “an actual person and an actual event.” The trial court noted
that even though appellant was “not necessarily saying that Cory was the one who
attacked him on October 20,” appellant sought the testimony “to show that there
were other people who had a motive to assault the complaining witness and could
have been responsible instead of Mr. Wynn and Mr. Benjamin.” The trial court ruled
2
Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996) (en banc) (“[T]he trial
judge ordinarily may exclude evidence of third-party motivation unattended by proof
that the party had the practical opportunity to commit the crime, including at least
inferential knowledge of the victim’s whereabouts.”); see also Gethers v. United
States, 684 A.2d 1266, 1271 (D.C. 1996) (holding that the proponent of a Winfield
theory must establish “a reasonable possibility that an actual person other than the
defendant committed the crime or was otherwise responsible for it, not just a
hypothetical, unidentified person who may have had a motive”).
6
that the proffer “that someone else committed the assault,” suggesting “a
hypothetical unidentified person who may have had his own motive for the attack
was responsible,” was “exactly what Gethers prohibits.” To the extent appellant
wanted to name Cory as Smith’s possible assailant, the trial court concluded that the
evidence would be prohibited under Winfield “without a proffer that Cory had both
a motive and practical opportunity to commit the offense.” The trial court similarly
denied appellant’s request to cross-examine Smith about his alleged community
debts after appellant failed to proffer how the testimony would be relevant.
After the government rested its case, appellant and Benjamin moved for
judgment of acquittal. The trial court granted Benjamin’s motion and denied
appellant’s motion. At the conclusion of the trial, the trial court instructed the jury
to disregard Benjamin’s interview with Detective Howard in considering the case
against appellant. During its deliberations later that day, the jury sent a note asking
the court, “[W]hat portion of [D]etective Howard’s time on the witness stand as a
witness for the prosecution can we consider?” The trial court responded in writing
and informed the jury, again, that it was not to consider any substantive part of
Detective Howard’s testimony as the government’s witness, but that it was allowed
to consider Detective Howard’s testimony when he was called as appellant’s
7
witness. 3 The jury convicted appellant of ADW, but acquitted him of the remaining
charges. This appeal followed.
II. Legal Standard
A. Extrajudicial Statements Under the Confrontation Clause and Rule 14
The Sixth Amendment’s Confrontation Clause provides a criminal defendant
with the right “to be confronted with the witnesses against him,” including the right
to cross-examine those witnesses. U.S. Const. Amend. VI; see Smith v. United
States, 180 A.3d 45, 51 (D.C. 2018). The introduction of “incriminating
3
The trial court responded to the jury with the following:
The only portion of the testimony of Detective Howard
that you should consider, when he was called by the
government as a witness and cross-examined by Mr.
Benjamin’s lawyer, Ms. Jean-Baptiste, is the testimony
that related to the detective’s name, where he worked, and
what district he worked in. The remainder of his testimony
related to the statement of Mr. Benjamin, which you have
been instructed you should not consider as part of the
evidence against Mr. Wynn. However, the testimony of
Detective Howard when called by the defense, cross-
examined by the government, and re-directed by defense
counsel, is part of the evidence that you may consider in
this case.
8
extrajudicial statements of a codefendant” who renders himself unavailable for
cross-examination by asserting his Fifth Amendment right not to testify violates the
defendant’s right to confrontation. Bruton, 391 U.S. at 135–36; Thomas v. United
States, 978 A.2d 1211, 1222–23 (D.C. 2009). “[A] major reason underlying the
constitutional confrontation rule is to give a defendant charged with crime an
opportunity to cross-examine the witnesses against him.” Bruton, 391 U.S. at 126(citation omitted). That opportunity is absent as to incriminating extrajudicial
statements of a codefendant admitted in a joint trial when, as is typical, the
codefendant does not testify. Id. at 135. Additionally, under Rule 14, the trial judge
has a “continuing duty to take adequate steps to reduce or eliminate any prejudice
arising from joinder.” Thomas, 978 A.2d at 1223 (quoting Carpenter v. United
States, 430 A.2d 496, 503 (D.C. 1981) (en banc)). In Carpenter, we held that Rule
14 requires the trial court to “take appropriate steps to minimize the prejudice
inherent in codefendant confessions[,] which are inadmissible against the
nondeclarant defendant.” 430 A.2d at 502.
