U.S. v. Dombrowski, 88-2545

• Decision Date: 07 June 1989
• Docket Number: No. 88-2545,88-2545
• Citation: 877 F.2d 520
• Parties: 28 Fed. R. Evid. Serv. 250 UNITED STATES of America, Plaintiff-Appellee, v. Darryl DOMBROWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 520

877 F.2d 520

28 Fed. R. Evid. Serv. 250

UNITED STATES of America, Plaintiff-Appellee, v. Darryl DOMBROWSKI, Defendant-Appellant.

No. 88-2545.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1989.

Decided June 7, 1989.

Chris Gair, David J. Stetler, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Mary Stowell, Chicago, Ill., for defendant-appellant.

Before CUDAHY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Darryl Dombrowski was convicted by a jury of violating 18 U.S.C. section 922(g), ¹ prohibiting possession of firearms by convicted felons. He received the mandatory minimum sentence of fifteen years dictated by the sentence enhancement ² provisions of 18 U.S.C. section 924(e), which mandate enhanced sentences for persons violating section 922(g) if they have had three previous convictions for violent felonies or serious drug offenses. ³ On appeal, Dombrowski contests application of section 922(g) in his case as unconstitutional and further claims that his previous convictions were for burglaries not properly encompassed by section 922(g). He also argues that the trial court committed reversible error in limiting cross-examination of a key witness and in admitting a photograph into evidence. We affirm.

I.

Between 12:45 and 1:00 a.m. on January 23, 1987, Chicago Police Sergeant Harold Dennis received a radio call reporting that a man was firing a gun behind a building at the corner of Touhy and Ridge Avenues. The man was described as a white male wearing a tan coat. Dennis proceeded to drive down Touhy Avenue to an alley behind the building at the corner of Touhy and Ridge. Dennis testified that he stopped his car when it was "in the mouth of the alley. Part of it was in the alley, and the other part was in the street." Trans. at 6-7. At that time Dennis observed a man he later identified as the defendant, twenty-five feet away, walking toward him down the alley. Dennis stepped out of the car, calling to the subject to stop. The man approached to within approximately eight feet of Dennis, who was standing behind the open door of his squad car. Dennis and the subject then simultaneously reached for and drew their guns. Dennis testified that the man never actually pointed the gun at him, but drew it to chest level and then turned and ran out of the alley onto Touhy Avenue in an easterly direction.

After radioing for assistance, Dennis pursued the subject, who by then had turned to the south down a gangway between two buildings. Dennis testified that he saw the subject's face again when the man turned, at a distance of 40 or 50 feet down the gangway, to look back. The subject then threw an object to the ground and continued his flight, turning westward through a parking lot. Dennis proceeded down the gangway and observed a black steel automatic pistol lying in a snowdrift in the area in which he had seen the subject throw an object to the ground. Still radioing instructions to approaching police units, Dennis continued in pursuit long enough to see the subject disappear into a gangway leading out onto Ridge Avenue. Immediately after he finished relaying this information on the radio, an officer replied by radio, "We have him." That officer, Patrick Garrity, had been driving on Touhy Avenue eastbound toward the intersection of Touhy and Ridge, and had observed the defendant on the southeast corner of the intersection walking rapidly away to the northwest. Garrity and his partner pursued and arrested the defendant, and immediately "took him around the corner to an alley" where Sergeant Dennis identified him as the subject he'd seen earlier. Trans. at 57. Dennis subsequently recovered six spent shell casings from behind the building at Touhy and Ridge.

II.

A.

Dombrowski first argues that the trial court committed reversible error when it limited the scope of the defendant's cross-examination of Sergeant Dennis. This argument rests on the following exchange:

DEFENDANT'S COUNSEL: Do you still make street arrests?

DENNIS: I have occasions to make arrests, yes.

DEFENDANT'S COUNSEL: Now, just give your best estimate, if you would, of the number of people you arrested in 1987.

GOVERNMENT: Objection.

THE COURT: Sustained.

DEFENDANT'S COUNSEL: Is it fair to say you arrest over 50 people a year, Sergeant?

GOVERNMENT: Objection.

THE COURT: Sustained.

