U.S. v. Corgain

• Decision Date: 07 June 1993
• Docket Number: No. 92-2350,92-2350
• Citation: 5 F.3d 5
• Parties: UNITED STATES of America, Appellee, v. William CORGAIN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 5

5 F.3d 5

UNITED STATES of America, Appellee, v. William CORGAIN, Defendant, Appellant.

No. 92-2350.

United States Court of Appeals, First Circuit.

Heard June 7, 1993.

Decided Sept. 27, 1993.

Lawrence P. Murray with whom Henry F. Owens III, by Appointment of the Court, and Owens & Associates, Boston, MA, were on brief, for defendant, appellant.

Sheila W. Sawyer, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for the U.S.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant-appellant, William Corgain, was tried and convicted for the robbery of two Boston-area banks on three occasions in the Fall of 1991. He was sentenced to 210 months in prison. 18 U.S.C. Sec. 2113(a). In this appeal he seeks reversal of his conviction, alleging trial errors. We affirm the conviction.

I.

On October 15, 1991, the Bank of Boston in Uphams Corner in Dorchester, Massachusetts was robbed by a lone male. The robber obtained over $1,000 in cash and checks from a teller named Patricia Driscoll. The next day, October 16, 1991, a lone male robbed the Shawmut Bank in Mattapan, Massachusetts, and obtained $2,750 in cash from a teller named Jeanette P. Parrell. On November 22, 1991, the same Bank of Boston in Uphams Corner, Dorchester, that had previously been robbed on October 15 was again robbed by a lone male. The robber obtained $5,200 in cash from Driscoll, the same teller involved in the previous incident. Corgain was apprehended, and charged with all three robberies.

II. Confrontation of Witness

Corgain complains that the district judge erroneously limited his attorney's cross-examination of Patricia Driscoll, the teller who witnessed the two Dorchester bank robberies. At a March 1992 lineup, Driscoll identified Corgain as the unmasked man who had robbed her during both the October 15, 1991, and November 22, 1991, incidents. At Corgain's trial in June 1992, the prosecutor showed Driscoll a photograph of the persons she had viewed in the lineup, and she once more identified Corgain as the man who had robbed her on both occasions.

During cross-examination, Corgain's attorney questioned Driscoll extensively on her ability to identify Corgain as the person who robbed her twice. Driscoll admitted that the robbery had happened "quickly" and that she had been "very nervous." Corgain's attorney also successfully drew out some inconsistencies between Driscoll's original descriptions of the bank robber and the actual physical characteristics of Corgain--she had originally described him as five feet eight or nine inches tall with a thin build, while Corgain in fact was six feet tall and of medium build. Driscoll also admitted that she had originally described the robber as "average" with no distinguishing marks.

Then, Corgain's attorney again showed Driscoll the photograph of the March 1992 lineup and asked her to describe the faces and distinguishing facial characteristics of the participants whom she had not identified as the bank robber, i.e., everyone other than Corgain. The government objected and was sustained by the court. Corgain's attorney then tried a couple of narrower questions, asking Driscoll to describe the faces of two particular participants in the lineup photograph. After each of these questions, the government objected and was sustained. At a sidebar conference, the court questioned the relevance of the line of questioning, saying that Driscoll's ability to identify the robber did not turn on her ability to verbally describe the others in the lineup photo. The court also noted that Corgain's attorney had developed considerable other material from which to argue to the jury that Driscoll's identification was faulty.

Corgain now contends that the exclusion of this line of questioning violated his Sixth Amendment right to confront witnesses against him. U.S. Const. Amend. VI; Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 482-83, 102 L.Ed.2d 513 (1988) (circumscribing defendant's cross-examination of government witnesses implicates Sixth Amendment's confrontation clause). He argues that the proposed cross-examination was relevant, and should have been allowed because Driscoll's ability to describe the other persons at the lineup would have cast light on her ability to distinguish Corgain from the others, and hence on the reliability of her identification of Corgain. See Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (confrontation clause rights violated when defendant prevented from exposing jury to facts from which they could appropriately draw inferences about witness's reliability).

We do not find reversible error. The Sixth Amendment right to confront adverse witnesses, fundamental as it is, United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir.1986) (citing Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931)), does not allow unlimited cross-examination of an adverse witness. "[T]rial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, ... interrogation that is ... only marginally relevant." Brown v. Powell, 975 F.2d 1, 3-4 (1st Cir.1992) (citing Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435).

The judge here could reasonably conclude that Driscoll's ability verbally to describe those individuals in the lineup photo whom she did not identify as the robber was of marginal relevance to the primary issue raised by her testimony, namely, her ability to identify Corgain as the man who robbed the bank at which she worked. See United States v. Malik, 928 F.2d 17, 20 (1st Cir.1991) (trial judge did not abuse discretion by curtailing cross-examination the relevance of which was not clear).

Corgain argues that Driscoll's answer would have revealed what particular facial characteristics caused her to exclude the others and identify Corgain. It is unclear, however, how material or useful Driscoll's thoughts along these lines would have been. The key question was whether Driscoll reliably recognized Corgain as the robber, not whether the others had certain facial characteristics or whether Driscoll could extemporaneously describe them.

The jury had the lineup photo before it as an exhibit. If Corgain wished to convey that all the participants looked so much alike as to render Driscoll's identification of the robber problematic, defense counsel could have sought leave to reformulate his questions so as more obviously to elicit that point, or else waited to argue to the jury from the photo exhibit itself both the resemblance and difficulty of recognition. If Corgain's attorney was instead merely testing Driscoll's ability to describe a person's appearance verbally, the judge could reasonably question the relevance of the exercise. When recognizing someone, people often rely upon subtle factors not easily reducible to words. Lineups are employed for this reason--verbal descriptions by themselves being of limited use to identify the person seen at the time of a crime. In any event, the court's ruling did not prevent defense counsel from making any argument he wished to the jury based upon an asserted difficulty of distinguishing between the people portrayed in the photo exhibit of the lineup.

We have read the full cross-examination of Driscoll and are unable to say that defense counsel was denied a fair and adequate opportunity to cross-examine her. Exclusion of the proposed questions did not leave the jury without "sufficient information concerning formative events to make a 'discriminating appraisal' of [the] witness's motives and bias." Twomey, 806 F.2d at 1140. Defense counsel was able to elicit considerable information challenging Driscoll's ability to identify Corgain, including the facts that: (1) Driscoll viewed the robber for less than three minutes at each incident; (2) Driscoll described her own condition during the first robbery as "very upset, almost hysterical;" and (3) there were some inconsistencies in the way she described the robber after each of the two incidents.

We conclude that the court did not abuse its discretion in excluding these particular questions. See United States v. Concemi, 957 F.2d 942, 947 (1st Cir.1992) (trial judge need not permit " 'unending excursions into each and every matter touching on veracity if a reasonably complete picture has already been developed.' ") (citation omitted). Cf. Brown, 975 F.2d at 3-4 (confrontation right not violated by court's decision to bar defense counsel from eliciting testimony that witness had avoided potential life sentence by testifying, where jury could infer that witness received some leniency in exchange for testimony, and where defense counsel had challenged witness's credibility on other grounds).

III. Abandonment of Judicial Impartiality

Corgain contends that the district judge prejudiced Corgain by exhibiting partiality for the prosecution. Jeanette P. Parrell was working as a teller at the Shawmut Bank in Mattapan, Massachusetts during the robbery on October 16, 1991. Like Driscoll, Parrell was able to observe the robber's face and physique at the time of the crime. During direct examination, the...