U.S. v. Colyer, 77-5259

• Decision Date: 21 April 1978
• Docket Number: No. 77-5259,77-5259
• Citation: 571 F.2d 941
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene COLYER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 941

571 F.2d 941

UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene COLYER, Defendant-Appellant.

No. 77-5259.

United States Court of Appeals Fifth Circuit.

April 21, 1978.

Werner A. Powers, Dallas, Tex. (Court-appointed), for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., R. H. Wallace, Jr., Gerhard Kleinschmidt, Ronald C. H. Eddins, Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM and GEE, Circuit Judges, and VAN PELT ^*, District Judge.

VAN PELT, Senior District Judge:

Appellant was indicted and convicted by a jury of unlawfully transporting in interstate and foreign commerce a lost and fraudulently obtained credit card (Master Charge) in violation of 15 U.S.C. § 1644(b). On appeal, he raises the following issues:

1. Whether the trial court erred in restricting cross-examination of the lawful credit card owner as to whether he was a homosexual;

2. Whether the Master Charge tickets showing purchases made during the time the card was lost or stolen were properly admitted into evidence; and

3. Whether appellant was prejudiced by the government's delayed disclosure during the trial, and after the credit card owner's identification of appellant in court, that the owner had been unable to identify appellant's photo when shown a photographic spread prior to trial.

We affirm.

On Monday, December 8, 1975, Robert Miller reported to the Master Charge department of his bank that his billfold and Master Charge card were missing. Master Charge records show the card was reported as being lost. Miller testified that he had gone Christmas shopping late Saturday afternoon, December 6, and had visited several bars as the evening progressed. His final stop was the 651 Club, which was described by him as "a bar that is frequented by quite a variety of people, among them are the gay element of Fort Worth, homosexuals." Tr. at 7. He had a number of beers there and met a man whom he invited to his apartment for more beers. He identified Donald Colyer at the trial as this man. Miller testified that:

Sometime during the night I fell asleep and when I woke up he was gone and my wallet was gone.

Tr. at 7.

In addition to Miller's testimony, the government offered 61 Master Charge tickets showing purchases made mostly in Mexico and during the time the card was reported lost. A handwriting and fingerprint expert testified (1) that he had been able to identify 11 latent fingerprints on 9 of the Master Charge tickets as belonging to Donald Colyer after comparing the latent fingerprints with known fingerprints from Colyer; and (2) that by comparing handwriting samples from both Colyer and Miller with the signatures on the Master Charge tickets, he had determined that the signatures on all 61 of the charge tickets, and the endorsement on the back of the Master Charge card as well, were made by Colyer.

The defendant did not testify but called as witnesses his wife and his sister. They testified that he was at home during the time period the charges were made in Mexico. His wife testified she spent the evening of December 6, 1975, with her husband. In rebuttal, the government offered the testimony of Colyer's mother-in-law. She testified that she, her husband, and 14 year old daughter arrived at her daughter Veleta's home December 20, 1975. Donald Colyer was not there. She was told by Veleta that Colyer was working in Mexico and had been gone two or three weeks. Colyer returned on Monday, December 22. According to his mother-in-law's testimony, he arrived with clothes, dresses, liquor, boots, pants, shirts, and a couple of short coats. He had several suitcases and had to make several trips to bring in everything. Colyer's mother-in-law admitted on cross-examination that she did not especially like Donald Colyer. The daughter had testified earlier that her mother had never liked her husband and disapproved of their marriage.

I. LIMITATION OF CROSS-EXAMINATION

During the trial, defense counsel ¹ asked Miller if he was a homosexual. ² An exchange followed between the prosecutor and the court, wherein the prosecutor objected on the basis this was getting into an area where Miller would be entitled to invoke his Fifth Amendment rights against self-incrimination. The court agreed and sustained the objection. The record does not reflect any unwillingness on the part of Miller to answer the question, or that he himself invoked the Fifth Amendment.