The issue in these circumstances is whether there was a “substantial risk that
the jury, despite instructions to the contrary, looked to the incriminating extrajudicial
statements in determining [appellant’s] guilt.” Bruton, 391 U.S. at 126; see also
Gray v. Maryland, 523 U.S. 185, 190 (1998) (“[T]here are some contexts in which
9
the risk that the jury will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored.” (quoting Bruton, 391 U.S. at 135));
Thomas, 978 A.2d at 1233.
The remedial options—whether under the Confrontation Clause or Rule 14—
are the same:
[U]nless the government agrees to forgo any use of the statement, it
must be redacted to eliminate all incriminating references to the co-
defendant, or the co-defendant’s motion for severance must be
granted—whether or not the defendant who made the statement takes
the stand and testifies.
Thomas, 978 A.2d at 1224 (citation and internal quotation marks omitted). 4 Where
redactions are feasible, severance is not required. Carpenter, 430 A.2d at 501–02.
The Supreme Court in Bruton recognized that, in the context of joint trials, a jury
instruction to disregard a nontestifying codefendant’s statement incriminating a
defendant is an “[in]adequate substitute for [the defendant’s] constitutional right of
4
See also Carpenter, 430 A.2d at 505 (“Yet, in a certain, limited class of
cases, where the references to the nonconfessing defendant are so intertwined within
the confessing defendant’s statement that redaction is impracticable and the
references are not significantly incriminating, it may be appropriate for the trial
court, after weighing the alternatives, and recognizing the desirability of excluding
inadmissible evidence, to admit the statement with limiting instructions.” (footnote
omitted)).
10
cross-examination.” 391 U.S. at 137. The Supreme Court refined this rule in
Richardson v. Marsh, holding that if an extrajudicial statement is not incriminating
on its face and only becomes incriminating when linked with other evidence
introduced at trial, then the statement is properly admitted if the defendant’s name
and any reference to the defendant’s existence are eliminated and the jury is properly
instructed. 481 U.S. 200, 208–09, 211 (1987). Then in Gray, the Court held that
the replacement of a name with “an obvious blank space,” a word like “deleted,” or
symbols or other similarly “obvious indications of alteration” are prohibited by the
Sixth Amendment. 523 U.S. at 192. We have observed that, taken together, these
cases “instruct that a defendant’s extrajudicial statement normally may be admitted
in evidence in a joint trial . . . so long as the statement, as redacted if necessary, does
not incriminate a non-declarant co-defendant on its face, either explicitly or by direct
and obvious implication,” and there is a sufficient limiting instruction. Thomas, 978
A.2d at 1235 (emphasis omitted). Such substitutions “must be accomplished
artfully, so as not to indicate to the jury that the statement originally contained actual
names.” Id. at 1237; see also Gray, 523 U.S. at 192–95. A nonfacially incriminating
statement is generally admissible if the redactions replace names with nonspecific
pronouns like “we” or “he,” “even where there was only one accomplice and only
one co-defendant is on trial with the declarant.” Thomas, 978 A.2d at 1237. The
11
necessity and sufficiency of the redactions are legal questions that this court reviews
de novo. Id. at 1226.
Beyond redactions, the trial court must ensure that the statement does not
facially implicate the defendant, either through the “circumstances surrounding the
making of the extrajudicial statement . . . when, to whom, and in whose presence it
was made, for example,” id. at 1235, or through extrinsic evidence of the
nondeclarant defendant’s identity, such as a “nickname” or “specific description.”
Gray, 523 U.S. 195. We distinguish extrinsic evidence of the codefendant’s identity,
which is unacceptable under Bruton, from extrinsic evidence of the codefendant’s
guilt, which raises no Bruton issues. Compare Thomas, 978 A.2d at 1236 (noting
that a jury, upon learning that the declarant was standing next to the codefendant
when he said “[w]e robbed the bank,” could understand that “we” clearly included
the codefendant), and Gray, 523 U.S. at 193 (“[T]he jury will often realize that [a]
confession,” in which the nonconfessing defendant’s name is replaced with the word
“deleted” or “deletion,” “refers specifically to the [nonconfessing] defendant.”), with
Richardson, 481 U.S. at 208 (holding that codefendant’s confession to a murder,
which “was not incriminating on its face,” did not violate the nonconfessing
defendant’s right to confrontation when it incriminated him after being linked to
evidence introduced later at trial); see also Matthews v. United States, 13 A.3d 1181,
12
1187 n.5 (D.C. 2011) (“The context in which a statement is made, however, is
different from the statement in the context of the trial in which other admissible
evidence is produced.”). Redactions, however, can only function when the
government “does not blatantly link the defendant to the deleted name.” Gray, 523
U.S. at 193.