Trans. at 28. Defense counsel proceeded to question Dennis about his duties as a sergeant. On appeal the defendant argues that this limitation of the examination constituted error; he further argues that the error was not harmless because it violated the rights guaranteed him under the sixth amendment's confrontation clause.

The Supreme Court has indeed held that "a primary interest secured by [the confrontation clause] is the right of cross-examination." Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965)). Of course, the trial court may, in its discretion, impose some limitations on cross-examination, as long as those limitations do not interfere in any substantial way with this sixth amendment right. See United States v. DiCaro, 852 F.2d 259, 261-62 (7th Cir.1988); United States v. Wellman, 830 F.2d 1453, 1464-65 (7th Cir.1987). Relatively minor limitations on cross-examination do not generally impinge upon sixth amendment rights where the issue counsel sought to illuminate through cross-examination has been adequately explored elsewhere, United States v. Rodgers, 755 F.2d 533, 548 (7th Cir.), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985); United States v. Muelbl, 739 F.2d 1175, 1185 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 388, 83 L.Ed.2d 322 (1984), or where cross-examination exposes enough evidence "to enable the jury to evaluate [the defendant's] theory of defense and to make 'a discriminating appraisal of the witness's motives and bias.' " DiCaro, 852 F.2d at 261 (quoting United States v. DeGudino, 722 F.2d 1351, 1354 (7th Cir.1983)); see also United States ex rel. Ashford v. Director, Illinois Dep't of Corrections, 871 F.2d 680, 683-84 (7th Cir.1989).

Defense counsel argues that the district court's limitation of her cross-examination critically hindered her efforts to impeach the prosecution's key witness. She argues that had she been able to elicit testimony about the number of arrests Dennis made, she would have been able to establish "how implausible it was for Dennis to remember the specific events of this particular arrest from among a series of arrests." Brief of Appellant at 10. However, the remainder of defense counsel's cross-examination of Dennis involved a thorough exploration of the discrepancy between the brief police report filed about the incident and Dennis' account of the incident, casting doubt on Dennis' independent recollection of events. This theme was further developed in counsel's cross-examination of Officer Garrity. Trans. at 64-68. Finally, counsel argued the very point that this was one among many arrests in her closing argument. Supp. trans. at 8. A close reading both of counsel's cross-examination of the two key government witnesses and of her closing argument reveals that counsel did an effective job of raising doubt about Dennis' ability to remember events. The additional information about the number of arrests made by Dennis in a year would not have added anything substantial to counsel's tenacious attempts to impeach Dennis' testimony. ⁴ The jury had the issue (of Dennis' ability to accurately recall one arrest among many) fully before it, and simply chose to credit Dennis' testimony. There was ample basis for doing so.

B.

Dombrowski also urges that the trial court committed reversible error in admitting into evidence a photograph of the scene of the crime introduced by the government. The trial court's ruling on this evidentiary issue may not be reversed absent an abuse of discretion. United States v. Fleming, 594 F.2d 598, 607 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979); see also United States v. Blackwell, 694 F.2d 1325, 1330 (D.C.Cir.1982); United States v. Delay, 500 F.2d 1360, 1366 (8th Cir.1974).

Dombrowski argues alternatively that admission of the photograph violated Rule 901 of the Federal Rules of Evidence, requiring authentication of evidence prior to admission; Rule 402, excluding irrelevant information; or Rule 403, permitting exclusion of relevant information whose probative value is outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.

In order to authenticate the photograph, the government had to present "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901. The government claims that the photograph accurately depicts the scene of the crime. It is apparently conceded that the photograph depicts the buildings and street surrounding the mouth of the alley into which Dennis pulled his car. It is also uncontested that the photograph was taken at night and that the crime in question occurred at night. The basis for defense counsel's original objection to introduction of the photograph at trial was that it does not "necessarily" depict with accuracy the lighting conditions on the night in question. Trans. at 24. The trial judge conceded, "What's missing here is that the conditions were the same or substantially the same when the photograph was taken as they were on January 23, 1987." Id. The judge accordingly asked the government to provide more foundation for the introduction of the exhibit and stated that he would allow extensive cross-examination on...