On appeal, appellant Colyer contends (1) that by the restriction of cross-examination he was denied his Sixth Amendment right of confrontation; (2) that the trial court abused its discretion by invoking the privilege for the witness and by restricting cross-examination; (3) that Miller waived his right to invoke the privilege by testifying that the club was frequented by homosexuals; (4) that the district court erred in failing to strike the direct testimony of Miller.

This case is unique in that the witness did not directly invoke the privilege. While the government admits that the procedure followed by the trial court "was not in accordance (with) the guidelines which this Court has established for resolving Fifth Amendment claims of witnesses . . . .", citing United States v. Moreno, 536 F.2d 1042 (5th Cir. 1976), ³ the government does not cite any case which is factually similar. Given the record, we have to assume that the trial court sustained the objection to the question not because it exceeded the scope of direct examination or for any other of the usual objections, but solely because the witness would be entitled to invoke the Fifth Amendment.

This Circuit has explored the conflict between a witness' Fifth Amendment rights and a criminal defendant's Sixth Amendment right to confrontation in Fountain v. United States, 384 F.2d 624 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). Fountain indicates that the proper inquiry is (1) whether the witness may properly invoke the privilege and, if the answer to that question is affirmative, (2) whether the jury may consider the witness' testimony already received on direct examination.

It has been stated that invoking the Fifth Amendment privilege is personal to the witness. United States v. Mayes, 512 F.2d 637 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670; 423 U.S. 840, 96 S.Ct. 69, 46 L.Ed.2d 59 (1975). See also McCormick, Evidence § 120 (2d ed. 1972). This means the defendant or a third party may not use a witness' privilege to their own benefit by invoking it. However, it is not clear how far a third person can go toward persuading the witness to invoke the privilege in his own behalf. In Mayes, supra, at 649, the court stated:

While the witness is entitled to the advice of counsel before determining whether he should invoke the privilege, . . . and while it is within the discretion of the trial judge to permit counsel for the witness to invoke the privilege on his behalf, 8 Wigmore, (Evidence) § 2270 (McNaughton rev. 1961), the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself.

In Mayes, counsel for defendant also served as counsel for three of the witnesses who intended to testify for the government. However, their "counsel" asserted their privilege and effectively kept them from testifying. The Court of Appeals for the Sixth Circuit held that defendant could not claim he was denied his right of confrontation where the witnesses' silence was procured for defendant's benefit. Thus, although the Mayes opinion contains some broad language about counsel invoking the privilege on the witness' behalf, that language ends up being dicta where in fact the privilege was invoked for the defendant's benefit. The Mayes court was extremely critical of the trial court for allowing this to happen.

This circuit has previously considered the duty a judge has to protect a witness' interest. In United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 944, 30 L.Ed.2d 787 (1972), the defendant-appellant claimed the judge should have exerted more pressure upon a witness to testify and should have threatened the witness with contempt. However, the court did not go that far, and said:

This claim ignores a number of important factors. First, the Judge is present as the embodiment of the Constitution, charged with the firm duty to see that the rights of all are upheld the defendants, the witnesses and the public. Whether and to whatever extent it may be the duty of the trial judge to caution a witness about his Fifth Amendment rights, a careful one never hesitates.

Id. at 1139. Wilcox indicates that the judge's role of impartiality commands that he not take sides. After the claim is asserted, the judge must handle it in a way which does not prejudice the defense. ⁴ In United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), this court has indicated that a judge must be alert to the witness' right against self-incrimination. In Lacouture the witness' attorney told the court that his client had refused to answer questions before the Grand Jury on his advice, and that she would do the same in the district court. The trial court asked her if this was true. The witness replied she didn't know, would like to think it over, wanted to see justice done, but didn't want to incriminate herself. The trial court concluded that if she was put on the stand she would claim the privilege and ruled she would not be allowed to testify in the presence of the jury. Lacouture concluded that the court had not claimed the privilege for the witness.

The court's remarks do no more than reveal a proper solicitude for her rights, and his preliminary determination that she would refuse to answer was not erroneous.

Id. at...