IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 81,135
STATE OF KANSAS,
Appellee,
v.
MICHAEL LEE MARSH II,
Appellant.
SYLLABUS BY THE COURT
1. The standard of review on a sufficiency of the evidence claim in a criminal appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are persuaded that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. A conviction of even the gravest offense may be sustained by circumstantial evidence. It is the function of a jury and not an appellate court to weigh evidence and pass on the credibility of witnesses.
3. The evidence in this case was sufficient to establish that the defendant set the fire in issue, that one of the victim's burns was the proximate cause of her death, and that defendant acted intentionally and with premeditation in killing the other victim.
4. The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.
5. A party whose evidence is excluded by a motion in limine has the responsibility of proffering sufficient evidence to preserve the issue on appeal.
6. No error in either the admission or the exclusion of evidence is a ground for new trial or for setting aside a verdict unless refusal to take such action appears to be inconsistent with substantial justice. An appellate court must disregard any error or defect in a proceeding that does not affect the substantial rights of the parties.
7. Errors in violation of a constitutional right of a party are governed by the federal constitutional error rule. Under that rule, an error of constitutional magnitude may not be found harmless unless an appellate court is willing to declare a belief beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
8. Under the Kansas and federal Constitutions a criminal defendant is entitled to present the theory of his or her defense. Exclusion of evidence that is an integral part of the theory violates the defendant's fundamental right to a fair trial.
9. Few rights are more fundamental than that of an accused to present witnesses in his or her defense. The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure.
10. The general rule is that, unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact.
11. To establish relevance, a party must show there is some material or logical connection between the asserted facts and the inference or result they are designed to establish.
12. The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.
13. Proper application of Kansas' third-party evidence rule is limited. Although evidence of a third party's motive to commit a crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime. Furthermore, circumstantial evidence connecting a third party to a crime must not be excluded merely because the State relies upon direct evidence of a defendant's guilt. There is no bright line rule. Instead, the decision whether to admit third-party evidence is entrusted to the sound discretion of the district court, after evaluation of the totality of facts and circumstances in a given case under the relevance standard set forth in K.S.A. 60-407(f). To the extent earlier Kansas decisions suggest that the third-party evidence rule should be applied more broadly, they are disapproved.
14. On the record in this case, the district court's failure to engage in an evaluation of the totality of facts and circumstances under the relevance standard set forth in K.S.A. 60-407(f) in order to determine whether the defendant's third-party evidence was admissible was reversible error.
15. A party, through testimony, may open the door for otherwise inadmissible evidence.
16. The admission of circumstantial evidence of a third person's culpability is constitutionally required when the third person testifies against the defendant. A defendant's constitutional right of confrontation is violated when he or she is prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias, a need to deflect suspicion, on the part of the third party.
17. On the record in this case, the district court committed reversible error by refusing to admit the defendant's third-party evidence after the third party testified against the defendant.
18. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.
19. Kansas courts may apply the avoidance doctrine in appropriate cases. The doctrine is characterized by application of two canons of statutory interpretation. First, the constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and, before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way for the court to construe the statute as constitutionally valid, it should do so. Statutes are not stricken down unless the infringement of the superior law is clear beyond a reasonable doubt. Second, a statute apparently void on its face may be constitutional when limited and construed to read the necessary requirements into it. This may be done, for example, when such an interpretation will carry out the intent of the legislature.
20. The avoidance doctrine seeks in part to minimize disagreement between the legislative and judicial branches of government by preserving enactments that might otherwise founder on constitutional objections. It is not designed to aggravate that friction by creating, through the power of precedent, statutes foreign to those the legislature intended. Those who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional. In addition, the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a fair one.
21. The courts' power to employ the avoidance doctrine to construe away a statute's constitutional infirmity is limited. The judiciary may not rewrite language enacted by the legislature. Rather, the doctrine applies only when a statute is ambiguous, vague, or overbroad.
22. It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law generally will be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised. Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved.
23. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law. However, courts of last resort are not inexorably bound by their own precedents. They will follow the rule of law established in earlier cases unless clearly convinced that the rule was originally erroneous or is no longer sound.
24. Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision. It is designed to protect well-settled and sound case law from precipitous or impulsive changes. It is not designed to insulate a questionable constitutional rule from thoughtful critique and, when called for, abandonment. This is especially true when the rule in question was adopted sua sponte and is young and previously untested.
25. K.S.A. 21-4624(e) is unambiguous. Its express language was clearly intended to mandate the imposition of a death sentence when the existence of aggravating circumstances was not outweighed by any mitigating circumstances. The legislature chose this language over alternative wording recommended by the attorney general to avoid constitutional infirmity. As a result, the statute is unconstitutional on its face under the Eighth and Fourteenth Amendments.
26. The avoidance doctrine cannot be appropriately applied to save K.S.A. 21-4624(e). Any holding to the contrary in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), is overruled.
27. On the record of this case, the evidence was sufficient to support a finding that aggravating circumstances in support of imposition of a hard 40 sentence were not outweighed by mitigating circumstances.
28. There are three exceptions to the rule that issues must have been raised in the district court before they will be addressed on appeal: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court was right for the wrong reason.
29. Kansas' hard 40 sentencing scheme as set forth in K.S.A. 2003 Supp. 21-4635(a) does not increase the statutory maximum punishment; it sets a minimum punishment. As such, it is not unconstitutional as a violation of the holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Appeal from Sedgwick district court, CLARK V. OWENS II, judge. Opinion filed December 17, 2004. Affirmed in part, reversed in part, and remanded with directions.
Rebecca E. Woodman and Steven R. Zinn, capital appellate defenders, argued the cause and were on the briefs for appellant.
John K. Bork, assistant attorney general, argued the cause, and Kristafer Ailslieger, Jared Maag, and Elizabeth Reimer, assistant attorneys general, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, LUCKERT, GERNON, and BEIER, JJ.: This is an appeal by the defendant, Michael L. Marsh II, from convictions of capital murder of Marry Elizabeth Pusch (M.P.), first-degree premeditated murder of Marry Ane Pusch (Marry), aggravated arson, and aggravated burglary. Marsh has been sentenced to death for the capital offense, life imprisonment with a mandatory minimum term of 40 years for the murder of Marry, 51 months for aggravated arson, and 34 months for aggravated burglary. The district court ordered the last three sentences to be served consecutively.
On appeal, Marsh raises 18 issues arising from the guilt phase of the trial and 16 issues from the penalty phase. We begin by observing that there is a heightened scrutiny of trial proceedings in a capital case. Beck v. Alabama, 447 U.S. 625, 637-38, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). However, because we conclude K.S.A. 21-4624(e) is unconstitutional on its face, precluding application of the death penalty, we will not apply a heightened scrutiny standard of review to the remaining issues on appeal.
We deem the following issues to be controlling: (1) Is there substantial competent evidence to support each of Marsh's convictions? (2) Was evidence improperly excluded by the district court? (3) Is K.S.A. 21-4624(e) unconstitutional on its face? (4) Is there substantial competent evidence to support imposition of a hard 40 sentence for the premeditated murder of Marry? and, (5) Is the hard 40 sentencing scheme set forth in K.S.A. 2003 Supp. 21-4635(a) unconstitutional?
FACTS
On the evening of June 17, 1996, Marry and her 19-month-old daughter, M.P., were murdered in their Wichita home. Marry died as a result of multiple gunshot wounds to her head and a knife wound to her heart. The perpetrator or perpetrators apparently did not physically harm M.P before setting the house afire and leaving the child to die in the ensuing conflagration. M.P. sustained severe burns to her body, resulting in multiple organ failure and death on June 23, 1996.
Fire investigators determined the fire was intentionally started with an accelerant applied to Marry's body. An autopsy revealed Marry had been shot 3 times, stabbed in the heart, and her throat slashed. The county coroner concluded Marry had died as a result of her wounds, with her body set afire after death.
