U.S. ex rel. Scarpelli v. George

• Decision Date: 20 September 1982
• Docket Number: No. 81-2806,81-2806
• Parties: 11 Fed. R. Evid. Serv. 620 UNITED STATES of America ex rel. Gerald SCARPELLI, Petitioner-Appellee, v. Richard GEORGE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1012

687 F.2d 1012

11 Fed. R. Evid. Serv. 620

UNITED STATES of America ex rel. Gerald SCARPELLI, Petitioner-Appellee, v. Richard GEORGE, Respondent-Appellant.

No. 81-2806.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1982.

Decided Aug. 26, 1982.

Rehearing and Rehearing En Banc Denied Sept. 20, 1982.

Sam Adam, Chicago, Ill., for petitioner-appellee.

Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant.

Before BAUER, WOOD, and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

This appeal raises the issue of whether the state trial court's failure to permit a defendant to cross-examine a crucial witness concerning his trustworthiness and reliability is, as a matter of law, harmful error. The district court held that it was. We reverse.

Petitioner-appellee Gerald Scarpelli was convicted of auto theft and possession of burglary tools in the Circuit Court of DuPage County, Illinois. He appealed, claiming, among other errors, that he was denied a fair trial because the trial judge had unduly restricted his cross-examination of the state's chief witness, Officer Culen. The trial court sustained objections to questions relating to Culen's credibility, his trial preparation, and his identification of Scarpelli. The state appellate court found no error with respect to the restrictions concerning Culen's credibility or trial preparation and held that the restriction relating to Culen's identification of Scarpelli, while improper, was harmless error. The Illinois Supreme Court and the United States Supreme Court, in turn, denied certiorari.

Scarpelli then petitioned the district court for a writ of habeas corpus. The district court granted his petition. It agreed with the state appellate court that restricting Scarpelli's cross-examination of Culen was improper. The district court, however, held that the harmless error rule did not apply and that the trial court's failure to permit Scarpelli to cross-examine Culen concerning the reliability of Culen's identification testimony denied Scarpelli his sixth amendment right to confront the witnesses against him. The government filed a motion to alter or amend this judgment; the motion was denied.

I

The parties agree that the trial judge may limit the scope of cross-examination provided that the limitations do not prevent the defendant from effectively confronting the witnesses against him. Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980). They disagree as to whether the trial court's restriction of Scarpelli's cross-examination of Culen was so extensive that it abridged Scarpelli's sixth amendment right to confront the witnesses against him. They also disagree as to what remedy is appropriate if, in fact, the trial court erred.

Constitutional error is not always harmful error. Only those errors which affect the defendant's substantial rights require reversal. Errors that have little, if any, effect on the defendant's conviction do not. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). In determining whether a constitutional error is harmless, "the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. Thus, we must decide whether restriction of the cross-examination of a crucial witness can ever, as a matter of law, be harmless beyond a reasonable doubt.

The district court held that any restriction on the cross-examination of a crucial witness is automatically harmful error in situations where (1) the witness' testimony is absolutely crucial to the defendant's conviction; and (2) the imposed restrictions rendered the defendant's cross-examination of that witness totally ineffective. United States ex rel. Scarpelli v. George, No. 81 C 864, slip op. at 7-8 (N.D.Ill. Oct. 30, 1981). Applying this harmful error per se rule to Scarpelli's case, the district court concluded that both factors were present because Culen was indisputably the prosecution's principal witness and Scarpelli's proffered questions relating to Culen's trial preparation and prior inconsistent statements were so relevant that failing to permit this line of inquiry effectively prevented any cross-examination relating to Culen's trustworthiness and reliability.

In adopting this per se error rule, the district court principally relied on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Smith v. State of Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); and Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980). Neither Davis nor Smith support an automatic reversal rule, and to the extent that Chipman does, we decline to adopt its rationale.

In Davis the petitioner challenged his state court conviction on the ground that the trial court violated his right to confront the witness against him by prohibiting him from questioning the prosecution's key witness about the witness' prior juvenile record and his probation status. The Supreme Court held that the petitioner had been denied a fair trial because the trial court's ruling prevented him from adequately exposing the jury to facts from which it might infer that the witness was unreliable. It further held that the restriction violated Davis' sixth amendment right of confrontation by preventing him from probing into any bias or prejudice which might have caused the witness to fabricate his identification testimony. The Davis Court, however, did not discuss the per se error rule or use language suggesting that this rule is the appropriate standard of review. Davis merely held that it is reversible error to restrict cross-examination when that restriction prevents the defendant from attempting to discredit the witness' accuracy and truthfulness. Davis v. Alaska, 415 U.S. 308, 317-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974).

Similarly, the Smith Court did not adopt a per se error rule. In Smith the trial court refused to permit the petitioner to ask the principal prosecution witness his name or address. The Court held that this restriction was unconstitutional because the very starting point in probing a witness' credibility "must necessarily be to ask the witness who he is and where he lives" and that "to forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right to cross-examination itself." 390 U.S. at 131, 88 S.Ct. at 749. This holding was based on the Court's conclusion that the defendant was prejudiced; the Court did not apply a per se error rule.

The Ninth Circuit in Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980), specifically stated that any infringment of a defendant's right of confrontation is harmful error per se. Id. at 533. Despite this explicit statement, the language of the decision suggests that the court was actually applying the Chapman harmless error doctrine, for it stated that "the denial of cross-examination for bias or prejudice in this case violated the confrontation clause." Id. (emphasis added). Moreover, the Chipman court relied on other Ninth Circuit decisions applying the harmless error beyond a reasonable doubt standard, which it did not overrule. This suggests that, while the decision speaks in terms of harmful error per se, the court, in fact, applied a less stringent standard.

We are mindful that cross-examination is the cornerstone of the criminal trial process, United States v. Leach, 613 F.2d 1295 (5th Cir. 1980), and that the defendant must be given wide latitude to explore a witness' story, to test the witness' perceptions and memory and to impeach his credibility. United States v. Williams, 592 F.2d 1277 (5th Cir. 1979). We also recognize that the right to cross-examine an adverse witness is not absolute and that the trial judge has considerable discretion to place restrictions on the scope of cross-examination once the right to confront witnesses has been substantially exercised. United States v. West, 670 F.2d 675 (7th Cir. 1982). Accord, United States v. Miranda-Uriarte, 649 F.2d 1345 (9th Cir. 1981); United States v. Winley, 638 F.2d 560 (2d Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1472, 71 L.Ed.2d 678 (1982); Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981). Adoption of a per se rule would eliminate the trial judge's discretion, making it impossible to expedite the litigation or prevent the introduction of collateral issues which might distract the jury. The per se error rule would give defense counsel unrestricted license during cross-examination to ask endless, repetitive or irrelevant questions which might confuse the jury as well as unproductively prolong the litigation. Ultimately the criminal process would be hindered. Accordingly, we decline to embrace the per se error rule even in the narrow context suggested by the district court.

II

The next consideration is whether Scarpelli was denied a fair trial because his questioning of Culen was restricted. Relying...