We subject Bruton violations to the test established in Chapman v. California,
386 U.S. 18 (1967), “to determine if they are harmless beyond a reasonable doubt.”
(David B.) Johnson v. United States, 883 A.2d 135, 141 (D.C. 2005) (citation
omitted). Under Chapman, the error is harmless if the government can demonstrate
“beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” 386 U.S. at 24. Put differently, we must determine whether there
is a “reasonable possibility” that the error “might have contributed to the
conviction.” See id. (noting “little, if any, difference” between “reasonable
possibility” and requirement that the government prove beyond a reasonable doubt
that the constitutional error did not contribute to the conviction).
13
B. Cross-Examination for Bias
A defendant’s Sixth Amendment right to confrontation “necessarily includes
the right to cross-examine,” Grayton v. United States, 745 A.2d 274, 279 (D.C.
2000) (citation omitted), which is “an important means of testing the credibility of
government witnesses by exposing any biases or reasons for the witness not telling
the truth,” McCray v. United States, 133 A.3d 205, 232 (D.C. 2016) (citation
omitted). The “complete denial of the opportunity to cross-examine a witness as to
bias” violates a defendant’s Sixth Amendment right to confrontation. Blades v.
United States, 25 A.3d 39, 42 (D.C. 2011) (citation omitted). In such circumstances,
“we may only affirm if we are convinced that the error was harmless beyond a
reasonable doubt.” (Marques A.) Johnson v. United States, 118 A.3d 199, 204 (D.C.
2015) (quoting Clark v. United States, 639 A.2d 76, 81 (D.C. 1993)).
However, before pursuing cross-examination suggesting bias, a defendant
must “lay a foundation sufficient to permit the trial judge to evaluate whether the
proposed question is probative of bias.” Blades, 25 A.3d at 42. (citation omitted).
The Confrontation Clause “guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Gardner v. United States, 140 A.3d 1172,
14
1191 (D.C. 2016) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). A
defendant must proffer facts that “support a genuine belief that the witness is biased
in the manner asserted, or at least a well-reasoned suspicion rather than an
improbable flight of fancy to support the proposed cross-examination.” Howard v.
United States, 978 A.2d 1202, 1207 (D.C. 2009) (citation and internal quotation
marks omitted). The notion that “the Sixth Amendment permits skeptical
questioning aimed at probing for the truth, notwithstanding the lack of a good-faith
basis for an accusation of bias, has no support in the law.” Brown v. United States,
683 A.2d 118, 125 (D.C. 1996) (citation omitted); (Irving W.) Johnson v. United
States, 418 A.2d 136, 140 (D.C. 1980) (noting that complete preclusion of cross-
examination for bias violates a defendant’s confrontation right, but only “assuming
an appropriate proffer” has been made). “[T]rial judges retain wide latitude insofar
as the Confrontation Clause is concerned 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.” Gardner, 140 A.3d at 1191. A proffer’s adequacy “lies within
the sound discretion of the trial court.” Howard, 978 A.2d at 1207.
III. Discussion
15
A. The Redacted Interview
Detective Howard’s preceding testimony impermissibly linked Benjamin’s
redacted statements to appellant in violation of Bruton and Carpenter. We thus hold
that admission of the redacted interview was error and that the error was not
harmless.
Just before the jury heard Benjamin’s redacted testimony, the government
elicited the following testimony from Detective Howard:
GOVERNMENT: Now, before we get to the transcript itself
during the course of the interview with defendant Benjamin. Did
he indicate whether he knew an individual by the name of Irik
Wynn or E?
DETECTIVE HOWARD: He did.
GOVERNMENT: And what did he indicate about that?
DETECTIVE HOWARD: He indicated that he knew E from the
area of Clay Street or the area that he frequents Central Avenue.
From the area.
GOVERNMENT: And at this point, Your Honor, if I may I’d
like to hand Government’s Exhibit 48 back to the detective. May
I approach?
THE COURT: Yes.
