U.S. v. Domina

• Decision Date: 17 March 1986
• Docket Number: No. 84-1045,84-1045
• Parties: , 20 Fed. R. Evid. Serv. 735 UNITED STATES of America, Plaintiff-Appellee, v. Gary Stephen DOMINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1361

784 F.2d 1361

54 USLW 2506, 20 Fed. R. Evid. Serv. 735

UNITED STATES of America, Plaintiff-Appellee, v. Gary Stephen DOMINA, Defendant-Appellant.

No. 84-1045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1984.

Decided March 17, 1986.

Leida B. Schoggen, San Jose, Cal., for plaintiff-appellee.

John A.D. Kelley, Palo Alto, Cal., for defendant-appellant.

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

Before HUG, SCHROEDER and BEEZER, Circuit Judges.

HUG, Circuit Judge:

Domina appeals from a conviction on four counts of bank robbery and one count of possession of a firearm by an ex-felon. He contends he was deprived of his sixth amendment right to confront a principal witness against him by a limitation on the cross-examination of that witness. He also contends he was deprived of due process because the identification of him by three witnesses was impermissibly suggestive. He raises several other issues, which we discuss briefly. We affirm the conviction.

I. Procedural Status

Domina was indicted for four separate armed robberies of savings and loan institutions in violation of 18 U.S.C. Secs. 2 and 2113(a) and (d) (1982). In addition, he was indicted for possession of a firearm by an ex-felon in violation of 18 U.S.C. Sec. 1202 (1982) and also for a conspiracy count that was dropped prior to trial. He was tried before a jury on the four bank robbery charges. Pursuant to a stipulation, the firearm count was decided by the judge based upon the evidence adduced at the jury trial. He was convicted on all counts and now appeals those judgments.

II. Facts

The principal witness was Miller Edward Purnell, ("Purnell"), who was originally charged with Domina, and who pled guilty to one of the robbery counts. He testified that he had participated in the robberies of the four savings and loan institutions as the driver of the get-away car. His account of the details concerning each robbery follows.

Purnell and Domina met in May, 1983. On June 10, 1983, Domina and Purnell drove near the Camden area of San Jose and discussed the possibility of robbing a bank. The next morning, June 11, they drove to Home Federal Savings and Loan ("Home Federal") in Domina's green Pinto. While Purnell waited in the car, Domina, wearing a beanie pulled down over his face like a ski mask and carrying a sawed-off shotgun, entered Home Federal's side entrance. After Domina was inside for a short while, he came out, jumped into the car, and told Purnell to drive off. Purnell drove them to the residence of Purnell's friend, Marvita Cole, where he and Domina switched the car's license plates and divided the money obtained from the robbery. Cole was unaware of their illegal activity. Purnell and Domina engaged in three subsequent robberies, again robbing the same branch of Home Federal on June 20, 1983, then Fidelity Federal Savings and Loan Association ("Fidelity Federal") on June 21, 1983, and Glendale Federal Savings and Loan ("Glendale Federal") on July 1, 1983. Each of the subsequent robberies followed the same pattern of events as that of the first robbery. He drove Domina to the savings and loan; Domina entered, wearing a beanie-like ski mask and carrying a sawed-off shot gun. After Domina conducted the robbery and came out with the money, Purnell drove him to Marvita Cole's garage, where they switched license plates on the car and divided the money. Purnell admitted his involvement and led the police to the garage, where they recovered the shot gun, ammunition, two masks, and other evidence Purnell testified was used in the robberies.

The defense concedes that it was proved that Purnell was implicated in these robberies. The only question was whether it was Domina who was the robber accompanying Purnell, as Purnell contended. It was also clear that Purnell drove to and from the robberies in Domina's green Pinto automobile, as Purnell testified. Several tellers identified the Pinto driving away from the scene. A retired deputy sheriff had noticed the green Pinto suspiciously parked outside Glendale Federal and had been watching when the robber came out and drove away as a passenger in the Pinto. He obtained the license number, which was that of the license plate found with the gun and other evidence in Marvita Cole's garage.