In the initial stages of investigation, detectives interviewed Marry's husband, Eric Pusch (Pusch), who mentioned having spent most of June 17 with a friend, Michael Marsh, before going to work at approximately 4:30 p.m. as a delivery man for a local Pizza Hut. This led the police to interview Marsh.
A series of interviews with Marsh resulted in his confession to shooting Marry and abandoning M.P. when he fled the residence. He told the detectives his motive was to obtain money from the Pusch family. According to Marsh, he planned to be in the home when Marry and M.P. arrived, tie them up, and wait until Pusch got home. He would then threaten Pusch with harm to his wife and child to obtain the money needed for a trip to Alaska. Marsh indicated his plan went awry when Marry and M.P. arrived at the house earlier than he had anticipated; he panicked and shot Marry. Initially, he told detectives he could not recall how many times he pulled the trigger; subsequently, he indicated firing the gun once. Marsh was equivocal regarding the fire. At one point he indicated he probably did set the fire; at another point he stated he could not remember; and, finally, he denied setting the fire. Marsh denied Pusch was in any way involved in committing the crimes.
There was substantial evidence corroborating Marsh's confession. Marsh lived with his grandparents. Keys to the Pusch home were found discarded in a yard next to the grandparents' home. Among the items recovered during execution of a search warrant at the grandparents' residence were a .25 caliber pistol with five cartridges in the magazine, Marsh's bloodstained tennis shoes, a pillow with bullet holes in it wrapped in duct tape, and a water bottle with duct tape around its neck. Expert testimony at trial established the pillow and bottle could be used as a makeshift silencer.
Both Marry's and M.P.'s clothing tested positive for medium petroleum vapors consistent with lighter fluid. However, Marsh's clothing and shoes tested negative for vapors. Marry's blood was found on one of Marsh's tennis shoes; inexplicably, so also was the blood of Pusch.
Prior to trial, the State filed a motion in limine to prevent Marsh from introducing circumstantial evidence suggesting that Pusch stabbed Marry and set the fire killing M.P. The State contended that Kansas law would prevent admission of circumstantial evidence tending to implicate Pusch in the face of direct evidence Marsh killed Marry and set the fire. Marsh's trial counsel argued there was substantial evidence linking Pusch to the crimes and proffered the evidence the defendant sought to introduce at trial. The district court granted the State's motion in limine, reasoning that the State's evidence against Marsh was direct and thus the defense could not present the proffered circumstantial evidence to implicate Pusch.
The jury found Marsh guilty of capital murder of M.P., first-degree murder of Marry, aggravated arson, and aggravated burglary. At the penalty phase of the trial, the State relied upon the following statutory aggravating factors to support a death sentence: (1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; (2) he committed the crime in order to avoid or prevent a lawful arrest or prosecution; and (3) he committed the crime in an especially heinous, atrocious or cruel manner. See K.S.A. 21-4625. The jury found all three aggravating circumstances existed and were not outweighed by any mitigating circumstances and unanimously agreed to a sentence of death.
At sentencing, the trial judge found sufficient evidence to support the sentence of death recommended by the jury. See K.S.A. 21-4624(f). The trial judge also found the same three aggravating circumstances were not outweighed by mitigating circumstances to support imposition of a hard-40 sentence. See K.S.A. 2003 Supp. 21-4638. Marsh also was sentenced to 51 months for aggravated arson and 34 months for aggravated burglary, with all sentences to be served consecutively.
SUFFICIENCY OF THE EVIDENCE
The issue on appeal is limited to whether the evidence was sufficient to support the jury's verdict finding Marsh guilty of capital murder. Marsh contends the evidence was insufficient to establish that: (1) he set the fire; (2) M.P.'s burns were the proximate cause of her death; or (3) he intentionally killed M.P. with premeditation. When a sufficiency of the evidence issue is raised, our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).
