Dorsey v. Parke

• Decision Date: 10 April 1989
• Docket Number: No. 88-5792,88-5792
• Citation: 872 F.2d 163
• Parties: , 57 USLW 2627, 27 Fed. R. Evid. Serv. 1320 Michael Edward DORSEY, Petitioner-Appellee, v. Al C. PARKE, Warden, Northpoint Training Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 163

872 F.2d 163

57 USLW 2626, 57 USLW 2627, 27 Fed.

R. Evid. Serv. 1320

Michael Edward DORSEY, Petitioner-Appellee, v. Al C. PARKE, Warden, Northpoint Training Center, Respondent-Appellant.

No. 88-5792.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1989.

Decided April 10, 1989.

Phaedra Spradlin (argued), Hays & Hays, Winchester, Ky., for Michael E. Dorsey.

Michael L. Harned, Asst. Atty. Gen. (argued), Frankfort, Ky., for Al C. Parke.

Before MERRITT and MILBURN, Circuit Judges, and LIVELY, Senior Circuit Judge.

MERRITT, Circuit Judge.

This is an appeal from a District Court Order granting the writ of habeas corpus. The writ has been stayed pending appeal. The issue before us is whether petitioner Michael Edward Dorsey was denied his federal constitutional right to confront a key witness against him in his state trial for burglary. Because we conclude that Dorsey's constitutional right was not abrogated, we vacate the judgment below.

I.

Dorsey was convicted of second degree burglary by a jury verdict in the Jefferson Circuit Court of Kentucky. He then pled guilty to being a persistent felony offender, and was sentenced on the two convictions to a term of 12 years. Dorsey pursued his appeal, without success, in Kentucky's Court of Appeals and Supreme Court. He then filed a petition for habeas corpus relief in federal court.

Dorsey had been arrested, along with his cousin Gerald Campbell, in connection with the burglary of a home. Campbell became a key witness against Dorsey, and the impeachment of his testimony was crucial to Dorsey's defense. The District Judge held that Dorsey's convictions were obtained in violation of his Sixth Amendment right to confront witnesses against him because Dorsey's attorney was not allowed to impeach Campbell's credibility by showing emotional instability, low level of mental functioning, and intellectual malleability--in short, by showing that Campbell lacked the intellectual and emotional stamina to resist police pressures to testify to Dorsey's guilt. Error was founded (1) on the trial judge's limitation of cross-examination of Campbell and (2) on her ruling that records of Campbell's therapy in a mental health facility were inadmissible as privileged.

The record is replete with difficulties, not the least of which being its presentation as a videotape. First, the videotape is marginally audible at times, particularly when the trial judge and the attorneys whispered their sidebar conferences and whenever two or more participants spoke at once. Second, we are not equipped to produce efficiently the written transcription on which careful review must be founded. Finally, the parties did not have our transcription--indeed, they seemed not to have any transcription--rendering oral argument about the events of the trial an exercise in futility. Though we note that Kentucky's experiment in videotaping trials is receiving praise in the press, "Court Reporters on Way Out?: Courts Experiment with Audio-Video Machines," ABA Journal 8 (Feb. 1989), we wish to call attention to the acute difficulties this innovation presents to courts attempting to fulfill their function of judicial review.

Fortunately, we are able to discern enough of the proceedings at Dorsey's trial to rule on his constitutional claim. The trial judge imposed limits on defense's cross-examination of two witnesses, Campbell and his attorney Sarah Wiler, but, since the District Court's ruling does not reach the limits placed on cross-examination of Wiler, we need consider only the cross-examination of Campbell.

Campbell was charged with the burglary but he was diverted to the youthful-offender program on the Commonwealth's condition that he testify against Dorsey. The burglary charges were eventually dismissed. Before the Dorsey trial Campbell was indicted on a second, unrelated robbery charge and was allowed to plead to a misdemeanor. All these facts except the guilty plea were elicited in testimony before the jury.

