U.S. ex rel. Ashford v. Director, Illinois Dept. of Corrections

• Decision Date: 03 April 1989
• Docket Number: No. 88-1558,88-1558
• Citation: 871 F.2d 680
• Parties: UNITED STATES of America ex rel. Joe L. ASHFORD, Petitioner-Appellant, v. DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 680

871 F.2d 680

UNITED STATES of America ex rel. Joe L. ASHFORD, Petitioner-Appellant, v. DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 88-1558.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1988.

Decided April 3, 1989.

Bruce Eli Mosbacher, State Appellate Defender, Chicago, Ill., for petitioner-appellant.

Arleen C. Anderson, Atty. Gen. Office, Chicago, Ill., for respondent-appellee.

Before WOOD, Jr., COFFEY and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner Joe L. Ashford appeals the district court's denial of his petition for a writ of habeas corpus. Ashford was convicted in an Illinois state bench trial of armed robbery, residential burglary, and home invasion in violation of Ill.Rev.Stat. ch. 38, Secs. 18-2, 19-3, and 12-11. He was sentenced to serve three concurrent seven-year terms of imprisonment. On direct appeal, the Appellate Court of Illinois affirmed the convictions and the sentences in an unpublished opinion. The Supreme Court of Illinois denied review. Ashford then filed a petition for writ of habeas corpus. 28 U.S.C. Sec. 2254. The district court denied the petition, 685 F.Supp. 659, and Ashford appeals.

Ashford argues that (1) he was denied his sixth amendment right to confrontation when the trial court allowed a prosecution witness to invoke the fifth amendment and limited cross-examination directed at establishing both the presence of drugs in the witness' home and prior drug-related offenses; (2) he was denied his sixth amendment right to confrontation when the trial court limited cross-examination of the same witness regarding the disposition of charges pending against the witness; and (3) he was denied his right to present a defense when he was not allowed to call the prosecuting attorney as a witness for the defense. We affirm.

I. FACTUAL BACKGROUND

We summarize the facts from the unpublished state court opinion. The parties do not dispute the state court findings of fact and we presume their correctness. 28 U.S.C. Sec. 2254(d).

Ashford was tried jointly with Lamont Harris. Another alleged perpetrator, Eddie Williams, entered a pre-trial agreement with the State. Ashford's theory of defense was that he was the victim of a busted drug deal rather than the perpetrator of a crime.

At trial, the State's primary witness was Juan Irizarry, the alleged victim of the crime. Irizarry testified that around 12:45 p.m. on October 24, 1982, he heard a knock at his apartment door. He opened the door and was confronted by Harris, who was armed with a revolver, and Williams, who was armed with a sawed-off shotgun. Ashford stood behind them. Williams took a gold chain from around Irizarry's neck and a gold ring from his finger. Irizarry did not call the police to report this incident.

A police officer testified that codefendant Harris first brought the incident to the attention of the police. He testified that Harris called and asked him if he wanted to make a big bust. Harris then accompanied the police officer to Irizarry's apartment. The police officer heard Irizarry's version of the incident and arrested Harris. At the police station that evening, Irizarry identified Ashford as one of his assailants.

Defense counsel sought to call the prosecuting attorney as a witness, claiming she would testify that Irizarry had told her that he did not report the incident because he had drugs in his apartment and did not want the police present. The trial court refused.

Ashford attempted to establish that the entire incident was a busted drug deal. Irizarry admitted that he had been convicted of selling controlled substances in 1976 and that, at the time of trial, two felony drug charges were pending against him. On cross-examination, he testified that he did not expect any leniency from the State in retrurn for his testimony against Ashford and Harris. Irizarry admitted to using drugs but said that he was not an addict. The trial court allowed Irizarry to invoke the fifth amendment in response to cross-examination about the presence of drugs in his apartment on October 24, 1982, and other drug deals. The trial court also limited defense questions regarding discussions between Irizarry's attorney and the prosecution over the disposition of the charges pending against Irizarry.

Although the trial court excluded some testimony, Ashford managed to introduce other testimony that impeached Irizarry's credibility. After Irizarry testified that he heard a knock at the door, asked who it was and then opened his apartment door, and was confronted by three men, the defense introduced Irizarry's own contradictory testimony from an earlier hearing. He had then stated that his companion asked who was at the door and that four men were involved. After Irizarry testified that he had not threatened a police officer's family, the defense called a police officer who testified that Irizarry had threatened his family.

II. DISCUSSION

A. Right to Confrontation

We treat Ashford's confrontation claims together. At the outset, we note that when a petitioner alleges that he was denied his sixth amendment right to confrontation, we face a mixed question of law and fact and review the matter independently. Burns v. Clusen, 798 F.2d 931, 941 (7th Cir.1986). The sixth and fourteenth amendments grant a criminal defendant in state court the right "to be confronted with the witnesses against him." This grant creates a right to literal confrontation and a right to effective cross-examination. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1973). The Supreme Court has, however, qualified the right to effective cross-examination: "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). This court has stated that "when reviewing the adequacy of a cross-examination, the question is whether the jury had sufficient information to make a discriminating appraisal of the witness's motives and bias." United States v. DeGudino, 722 F.2d 1351, 1354 (7th Cir.1983).

The courts have refined this analysis further by classifying the excluded testimony as evidence that is direct or collateral. See, e.g., Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110; United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). See also United States v. Zapata, 871 F.2d 616, 624, (7th Cir.1989). Collateral matters are subjects not raised during direct examination and normally relate to the general credibility of the witness. Cardillo, 316 F.2d at 611. The trial court has great latitude to exclude collateral information because the witness' general credibility may normally be attacked with other information. Id. The court has less discretion to exclude testimony on direct matters because of the substantial danger of prejudice to the defense if it is denied the opportunity to test the truth of direct testimony. Id. When applying this classification to credibility evidence, we have equated direct matters to evidence of particular bias and collateral matters to evidence of general credibility. See United States v. DeGudino, 722 F.2d at 1354-55. We will employ the distinction between particular bias and general credibility.

The Supreme Court has addressed the distinction between bias and general credibility:

The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack of the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore, Evidence Sec. 940, p. 775 (Chadbourn rev. 1970).

Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).

Ashford claims that the trial court erred by limiting cross-examination aimed at establishing the presence of drugs in Irizarry's home on the date of the alleged robbery, Irizarry's prior drug-related offenses, and the disposition of charges pending against Irizarry. During the state trial, Ashford's counsel argued that this evidence would impeach Irizarry's general credibility and show bias. Ashford argues that testimony regarding the presence of drugs in Irizarry's apartment on the date of the alleged robbery would support the defense theory that the incident was "a busted drug deal which provided the motive and bias for Irizarry to falsely accuse appellant of being a participant in criminal offenses." Ashford's secondary purpose was to use the presence of drugs to attack Irizarry's general credibility. Ashford argues unconvincingly that the excluded testimony of other bad acts, which attacked Irizarry's general credibility only, was not collateral as the district court found. Finally, Ashford argues that if he had been able to establish that there were ongoing negotiations between Irizarry and the prosecution regarding disposition of Irizarry's pending charges, the defense would have been in a better position to argue that Irizarry was lying in order to secure more lenient treatment from the government.

The appellate court found that the exclusion of all of this testimony was harmless beyond a reasonable doubt. The district court found that the testimony regarding Irizarry's prior bad acts was collateral and properly excluded. In regard to testimony about the presence of drugs in Irizarry's...