397 F.2d 621 (D.C. Cir. 1967), 20723, Wynn v. United States

Docket Nº:20723.
Citation:397 F.2d 621
Party Name:Walter WYNN, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 16, 1967
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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397 F.2d 621 (D.C. Cir. 1967)

Walter WYNN, Jr., Appellant,


UNITED STATES of America, Appellee.

No. 20723.

United States Court of Appeals, District of Columbia Circuit.

November 16, 1967

Argued July 14, 1967.

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Mr. Jerome B. Libin, Washington, D.C. (appointed by this court) for appellant.

Mr. Robert S. Brady, Sp. Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker and William L. Davis, Asst. U.S. Attys., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.


Following the discovery on Thanksgiving morning, November 25, 1965, that a checkwriter and a calculator had been burglarized from a plumbing shop, John W. Robinson, a neighbor, reported to police that somewhat earlier on that morning he had seen appellant, carrying a tabulator 1 on his shoulder, exit from the establishment by the back door. 2 Appellant

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was subsequently indicted for housebreaking and larceny, 3 and Robinson became the Government's principal witness at the trial. The jury-- obviously, the record discloses, on Robinson's testimony-- found appellant guilty as charged.

On his direct examination, Robinson identified appellant as the person he had observed departing the victimized premises with the tabulator. This identification he aided by testimony that he had known appellant as 'Cutie Boy' for nearly two years because he lived with Louise Gaither, a tenant in Robinson's rooming house. On cross-examination, Robinson denied a previous argument with appellant over the alleged theft of some whiskey and an accompanying statement that he would 'get even' with appellant for that theft.

Appellant testified that he spent the night the offenses occurred with Mrs. Gaither, but she was not called as a witness. In response to his counsel's questions, he also said that about three days after Thanksgiving Robinson had accused him of stealing some whiskey, and as he was relating the ensuing events the Government objected. At a bench conference then convened, defense counsel stated that his objective was a showing that Robinson was biased against appellant. The trial judge sustained the objection, pointing out that the testimony related to a happening subsequent to Robinson's report to the police, 4 and ruling that post-Thanksgiving incidents could not be developed. The judge also barred comment to the jury on occurrences after the date of the offenses.

This, we hold, was error and, finding resulting prejudice to appellant, we reverse his conviction and remand the case for a new trial. And with this disposition required, we explore, for the guidance of the District Court and counsel, another problem likely to recur on the retrial.


Appellant's cross-examinational hypothesis, communicated at the bench conference, was that Robinson's testimony was a manifestation of bias against appellant. His counsel's effort to prove an altercation over the allegedly stolen whiskey was well calculated to support that theory. We think it clear that, for the purpose announced, whether or not for any other, appellant was entitled to lay the episode bare.

'Bias of a witness, ' we have said, 'is always relevant.' 5 A party's right to undertake demonstration of the bias of his adversary's witness coexists on the same plane with the adversary's prerogative to use the witness. 6 Such an effort may properly solicit over a wide range any information of potential value to the trier of fact in the assessment of credibility. 7 A previous quarrel between the witness and the party testified against readily suggests the possibility

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of residual hostility, 8 and the admissibility of extrinsic testimony to establish the event seems unquestioned. 9 The trial judge, of course, retains control over the testimonial scope, 10 but a judicial discretion soundly exercised contemplates that there will be ample latitude for pertinent inquiry. 11

We deem immaterial the fact that the controversy over the whiskey occurred, if at all, three days after commission of the offenses laid at appellants doorstep. Appellant's effort was to show Robinson's animosity as a possible explanation, not for the report he made to the police, but for the damaging testimony he gave at the trial. Robinson's emotional bent on the witness stand, and not at some point prior to the offenses, constituted the important subject for investigation. 12

The affair inquired of was not as a matter of law so remote in time as to lack materiality for this purpose, 13 and it was appellant's prerogative to risk the accompanying reference to another crime.

In our view, the effect of the exclusionary ruling was to cut short a legitimate defensive endeavor. But this holding does not completely dispose of the matter, for unless the ruling operated detrimentally to appellant we would be obliged to disregard it. 14 Robinson, however, was the Government's star witness; his testimony aside, appellant stood unlinked with the crimes. On the other hand, while appellant emphatically denied complicity, there was no evidence, save from his own lips, to support his alibi claim. With credibility so vital to resolution of the issue their diametrically opposed versions generated, we think the probability of injury is so grave that appellant must be afforded a new trial. 15

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In support of his alibi defense, appellant told the jury that he shared Mrs. Gaither's quarters over the eve of Thanksgiving until somewhat after the crimes were uncovered. He said, too, that he was thereafter in the company of Mrs. Gaither, and from time to time of others he named, until well into the afternoon of Thanksgiving Day, but none of them was called as a corroborating witness. This the prosecuting attorney emphasized...

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