Dorsey's attorney then sought to show that Campbell's mental abilities were so shaky that he was particularly susceptible to police intimidation or suggestion. At this point the trial judge imposed limits on counsel's cross-examination of Campbell, prohibiting questions about Campbell's mental stability and particularly about a suicide attempt he made some time after promising to testify against Dorsey. Nevertheless, Dorsey's attorney was allowed to establish that Campbell had been treated at a mental health facility because of a suicide attempt made after he gave his statement implicating Dorsey to the police. The fact that this testimony came in despite the trial judge's earlier ruling that it would not be admitted moots any constitutional defect in that earlier ruling. The focus of defense counsel's cross-examination then shifted to medical records made by a mental health facility at which Campbell obtained treatment after his suicide attempt. The trial judge barred admission of these records on the grounds that they were privileged, and instructed Dorsey's attorney that she must limit further questioning about Campbell's mental stability to the circumstances in which he made his statement incriminating Dorsey. The defense did not bring any witness to testify to Campbell's mental ability, despite the trial judge's indication that she would admit such testimony.

Dorsey's attorney was allowed to cross-examine Campbell about the medical records on avowal. Campbell denied that the depression he suffered at that time resulted from his promise to testify against Dorsey; stated he did not remember telling, and then denied telling, the facility's personnel that he had memory problems; and denied that he had a history of drug overdoses. Once he understood what the term "manipulated" meant, he rejected the clinic's conclusion that he was easily manipulated by others. The District Court misunderstood the last of these exchanges, no doubt because of the awkwardness of reviewing a videotape transcript, to involve an endorsement and then a denial of the facility's clinical conclusion. Memorandum Opinion at 131.

We conclude that, though the proceedings below did not go smoothly and contained some inexplicable features, this record does not present us with any constitutional defect. We discuss the trial judge's rulings on the oral cross-examination of Campbell and on the medical records separately.

II.

A. Limits Placed on Cross-Examination of Campbell. We have combed the record for any facts, other than those recorded in the mental health facility's records, which Dorsey's attorney knew or hoped she might elicit by cross-examining Campbell. Defense counsel never suggested that she knew any such facts or that she suspected facts which she hoped to elicit on cross. We must conclude that the strategy of the defense in the cross-examination of Campbell, besides asking him questions which were in fact permitted and confronting him with the medical records, was the general one of exposing Campbell's demeanor to the jury while asking him questions that suggested his emotional and intellectual susceptibility to police pressure.

This case thus presents a narrow, and we believe novel, question: does the Sixth Amendment guarantee to a criminal defendant the right to undermine the credibility of a government witness by cross-examination into a relevant subject that has already been broached on cross-examination of that witness, where the purpose of the questioning is not to establish additional facts but to expose the demeanor of the witness? We have found no case, and no case has been cited to us, that holds such cross-examination to be guaranteed to criminal defendants by the Sixth Amendment. Indeed, the law on the books today strongly suggests that the Sixth Amendment does not curtail the discretion of a trial judge in this narrow area.

In reviewing a trial court's decision to limit cross-examination, we will do well to recall Judge (now Justice) Kennedy's caveat: "The [confrontation] provision should not become the source of a vast and precise body of constitutional common law controlling the particulars of cross-examination." Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir.1980). Our task is to apply established general principles to the facts of this case, not to craft ever more refined and particularized rules.

A "primary interest" secured to criminal defendants by the Sixth Amendment's confrontation clause is the right to cross-examine hostile witnesses. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). This right has been held to apply to state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The importance of this guarantee to the truth-seeking process of the criminal trial is undeniable. But the Sixth Amendment has not been construed to give criminal defendants absolute control over cross-examination. Rather, courts have striven to distinguish between the core values of the confrontation right and more peripheral concerns which remain within the ambit of the trial judge's discretion. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); United States v. Atwell, 766 F.2d 416, 419-20 (10th Cir.), cert. denied, 474 U.S. 921, 106 S.Ct. 251, 88 L.Ed.2d 259 (1985). Beyond certain "essentials of cross-examination," Chipman v. Mercer, 628 F.2d at 531, the right to cross-examine is subject to limits imposed by the trial court in the exercise of its discretion. United States v. Atisha, 804 F.2d 920, 929 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987); Stevens v. Bordenkircher, 746 F.2d 342, 346 (6th Cir.1984); Chipman v. Mercer, 628 F.2d at 530. See also United States v. Garrett, 542 F.2d 23, 25 (6th Cir.1976). Moreover, even when the core values...