Marvita Cole testified that Purnell and Domina had asked to use her garage and that, four or five times during the summer, they had pulled the green Pinto into her garage, closed the doors, and asked that nobody come in. There was also additional testimony that the green Pinto belonged to Domina. There were six surveillance photos of the robber during the last three robberies, but none of the first robbery. The robber in the six photos appeared to be the same person.

Only three of the tellers who testified at trial gave identification testimony. Gina Bishoff identified Domina as the robber in the first robbery (Home Federal). Eleanor Newton testified about the third robbery (Fidelity Federal) and indicated that she could possibly identify the defendant as the robber if he put on the mask. The court ordered him to do so, over the objection of the defense. Newton then testified that Domina, with the mask on, looked similar to the robber she saw. She based this on his long neck and long nose which made the mask protrude. Linda Dowdy testified about the fourth robbery (Glendale Federal). She believed she could identify the robber by his voice. The court, over defense objection, ordered Domina to say two phrases that the robber had spoken: "Ladies, this is a hold-up" and "Put all the money in the bag." After the defendant did so, Dowdy testified, "That is the voice I heard." On cross-examination, she modified her testimony to say that the voice was very similar.

The evidence was overwhelming that Purnell participated in the four robberies with another person of Domina's general appearance, in Domina's car, and that Domina had accompanied Purnell to Marvita Cole's garage four or five times during the period in question. The defense advanced by Domina was that it was someone other than Domina who accompanied Purnell during the robberies.

III. Limitation of the Scope of Cross-Examination

Domina claims that the district court improperly limited his cross-examination of Purnell by not permitting the defense to explore whether drug use adversely affected Purnell's credibility. The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985). This right is subject to the broad discretion of a trial judge to preclude harassment or unduly prejudicial interrogation. Davis, 415 U.S. at 316, 94 S.Ct. at 1110; Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir.1982), cert. denied, 463 U.S. 1212, 103 S.Ct. 3547, 77 L.Ed.2d 1395 (1983). We review the district court's limitation of the scope of cross-examination for an abuse of discretion. McClintock, 748 F.2d at 1289.

Following Purnell's testimony on direct examination, the district court conducted an in limine hearing concerning the limitation of cross-examination about Purnell's drug usage. At the in limine hearing, the district judge afforded a full opportunity for the defense to explore the extent of Purnell's use of drugs and its effect on his credibility. At the conclusion of the in limine hearing, the district court concluded that Domina failed to establish an adequate foundation to justify an inquiry on cross-examination into how drug use affected Purnell's credibility as a witness.

Domina contends that the district court applied the wrong standard in assessing the effect on credibility because the court concentrated only on the questions of whether Purnell's testimony was offered while he was under the influence of narcotics and whether he was under the influence of narcotics at the time of the robberies so as to affect his perception of the events. It is true that the trial judge initially expressed these as his primary concerns and that the questioning of Purnell concentrated on these concerns. However, the court did not restrict the questioning to these areas and, in fact, asked at the conclusion of examination by Domina's attorney on this matter, "Any other questions? ... I want to see if they want to lay any further foundation." No further questions on this subject were asked, nor was any further foundation laid.

Domina now contends that the court should have evaluated the possible effect that drug usage might have on Purnell's bias as a witness because his drug dependence made him especially susceptible to police influence or pressure. We have recognized that narcotics addicts are more susceptible to police manipulation and intimidation. See United States v. Kizer, 569 F.2d 504, 506 (9th Cir.) (cross-examination on drug use may be necessary where the record reveals that drug use may have provided motivation for testifying), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978); United States v. Kinnard, 465 F.2d 566, 571 (D.C.Cir.1972) (Bazelon, C.J., concurring). See also J. Weinstein & M. Berger, Weinstein's Evidence, p 607 at 607-51 (1985) ("evidence of drug involvement is ... often relevant on the issue of bias as indicating why a witness is cooperating with the government--and in such cases probative value may be sufficiently high to offset the danger of prejudice."). In this case, however, there was no foundation whatsoever laid at the in limine hearing justifying any inference that drug usage or addiction had led to any manipulation or inducement by the police, such as supplying or withholding narcotics, and there was no indication that Purnell's narcotics use played any...