Romero v. United States

266 A.3d 217

Christian ROMERO, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-999

District of Columbia Court of Appeals.

Submitted April 2, 2020

Decided January 6, 2022

Gregory M. Lipper was on the brief, for appellant.

Bryan H. Han, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Easterly, and McLeese, Associate Judges.

Glickman, Associate Judge:

Christian Romero appeals his conviction by a jury of second-degree murder while armed.¹ The charge arose from an incident, captured in video camera footage shown at trial, in which Mr. Romero got into a street fight with two strangers and stabbed one of them to death. Mr. Romero contends his conviction must be reversed because the trial court allowed the government to cross-examine him about facts underlying a prior assault conviction, to the limited extent of eliciting that he had stabbed the victim in that case multiple times with a knife. The trial court ruled that Mr. Romero opened the door to this evidence by claiming, in his direct examination, that he "would never" intend to kill someone, and the court instructed the jury to consider the prior stabbing only for the proper purpose of assessing Mr. Romero's credibility. We find no abuse of discretion, uphold the court's ruling, and affirm appellant's conviction.

I.

The government sought to prove at trial that on the night of April 23, 2016, appellant confronted Dimas Fuentes-Lazo and Mario Rosales after they saw him break a side mirror on Rosales's parked car in the 800 block of Kennedy Street, N.W. The government charged that before Rosales could call the police, appellant lunged at him with a knife and then turned on and fatally stabbed Fuentes-Lazo.

Prior to trial in this case, the government informed appellant's counsel by letter that it expected to have certified copies of his 2013 conviction for first-degree assault in Maryland and the transcript of the hearing at which appellant pled guilty to that offense. In that case, the letter stated, appellant stabbed a man nine times with a knife, including three times in the neck and one time in the back, causing a punctured lung and other serious injuries. The government advised the defense that it did not intend to use appellant's Maryland conviction or guilty plea in its case-in-chief, but that it reserved the right to use that evidence "for purposes such as, but not limited to, impeaching Defendant should he testify or to rebut any suggestion by the defense (in its opening statement, questioning of witnesses, or otherwise) that Defendant did not know (or should not have known) that stabbing someone could cause an extreme risk of death or serious bodily harm."

At trial, the government's case-in-chief included the eyewitness testimony of Mario Rosales and of a security worker from a nearby restaurant who witnessed the killing; security camera footage from nearby businesses; and physical evidence including DNA profiles obtained from a knife and a Coca-Cola bottle found at the crime scene.

Mr. Rosales testified that he and Dimas Fuentes-Lazo, lifelong friends, drove to Kennedy Street to go to a restaurant. Rosales parked his car in the 800 block and the two friends got out and crossed the street. They stood on the sidewalk there while Rosales took a phone call. He was still on the phone when he heard a noise, turned toward the street, and saw appellant breaking the mirror of his car. Rosales testified that he confronted appellant, saying, "Hey that is my car."

Appellant responded with profanities, walked toward Rosales and Fuentes-Lazo, and threw a Coca-Cola bottle at them. Appellant then asked if the men wanted to fight. Rosales told appellant he was going to call the police. Accompanied by Fuentes-Lazo, Rosales went back across the street to his car to make the call from there. As he did this, he tried to push the car alarm button on his car key, and accidentally opened his trunk instead. Appellant, wielding a knife, "launch[ed] himself" at Rosales. Rosales kicked back at appellant, who bent over from the impact. Appellant then straightened up, turned to attack Fuentes-Lazo, and stabbed him several times before Rosales could come to his friend's aid. Appellant then dropped the knife and ran away.

