Springer v. United States

• Decision Date: 06 June 1978
• Docket Number: No. 11958.,No. 12240.,11958.,12240.
• Citation: 388 A.2d 846
• Parties: Herbert SPRINGER, Appellant, v. UNITED STATES, Appellee. Reginald TURNER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 846

388 A.2d 846

Herbert SPRINGER, Appellant, v. UNITED STATES, Appellee.

Reginald TURNER, Appellant, v. UNITED STATES, Appellee.

No. 11958.

No. 12240.

District of Columbia Court of Appeals.

Argued January 24, 1978.

Decided June 6, 1978.

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Howard J. Schulman, Baltimore, Md., of the bar of the State of Maryland, pro hac vice, by special leave of court, with whom James E. Crawford and Nelson Deckelbaum, Washington, D. C., were on the brief, for appellant Springer.

Patrick J. Christmas, Washington, D. C., for appellant Turner.

James F. Hibey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and Eugene M. Propper, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and YEAGLEY, Associate Judges.

NEWMAN, Chief Judge:

Appellants were convicted by a jury of conspiracy to commit first-degree murder and of solicitation to commit a felony, to wit: first-degree murder. On appeal they each claim: (1) that prejudicial error resulted from the procedures utilized by the trial court in admitting into evidence and (placing before the jury) tape recordings — and transcripts thereof — of conversations between Springer and Detective Bagley, an undercover Metropolitan Police Department (MPD) detective; and (2) that the trial court deprived them of their Sixth Amendment right to confrontation by unduly limiting the cross-examination of a key government witness on the issue of bias.¹ After setting forth the facts in Part I, we discuss the issue of admission of the tapes and transcripts in Part II. While concluding that no reversible error was committed in this case by the procedures used to admit them into evidence, we lay down guidelines for use by the trial court in the future in this area. In Part III, we discuss the cross-examination issue, find substantial prejudice to both appellants from the trial court's erroneous curtailment of cross-examination, and reverse the conspiracy count of Springer's conviction and both counts on which Turner stands convicted²

I

In January 1976, appellant Reginald

Turner met with Clarence W. McFarland, whom he had known for approximately eight years, and offered him a "proposition." Turner told McFarland that his friend, appellant Herbert Springer, was willing to pay $10,000 for the murder of his wife. To corroborate his story, Turner called a store on Eighth Street, N.W., and while McFarland listened in on the conversation, received confirmation from someone who was identified as "Herbie," that he still wanted his wife killed. "Herbie" declared that he didn't care how it was done, and that he was willing to pay $10,000. McFarland told Turner he was interested in the "proposition."

At some point during the next month, Turner and McFarland decided to ask Springer for part of the money in advance. When Turner failed to procure an agreement from Springer for advance payment, McFarland broke off all discussions about the killing. In May 1976, McFarland was again approached by Turner, who indicated that Springer still wanted to have his wife killed. Several days thereafter, Turner showed McFarland a piece of paper on which Springer had written his wife's route to work, the make of her car, and its license plate numbers. Later in May, McFarland and Turner met Springer in a nightclub. When Turner asked Springer if he still wanted the job done, Springer answered yes, stating that he didn't care what method was selected.

Thereafter, becoming concerned that he was being double-crossed by both Turner and Springer, McFarland recounted the murder proposition to an FBI agent with whom he was then working as an informant on an unrelated case. That agent alerted MPD Homicide Squad Commander Joseph O'Brien to the plan. Captain O'Brien assigned Detective Clayton T. Bagley to pose as a killer-for-hire.

Bagley contacted Springer by phone on July 27, 1976, identifying himself as "Lank," a hit man, and confirmed that Springer still wanted the murder commited and was willing to pay $10,000 for that purpose, but with no "front money." At the end of the conversation, which was taped, the two agreed to meet the next day at Ninth Street and Constitution Avenue, N.W. During the course of the conversation the following day, which was also taped, Springer stated that he wanted the murder to look like an accident. He gave Bagley his wife's name, description, address, place of employment, make of car, and license plate number.