Marsh confessed to the crime of aggravated burglary. He admitted hiding in the Pusch home and shooting Marry in the head when she came into the bedroom. The .25 caliber pistol used to shoot Marry was subsequently found in Marsh's backpack at his grandparents' home. He admitted to attempting to start a fire with matches to conceal his crimes but claimed this was unsuccessful. Nonetheless, we know from the uncontroverted evidence there was a fire that caused burns to more than 75 percent of M.P.'s body. Although there is no direct evidence Marsh set the fire, the circumstantial evidence is sufficient for a rational factfinder to conclude beyond a reasonable doubt that he did so and that he abandoned M.P. to die in the fire.
Marsh also argues the evidence was insufficient to establish M.P.'s burns were the proximate cause of her death. This argument must fail. Both the treating physician and the medical coroner testified M.P.'s cause of death resulted from the extensive burns to her body and the related failure of internal organs. Conversely, both doctors concluded the drugs given to M.P. at the hospital did not cause her death.
A conviction of even the gravest offense may be sustained by circumstantial evidence, State v. Penn, 271 Kan. 561, 564, 23 P.3d 889 (2001), and it is the function of a jury and not an appellate court to weigh evidence and pass on the credibility of witnesses. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). After considering all of the evidence presented to the jury for its consideration upon this issue, we conclude Marsh's sufficiency of the evidence arguments must fail.
THE EXCLUSION OF MARSH'S EVIDENCE
Marsh contends the district court erred in excluding evidence connecting Pusch to the crimes. Marsh argues the court's pretrial order in limine excluding the evidence was erroneous for two reasons: First, the Kansas third-party evidence rule only excludes motive evidence in the absence of other relevant evidence, circumstantial or direct, to connect a third party to the crime; and second, after Pusch testified as a witness for the State, the "door was opened" and the order in limine should have been disregarded.
"'The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.'" State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002) (quoting Brunett v. Albrecht, 248 Kan. 634, 638, 810 P.2d 276 [1991]). A party whose evidence is excluded by a motion in limine has the responsibility of proffering sufficient evidence to preserve the issue on appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). We observe the State does not challenge the sufficiency of Marsh's proffer to the district court. We conclude the issue has been properly preserved for appeal.
We acknowledge our standard of review to be as stated in Evans:
"K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. State v. Leitner, 272 Kan. 398, Syl. ¶ 7, 34 P.3d 42 (2001); State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994).
"Errors in violation of a constitutional right of a party are governed by the federal constitutional error rule. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999). Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be found harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before the court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Leitner, 272 Kan. 398, Syl. ¶ 8; State v. Clark, 261 Kan. 460, 469, 931 P.2d 664 (1997); State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996).
"This court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. Mays, 254 Kan. at 486 (quoting State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 [1978]); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). '"Few rights are more fundamental than that of an accused to present witnesses in his own defense."' Gonzales, 245 Kan. at 699 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 [1973]). The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714." State v. Evans, 275 Kan. at 102.
With the above standards in place, we turn to the substantive issue: Did the district court err in concluding as a matter of law that circumstantial evidence connecting Pusch to the crimes, as outlined in Marsh's proffer, was irrelevant?
The general rule is that, unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999). We have also recognized the "probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each." State v. Scott, 271 Kan. 103, Syl. ¶ 2, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
Under the above rules of evidence, we have said: "Where the State relies on direct rather than on circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is incompetent absent some other evidence to connect the third party with the crime." (Emphasis added.) State v. Neff, 169 Kan. 116, Syl. ¶ 7, 218 P.2d 248, cert. denied 340 U.S. 866 (1950). We said in Neff that evidence of a third person's motive alone would not have any tendency to prove a material fact, but instead would serve to "confuse the jury, to permit [jurors] to indulge in speculations on collateral matters wholly devoid of probative value relative to who committed the [crime] and to divert their attention from the main issue they were sworn to try." 169 Kan. at 123. Thus understood, the so-called third-party evidence rule has limited application and is most assuredly subordinate to the general rules of evidence and the statutory definition of relevancy in K.S.A. 60-401(b).
