Chipman v. Mercer

• Decision Date: 04 September 1980
• Docket Number: No. 79-2621,79-2621
• Citation: 628 F.2d 528
• Parties: 7 Fed. R. Evid. Serv. 1283 Herbert William CHIPMAN, Petitioner-Appellee, v. James MERCER, Chief Probation Officer, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 528

628 F.2d 528

7 Fed. R. Evid. Serv. 1283

Herbert William CHIPMAN, Petitioner-Appellee, v. James MERCER, Chief Probation Officer, Respondent-Appellant.

No. 79-2621.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1980.

Decided Sept. 4, 1980.

Arthur G. Scotland, Sacramento, Cal., for respondent-appellant.

Gayle C. Guynup, Sacramento, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WRIGHT, KENNEDY and HUG, Circuit Judges.

KENNEDY, Circuit Judge:

Herbert Chipman was convicted of burglary in state court. Chipman's conviction was upheld by the Third District Court of Appeal of the State of California, and a petition for hearing was denied by the California Supreme Court. Chipman then filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California. The district court granted the petition on the ground that Chipman's sixth amendment right to confront witnesses was violated by the state trial court's refusal to permit cross-examination of a witness for bias. We affirm.

The name of the witness in question was Mrs. Ketchum. She testified that Chipman was near the scene of the burglary under suspicious circumstances. There was no other eye witness testimony. Circumstantial evidence linked Chipman to the burglary, but Mrs. Ketchum's testimony contributed significant additional information. She testified that she lived in the neighborhood and that on the night of the burglary she heard footsteps proceeding to and, later, from the victim's house. She said she recognized them as Chipman's because of the noise made by the platform shoes he often wore. She testified further that from her bedroom window she recognized Chipman clearly and saw him running while carrying a guitar case. A valuable guitar in its case was one of the items stolen from the victim's house.

Counsel for the defense undertook an extensive cross-examination of Mrs. Ketchum to test her credibility, bias, and memory. During the examination, counsel asked Mrs. Ketchum if she had ever conversed with a neighbor named Mrs. Ford. A relevance objection being interposed, there was an extensive offer of proof. Defendant's counsel said the question bore upon possible bias and prejudice that Mrs. Ketchum entertained. Counsel initially stated he wanted to show bias because Mrs. Ketchum disliked Mrs. Ford, who was Chipman's aunt. There was a later and more elaborate offer of proof permitted by the trial court, however, both with reference to the first question about Mrs. Ford and other questions pertaining to events involving Mrs. Ford, the defendant, and the witness Ketchum. The defense offered to show that Mrs. Ford operated a residential care facility for mentally ill and retarded persons. The facility was located across the street from Mrs. Ketchum's house. Counsel offered to prove that Ketchum knew Chipman had lived in the facility, that Ketchum had previously accused residents of possessing stolen property, and that Ketchum had complained to the neighbors and circulated a petition to city officials in order to close the facility because it was not proper for the neighborhood and had undesirable occupants. It was the defense theory that by reason of her attitude and her former actions, Mrs. Ketchum might be hostile to or prejudiced against persons who had occupied the Ford house, including the defendant Chipman, and, moreover, that she stood to benefit if a former resident of the facility were convicted of burglary. The trial court rejected this more extensive offer of proof as well, stating the evidence would be excluded under Cal.Evid.Code § 352 ¹ on the ground that it was not probative of any personal hostility towards the defendant. The court did, however, permit defendant's counsel to cross-examine Ketchum about her possible general racial bias.

The Sixth Amendment guarantees the right of a defendant to confront the witnesses against him or her. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). See also Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). This right to confrontation is embodied substantially by the right to cross-examine adverse witnesses. See Davis, supra, 415 U.S. at 315-16, 94 S.Ct. at 1109-1110; Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978). As this court said in Burr v. Sullivan, 618 F.2d 583, 586 (9th Cir. 1980), "The right to confront witnesses guaranteed by the sixth and fourteenth amendments includes the right to cross-examine witnesses to show their possible bias or self-interest in testifying." Although, a trial court normally has broad discretion concerning the scope of cross-examination, see pp. 530, 531 infra, a certain threshold level of cross-examination is constitutionally required, and in such cases the discretion of the trial judge is obviously circumscribed. As the court in United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), said:

While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.