On July 29, 1976, the police contacted Mrs. Springer and informed her of the murder scheme. After identifying her husband's voice on the tapes, she agreed to cooperate with the police's feigned execution of the murder scheme. She provided the police with rings that she always wore, which they planned to show to Springer as proof of Mrs. Springer's death.

Bagley phoned Springer to announce his wife's death and, in a third taped conversation, insisted on payment.³ Springer, after expressing reluctance to make payment without positive proof of his wife's death, finally agreed to pay $100 — contingent on viewing his wife's rings. A short time later when Bagley showed Springer the rings and received the $100 from him, Springer was placed under arrest.

Clarence McFarland was a key government witness at trial. McFarland's testimony traced his involvement in the murder scheme from his initial contact with Turner; through the various intervening acts; culminating with his eventual withdrawal from the plan and disclosure of the scheme to an FBI agent. On direct examination, McFarland stated that he had never intended to go through with the murder, but merely had wanted to make some money by "conning" Springer.

During cross-examination, appellant Springer's counsel attempted to elicit whether McFarland was paid for the information he had disclosed to the FBI in this case. McFarland stated that he had received neither payment, nor promise of payment, for any information he had provided in this case. The trial court cut off all inquiry into McFarland's expectation of or actual receipt of payments for serving as an informant for law enforcement agencies in other cases.

The day following McFarland's testimony, Springer's counsel proffered the testimony of an FBI agent who was prepared to testify that in August 1976, after Springer and Turner were arrested, McFarland did receive payment from the FBI for his disclosures in this case. He would have further testified that because the payment was included in a sum paid for work on an unrelated case, McFarland was unaware that he had received any money for information in this case. Following the proffer, the trial court refused to reconsider its prior ruling and to permit inquiry into McFarland's status as a paid informant for the FBI, or into any matter directly related thereto.

During the testimony of Detective Bagley, tape recordings (and transcripts thereof) of the three conversations between Springer and Detective Bagley wherein Bagley posed as a "hit man" were admitted into evidence over objection by both appellants.⁴

Bagley testified to recording the conversations in question and to labeling the original tapes of the conversations with his initials and the date of each conversation. In addition, Bagley stated that he had made a duplicate of the tape in order to have all three conversations on one tape and in an attempt to amplify the original tapes. Bagley testified to his preparation of a transcript of the taped conversations, made by listening to the tapes, and also to his positive comparison of both the original and the duplicate tapes with that transcript.

The original tape of the July 27 phone call, without accompanying transcripts, was then played for the jury. The trial court (not having listened previously to the tape outside the jury's presence) compared the transcript prepared by Bagley with the tape during the playing of them before the jury. Because of problems with the audibility of the original tape, the court excused the jurors, and made audibility comparisons between the original and duplicate tapes. The court then ruled that the original tapes, played without amplification, and the transcripts, which he found "follow[ed the tape] word for word," would be admitted.

When the jurors returned, they received copies of the transcript which they were permitted to use while the tapes were being played. Following the playing of the tapes, the transcripts were collected from each juror. The court gave no instruction (and none was requested) cautioning the jurors that the tapes were primary evidence and that the transcripts were to be used merely as an aid in listening to them.

During a recess which followed the playing of the tapes for the jurors, Springer's counsel compared the tapes with the version of the transcript which had been supplied to the jury. As a result of this comparison, counsel pointed out what he believed was a major discrepancy between a line in the transcript which had Springer saying, "It's going to be done like an accident," and the tape portion which counsel believed was unintelligible. In response, the trial court suggested that counsel, during closing argument, urge the jury to listen again to the tapes while deliberating and that counsel argue to the jury the question of whether that tape portion was in fact unintelligible.

In instructing the jury, the court made it clear that both the tapes and transcripts were in evidence. Although the transcripts were sent into the jury room with the other exhibits, the tape recordings were not. The court instructed the jury that they could use the transcripts during deliberations, and that if the jury wanted to hear the tapes again, the foreman should deliver a written request to the Marshal.

II

The admission of tape recordings at trial is a matter committed to the sound discretion of the trial court. Monroe v....