Jenkins v. Wainwright, 84-3471
| Decision Date | 25 June 1985 |
| Docket Number | No. 84-3471,84-3471 |
| Citation | 763 F.2d 1390 |
| Parties | Milton Larry JENKINS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Howard W. Skinner, Federal Public Defender, Jacksonville, Fla., for petitioner-appellant.
Gary Lee Printy, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before VANCE and ANDERSON, Circuit Judges, and HENLEY *, Senior Circuit Judge.
Petitioner Milton Larry Jenkins was convicted of third degree murder in a Florida state court in 1979. His case is before this court on appeal from the district court's denial of the writ of habeas corpus. We affirm the district court's judgment because we conclude that Jenkins has presented no meritorious claim.
In December 1978 an employee of the Big Star grocery in Jacksonville, Florida, was killed during a robbery. The crime was committed by a lone gunman wearing a ski mask and dark clothing. In March 1979, Jenkins and his stepsons Tony and Richard Schiver, aged 18 and 16 respectively, were arrested in connection with the crime. Shirley Hudson, a girlfriend of both Jenkins and the Schivers, cooperated with the police and furnished much of the information police used to make the arrests.
Both Jenkins and Richard Schiver were charged with first degree murder. Richard's trial was scheduled one week after Jenkins' trial. Tony Schiver testified at Jenkins' trial under grant of immunity. Richard Schiver and Shirley Hudson also testified for the state at Jenkins' trial, but both stated that they had made no deals with the prosecutor. Shirley was never charged with any crime, and Richard later pled guilty to a reduced charge of third degree murder. He received two years' probation as a youthful offender, adjudication of guilt withheld.
Jenkins was convicted of third degree murder and sentenced to 30 years in prison. After exhausting his state remedies, he filed a habeas corpus petition in the district court. On June 11, 1984, the court adopted the magistrate's findings and denied the habeas petition. Jenkins appealed to this court, and the district court granted Jenkins' request for a certificate of probable cause.
Jenkins raises three issues on appeal. First, he claims that the trial court impermissibly restricted cross-examination of Richard Schiver and Shirley Hudson on their reasons for cooperating with the state. Second, he contends that the Schiver brothers' testimony was inadmissible as the unattenuated by-product of police misconduct at the time of their arrests. Last, he contends that the exclusion of death penalty opponents from his jury at the guilt phase of the trial violated his right to a fair, impartial and representative jury. We will address each contention briefly.
According to Jenkins, the trial court abridged his sixth amendment right of confrontation by limiting the cross-examinations of Richard Schiver and Shirley Hudson. Both witnesses were represented by counsel who were present during their testimony at Jenkins' trial. Jenkins' attorney wished to elicit from both witnesses any and all information they had received from either the prosecutor or their lawyers concerning the possibility of deals or leniency. After conferring with all the lawyers and both witnesses outside the jury's presence, the judge ruled that the defense could ask about any deals, promises or indications of leniency given to the witnesses by the state, but prohibited questions on the specific advice given to them by counsel because those communications were protected by the attorney-client privilege. Jenkins argues that questions concerning advice received by the witnesses were crucial in establishing bias. The attorneys, he argues, could have received hints or offers from the state which they passed along to the witnesses, or they could have told their clients what indications they had about the state's willingness to reward them for testifying.
The Supreme Court has repeatedly acknowledged that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974) (citation and footnote omitted). This court has long recognized the particular importance of searching cross-examination of witnesses who have substantial incentive to cooperate with the prosecution. See, e.g., United States v. Alonso, 740 F.2d 862, 874-75 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 928, 83 L.Ed.2d 939 (1985); United States v. Kopituk, 690 F.2d 1289, 1336-37 (11th Cir.1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983); United States v. Elliott, 571 F.2d 880, 908-11 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Onori, 535 F.2d 938, 945-46 (5th Cir.1976); Grant v. United States, 368 F.2d 658, 660-61 (5th Cir.1966). We do not believe that the defense was hampered by the trial court's ruling in this case. The court must permit cross-examination sufficiently thorough to satisfy the sixth amendment, but once that threshold is passed, limitations on questioning are within the sound discretion of the trial court. Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir.1981). Although it is difficult to state precisely the proper scope of cross-examination, we follow the common-sense principle suggested by the Supreme Court:
[T]o make any such inquiry [into reasons for bias] effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.
Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. at 1111 (quoted in United States v. Elliott, 571 F.2d 880, 909 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)).
In this case the trial judge permitted Jenkins' attorney to "inquire as to every reason [the witness] knows of and thinks why [the witness] should testify now." The judge prohibited only questions about privileged communications between the witnesses and their lawyers. A review of the trial transcript reveals that defense counsel conducted an extensive and pointed...
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