GOVERNMENT: Detective, at this point I’m going to ask you
to read the portions that are marked the defendant Michael
16
Benjamin and I’ll read the portions that are marked as detective
Howard; okay?
Immediately after the foregoing exchange, the government re-enacted Benjamin’s
interview—with the prosecutor reading Benjamin’s part—in which Benjamin
acknowledged several times that, shortly after his argument with Smith over the
debt, a call was made from Benjamin’s cellphone to “the other guy”:
BENJAMIN: No, I never, I never told him he was around there or
nothing.
DETECTIVE HOWARD: Did you call though?
BENJAMIN: He ain’t answer.
***
DETECTIVE HOWARD: Is it the dude you called? I mean, you got his
number.
BENJAMIN: Yeah, I know him.
***
DETECTIVE HOWARD: Why you call the other guy?
BENJAMIN: Maybe I wanted something. Maybe the person that called him
wanted something.
DETECTIVE HOWARD: Well, how coincidental is that. He gets called by
you right after he talked to Kevin. And then not ten minutes later.
BENJAMIN: How you know I didn’t call him before I seen Kevin?
17
The government elicited testimony from Detective Howard explicitly linking
appellant to Benjamin just before they heard about Benjamin’s calls to this “other
guy,” impermissibly priming the jury to implicate appellant in that call. In Gray, the
government violated a defendant’s Sixth Amendment right to confrontation when it
“blatantly link[ed]” the defendant Gray to the redacted name “by asking whether
Gray was arrested on the basis of information in [the redacted] confession as soon
as the officer had finished reading the redacted statement.” 523 U.S. at 193. In the
same way, here, the government blatantly linked appellant to “the other guy” by
prefacing the redacted interview with testimony that Benjamin knew appellant. This
is precisely the type of extrinsic evidence of a defendant’s identity that runs afoul of
Bruton. The government attempts to distinguish Gray by noting that, by the time
the government elicited Detective Howard’s testimony preceding the introduction of
the redacted interview, the jury had already heard testimony that Benjamin and
appellant were acquaintances. But that argument undercuts the government’s
position. If the jury had already heard about Benjamin’s familiarity with appellant,
then eliciting the same testimony, without more, was seemingly a non sequitur that
served no apparent purpose other than to impermissibly link appellant to the person
referenced in the redacted interview. That is not to say that had Detective Howard’s
testimony more logically arisen in the course of his examination, the government
would have satisfied its obligations under Bruton. At bottom, by eliciting testimony
18
that “blatantly link[ed]” appellant to the unnamed individual referenced in
Benjamin’s redacted interview just before that interview was read to the jury, the
government violated appellant’s Sixth Amendment confrontation right. Gray, 523
U.S. at 193.
Having found a constitutional error, we next consider whether the error was
harmless under Chapman. 386 U.S. at 24. Under these circumstances, we hold that
it was not.
The government’s case against appellant centered on Smith’s identification of
appellant as his assailant. Smith made an in-court identification of appellant as his
assailant at trial, and testified that he knew appellant well: He had known appellant
for two-and-a-half to three years before the assault, considered him a friend,
purchased drugs from him, owed him money, gave him car rides, visited appellant’s
apartment, and met appellant’s mother. Smith also testified that, shortly before the
assault, he saw appellant’s black two-door Honda Accord parked at the corner, a car
he had ridden in before.
On appeal, the government argues that any error was harmless because
Benjamin’s redacted statement was not “particularly incriminating” in that it did not,
19
in the government’s view, implicate appellant in the assault on Smith or otherwise
corroborate Smith’s testimony about the incident. The question, however, is not
whether Benjamin’s statement to Detective Howard was particularly incriminating,
but rather whether it is “reasonab[ly] possibl[e]” that the statement “might have
contributed” to appellant’s conviction. Chapman, 386 U.S. at 24. We conclude that
it is.
The jury heard Smith testify that appellant and Benjamin knew each other
(suggesting they coordinated in the Smith attack), and that appellant, regardless of
any coordination, was motivated by a desire to collect on Smith’s unpaid drug debt.
But without Benjamin’s statement to Detective Howard, the government’s case
turned entirely on Smith, whose testimony was uncorroborated, and whose unpaid
and overdue drug debt to appellant gave him a strong bias and motive to accuse
appellant falsely. It is reasonably possible that any doubts the jury might have had
about Smith’s testimony were assuaged by Benjamin’s corroborating statement.