Our recent decision in State v. Evans also helps to clarify the limited application of the rule excluding third-party motive evidence. In Evans, the State asserted it would call two eyewitnesses to testify Evans shot the victim. In opposing the State's motion in limine, the defendant proffered the testimony of several witnesses who said they saw a third person, Reed, holding the murder weapon immediately after the shot. Thus there was direct evidence Evans shot the victim, and there was circumstantial evidence Reed shot the victim. The district court excluded the circumstantial evidence under the third-party evidence rule. 275 Kan. at 97-98. We reversed, noting that, in terms of probative value, there was no distinction between direct and circumstantial evidence. 275 Kan. at 105. We further stated:
"The trial court's exclusion of the proffered evidence was inconsistent with substantial justice and infringed upon Evans' substantial rights. The evidence Evans sought to present in this case was more than just that someone other than the defendant may have committed the crime. There was evidence that linked Reed to the commission of the crimewitnesses saw Reed holding the gun immediately after the shot was firedand evidence that Reed subsequently admitted to shooting [the victim] and dumping his body. Under these circumstances, it was erroneous for the trial court to have excluded Evans from presenting the proffered circumstantial evidence." 275 Kan. at 106.
Both Neff and Evans clarify that, while evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime. A corollary rule is that circumstantial evidence connecting a third party to a crime will not be excluded merely because the State relies upon direct evidence of the defendant's guilt. In short, there is no bright line rule. Instead, there must be the sound exercise of judicial discretion dependent on the totality of facts and circumstances in a given case. Here, Marsh did not merely proffer evidence of Pusch's motive. Rather, he also proffered other evidence of Pusch's connection to the crime. This required the district judge to consider whether the evidence was relevant under K.S.A. 60-407(f), and his failure to do so constitutes error.
We recognize there are decisions of our court arguably suggesting we should apply the third-party evidence rule more broadly. See State v. Bedford, 269 Kan. 315, 320, 7 P.3d 224 (2000); State v. Bornholdt, 261 Kan. 644, 666, 932 P.2d 964 (1997); State v. Peckham, 255 Kan. 310, 321, 875 P.2d 257 (1994); State v. Calvert, 211 Kan. 174, 179, 505 P.2d 1110 (1973). To the extent these cases are inconsistent with Evans, they are disapproved.
There are additional reasons the district court's refusal to admit the third-party evidence constituted error.
First, even under the State's inflated view of the third-party evidence rule, the rule should not have been applied as to the capital murder and the aggravated arson charges. The State's evidence on those crimes was circumstantial, not direct, because Marsh specifically denied setting the fire leading to M.P.'s death. See Evans, 275 Kan. at 105-06.
There also is merit to Marsh's contention that, regardless of the propriety of the district court's order in limine, it erred in failing to admit the proffered evidence after Pusch testified at trial. Marsh argues that Pusch's testimony "opened the door" to evidence connecting Pusch to the crime.
A party, through testimony, may open the door for otherwise inadmissible evidence. State v. Bedford, 269 Kan. at 322; State v. McClanahan, 259 Kan. 86, 94, 910 P.2d 193 (1996). The admission of circumstantial evidence of a third person's culpability is constitutionally required where that third person is a government witness. 2 Jones on Evidence § 13:38 (1994) (citing the United States Supreme Court's decisions in Olden v. Kentucky, 488 U.S. 227, 102 L. Ed. 2d 513, 109 S. Ct. 480 [1988]; and Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 [1974]). In both Olden and Davis, the Court held a defendant's constitutional right of confrontation was violated upon a showing he was prohibited from engaging in "otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness." Olden, 488 U.S. at 231; Davis, 415 U.S. at 318. As has been noted, "[w]hat greater motive could a witness have to lie, than to deflect suspicion from himself or herself?" 2 Jones on Evidence § 13:38.
Evidence that a witness was in fact the person who committed the crime is almost always relevant and should be admissible where the witness testifies against the defendant. However, we did uphold a district court's refusal t