Id. at 908, quoting United States v. Bass, 490 F.2d 846, 858 n.12 (5th Cir. 1974). When the cross-examination relates to impeachment evidence, the test as to whether the trial court's ruling violated the sixth amendment is "whether the jury had in its possession sufficient information to appraise the biases and motivations of the witness." United States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979); Skinner v. Cardwell, supra, 564 F.2d at 1389.

Confrontation questions must be resolved on a case-by-case basis based on examination of all circumstances and evidence. United States v. Snow, 521 F.2d 730 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1976). Neither the confrontation clause nor the case-by-case approach to resolving confrontation questions should be interpreted to permit persons convicted in state proceedings to use putative sixth and fourteenth amendment claims as a vehicle for obtaining federal review of evidentiary questions properly left to resolution by the state courts. Two limiting principles can be identified, and others may be elaborated in appropriate cases. First, the confrontation clause applies to the essentials of cross-examination, not to all the details of its implementation. The provision should not become the source of a vast and precise body of constitutional common law controlling the particulars of cross-examination. From this follows a second, related concept: trial courts have broad discretion concerning the proper extent of cross-examination, to which appellate courts owe deference. See, e. g., United States v. Bleckner, supra, 601 F.2d at 385; Skinner v. Cardwell, supra, 564 F.2d at 1388-89 (federal courts); Curry v. Superior Court, 2 Cal.3d 707, 715, 87 Cal.Rptr. 361, 470 P.2d 345 (1974); Cain v. State Farm Mutual Auto. Ins. Co., 47 Cal.App.3d 783, 798, 121 Cal.Rptr. 200 (Ct.App.1975); People v. Fusaro, 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368 (Ct.App.1971) (California courts).

We have recognized that "some topics may be of such minimal relevance that the trial court would be justified either in totally prohibiting cross-examination about them or in allowing only limited questioning." Skinner v. Cardwell, supra, 564 F.2d at 1389. See also United States v. Nogueira, 585 F.2d 23, 25-26 (1st Cir. 1978). Davis v. Alaska and our own precedents do not require a trial court to permit cross-examination on topics of very slight or marginal relevance simply upon the theory that bias or prejudice might be disclosed. Although it tips the scales in favor of permitting cross-examination, the confrontation clause does not prevent the trial court from weighing the offer of proof to determine its probative value to the trier of fact and its probable effect on fair and efficient conduct of the trial. Here, the ruling of the trial court no doubt was intended both to expedite the case and to avoid introduction of collateral issues that might distract the jury or commit its members to one side or the other of an emotional and potentially an extraneous issue, i. e., the desirability of having an ordinary home in a residential neighborhood used as a facility for the retarded. The relevance of the proposed line of examination on the grounds of bias and prejudice was such, however, that we find the ruling did violate the defendant's right to confront witnesses.

Some kinds of animosities are so unlikely to color a witness' testimony that the trial judge might properly exclude testimony regarding them. For example, the sole ground for attempting to show bias may be that the witness dislikes a relative of the defendant for reasons unrelated to the defendant, such as an ordinary neighborhood dispute. Absent further facts justifying questioning, the confrontation clause arguably might not require cross-examination on this subject. Here, the grounds for a suspicion of bias were considerably more extensive and better founded. ²

The present case involves a potential bias different from that in some other decisions, where the bias sought to be proved was that the witness favored the prosecution in hopes of better treatment for his own crimes. See, e. g., Davis v. Alaska, supra; Burr v. Sullivan, supra. These instances of potential bias appear with such frequency that the necessity to permit cross-examination should be readily apparent to the trial court. We concede that the instant case may not have presented such a routine application of the confrontation clause. Counsel have not directed us to, and we have not discovered, a case with...