When the jury heard that Benjamin called appellant after confronting Smith on
October 20, the government was finally able to square the circle by corroborating
Smith’s description of the assault and his identification of appellant was his
20
assailant. 5 Although the test for harmless error “is an exacting standard,” Ellis v.
United States, 941 A.2d 1042, 1048 (D.C. 2008), we conclude here that there is a
“reasonable possibility” that the admission of the redacted interview and the manner
in which the government introduced it “might have contributed to the conviction.”
Chapman, 386 U.S. at 24.
B. Cross-examination of Kevin Smith
Appellant argues that the trial court violated his Sixth Amendment right to
confrontation by prohibiting him from cross-examining Smith for two possible
sources of bias: the October 11 assault by “Cory” and Smith’s alleged community
debts. The government responds that appellant’s proffer was insufficient to support
cross-examination on the two theories, and further contends that, because appellant
failed to advance a bias theory at trial, we should review the claim for plain error.
Regardless of whether or not appellant raised the issue of bias cross-examination at
trial, we conclude that, because appellant failed to proffer facts sufficient to support
5
Contrary to the government’s assertion, the trial court’s limiting
instructions, see supra note 3, did not mitigate the potential prejudice as “we cannot
accept limiting instructions as an adequate substitute for [appellant’s] constitutional
right of cross-examination. The effect is the same as if there had been no instruction
at all.” Bruton, 391 U.S. at 137.
21
his proposed cross-examination, the trial court did not err in limiting appellant’s
cross-examination of Smith. 6
With respect to the relevance of the earlier assault, appellant failed to proffer
facts that supported a genuine belief or well-reasoned suspicion that Smith was
motivated to falsely accuse appellant in order to protect the actual assailant, who had
allegedly assaulted him nine days prior. Appellant’s trial counsel asserted that “there
are reasons to believe [Smith] might be hiding that someone else attacked him,” but
failed to proffer any facts in support of those reasons. Further, as the government
notes, it makes little sense that Smith was lying to protect Cory from the police,
given that he had identified Cory to the police in connection to the October 11 attack.
Contrary to appellant’s assertion, the trial court did not err in assessing appellant’s
proposed cross-examination under Winfield, as that was how his proffer was
presented. But even construed as a request for bias cross-examination, appellant
6
Because appellant did not argue that his proposed cross-examination went
to Smith’s bias, the trial court reasonably construed appellant’s proposal as relevant
to a Winfield defense. We have, however, recognized the “conceptual similarity
between bias cross-examination of a witness and a Winfield defense.” Ashby v.
United States, 199 A.3d 634, 661 (D.C. 2019) (citation and internal quotation marks
omitted). In any event, because we see no error in the trial court’s limitation of
appellant’s cross-examination of Smith, we need not decide whether appellant failed
to raise the bias issue and review for plain error.
22
failed to proffer facts to establish a genuine belief or well-reasoned suspicion that
Smith’s incident with Cory was relevant to bias. See Howard, 978 A.2d at 1207.
Appellant’s proffer with respect to Smith’s alleged debts to other people in
the community was similarly insufficient. When the trial court asked about the
relevance of such evidence, appellant’s counsel replied, “I don’t have any[thing]
more specific to offer.” Benjamin’s counsel contended that evidence of whether
Smith “generally has other debts or conflicts in that area . . . could establish that
someone else with the ability to assault him did.” The trial court responded, “So to
just ask him about other money that he might owe to other people I think is consistent
with my ruling on the attacks. I don't think that there's a good faith basis at this
time.” Because appellant failed to proffer facts to support a genuine belief or a well-
reasoned suspicion that the alleged debts were relevant to Smith’s potential bias, the
trial court did not abuse its discretion in limiting appellant’s cross-examination.
IV. Conclusion
We conclude that the redacted interview was impermissibly linked to
appellant and thus failed to afford him the protections under the Confrontation
Clause and Rule 14. Because the government failed to prove beyond a reasonable
23
doubt that the error did not contribute to the jury’s verdict, the error was not
harmless. We also hold that the trial court did not abuse its discretion in limiting
appellant’s cross-examination of Smith for bias because he failed to proffer facts to
support a genuine belief or a well-reasoned suspicion that the prior assault or alleged
debts were relevant. We reverse appellant’s conviction and remand for a new trial.
So ordered.