Eduardo Videz, who was working as a "bouncer" at a restaurant in the 800 block of Kennedy Street, testified that he saw the fight. He did not know any of the men involved in it. Mr. Videz testified that appellant was holding the knife in his hand when he straightened up after Rosales kicked him. Video footage from store security cameras in the vicinity also showed the fight from its inception to appellant's flight. The video footage was consistent with the witnesses’ accounts, though it was not clear enough to show where the knife came from or whether appellant was the first to arm himself in the fight.²

Appellant testified that he acted in self-defense. He said he had gone to Kennedy Street that night to meet someone, had gotten lost, and was walking down the street looking for his destination when Rosales and Fuentes-Lazo called him over and Rosales accused him of hitting his car. Appellant admitted he had been drinking prior to the altercation and testified he "might have" damaged the car but did not remember doing so. Appellant said he tried to calm the two men down, but when Rosales opened the trunk of his car, appellant feared he was going to pull out a weapon. Then, appellant testified, he saw Fuentes-Lazo holding a knife. The rest of the incident, he said, "happened so quick" — he "got hit" by Rosales and knocked to the ground; he simultaneously knocked the knife from Fuentes-Lazo's hand; and he picked the knife up and "just reacted" to save his own life by fighting with and stabbing Fuentes-Lazo before fleeing.

In his direct examination, appellant acknowledged his prior assault conviction in Maryland. Defense counsel then asked appellant a series of questions regarding his intentions on the night of the stabbing, including:

Q: During this event, between the time when you were at the trunk of the car until, as you say, you were on the ground, did you ever form an intent, a plan in your mind to hurt somebody?

A: No.

Q: Did you ever form an intent or plan in your mind to kill somebody?

A: No, no, I would never do that.

This answer was followed by more questions of a similar nature, to each of which appellant responded in the negative.³

At the close of appellant's direct examination, the prosecutor asked for a bench conference, in which he asserted that appellant had "brought his character into issue" by testifying he "would never do anything like that." Therefore, the prosecutor argued, appellant had "opened the door" for the government to "attack that character" by impeaching appellant with the facts of his Maryland assault that showed he actually had done "something like that."

Defense counsel objected that "get[ting] into the details" of that conviction would go "beyond the purpose" of impeachment with a prior conviction, and that the government could sufficiently impeach appellant by re-eliciting the fact of his prior conviction and that it was for a first-degree assault. The court agreed with the government, however, explaining that:

the Government is seeking to impeach not just [appellant's] general character or credibility [with] a prior conviction, but [also] the assertion he never would have done something like that, namely stabbing another individual intentionally with a knife.

Because appellant's Maryland first-degree assault conviction "in and of itself" did not reveal that he used a knife, the court permitted the government to elicit that fact from appellant but admonished the prosecutor not to "dwell" on it. The court limited the cross-examination to "[j]ust simply the nature of the prior conviction and the fact there was a knife involved." Explaining that he would refrain from objecting during the government's cross-examination in order not to highlight it, defense counsel reiterated his objection to the court's ruling. The court agreed that the objection was "noted for the record."

The government then began its cross-examination:

Q: Mr. Romero, you mentioned on direct that you had a prior conviction for first degree assault in Maryland from 2013, right?

A: Yes, that is correct.

Q: You also said that when you were asked the question of would you ever, did you ever mean to harm anyone here, your answer was no, I would never do that, right?

A: Yes.

Q: That's not true, is it? The 2013 case involved your stabbing someone multiple times, didn't it?

A: No, I don't remember the question.

Q: Did the case involve you stabbing someone multiple times or not? That's the only question I have for you right now.

A: Yes.

The cross-examination then turned to other matters.

Before closing arguments and the court's final charge to the jury, the parties and the court discussed whether the jury should receive a specific instruction to consider the prior stabbing testimony only for impeachment purposes and not as propensity evidence. Defense counsel preferred that the court give only the "standard instruction" regarding impeachment by prior conviction, so as not to "highlight" again the similarities between the two crimes. Acceding to appellant's wishes, the court instructed the jury that appellant's

prior conviction is admitted into evidence solely for your consideration in evaluating his credibility as a witness. The evidence that he was convicted of a crime in the past is not evidence that Christian Romero is guilty of the offense charged in this case, and you must not draw such an inference.

In addition, the court warned the prosecutor against referring to appellant's prior assault conviction and its nature in closing argument.⁴ So warned, the prosecutor did not mention the underlying facts of appell...