U.S. v. Polsinelli

• Decision Date: 22 May 1981
• Docket Number: No. 80-1665,80-1665
• Citation: 649 F.2d 793
• Parties: 8 Fed. R. Evid. Serv. 412 UNITED STATES of America, Plaintiff-Appellee, v. Quinn L. POLSINELLI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 793

649 F.2d 793

8 Fed. R. Evid. Serv. 412

UNITED STATES of America, Plaintiff-Appellee, v. Quinn L. POLSINELLI, Defendant-Appellant.

No. 80-1665.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 17, 1981.

Decided May 22, 1981.

John Oliver Martin, Asst. U.S. Atty. Kansas City, Kan. (James P. Buchele, U.S. Atty., Kansas City, Kan., with him on brief), for plaintiff-appellee.

Laurence M. Jarvis of the Firm of Laurence M. Jarvis, Chartered, Kansas City, Kan., for defendant-appellant.

Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

Quinn L. Polsinelli was convicted by a jury of conspiring from about April 1, 1979, to April 30, 1979, with Daniel P. McFarland to distribute cocaine, a Schedule II narcotic drug, in violation of 21 U.S.C. § 846 (1976). He was also convicted of distributing cocaine on April 30, 1979, in violation of 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976). Polsinelli was acquitted on Count 2 of the indictment, which charged him with distributing cocaine on April 18, 1979. Polsinelli appeals.

The indictment jointly charged Polsinelli and McFarland. After plea bargaining, McFarland pled guilty to Count 3 in the indictment, i. e., the April 30 transaction, and the remaining two counts were dismissed. Sentencing of McFarland was delayed until after Polsinelli's trial. At the latter's trial, McFarland was the key Government witness. McFarland testified that on the two occasions charged in the indictment he sold an ounce of cocaine to an undercover Drug Enforcement Administration (DEA) Agent and that in each instance he acquired the cocaine from Polsinelli, and, in turn, sold it to the undercover agent. ¹

Polsinelli testified in his own defense, and admitted the contacts between himself and McFarland on both April 18 and 30, 1979. He denied, however, that he ever delivered any cocaine to McFarland. Other DEA agents and a Kansas City, Missouri, policeman conducted a surveillance of McFarland and Polsinelli on the dates in question and they confirmed the contacts between the two. There was, however, no corroborating evidence as to what transpired between Polsinelli and McFarland during such contacts. So, on the critical issue of whether McFarland acquired the cocaine from Polsinelli, it was a one-on-one situation, that is, McFarland testified he acquired the cocaine for both the April 18 and 30 sales from Polsinelli, with the latter unequivocally denying that he gave cocaine to McFarland.

Counsel for Polsinelli called three character witnesses, a Catholic priest, a long-time family friend, and Polsinelli's 86-year-old grandmother. There was no cross-examination of the grandmother. Polsinelli's primary ground for reversal relates to the Government's cross-examination of the priest and the family friend.

The direct examination of the priest and the family friend was quite similar. Defense counsel asked the witness if he, or she in the case of the family friend, knew of Polsinelli's community reputation for honesty, truthfulness, veracity, and integrity. Both indicated that they did, and described his community reputation as being good or very good.

On cross-examination of the priest, the prosecutor, over objection, was allowed to ask the witness if his opinion would be changed "if you became aware that Mr. Polsinelli had on at least two occasions distributed ounce quantities of cocaine." In the context in which the question was propounded, the prosecutor was obviously referring to the alleged distributions on April 18 and 30, the charges for which Polsinelli was standing trial. The priest indicated that his opinion would not be altered. ²

In cross-examining the long-time family friend, the prosecutor was a bit more specific. He asked the family friend if her opinion would be changed if she "knew that on at least two occasions during April of 1979 he (Polsinelli) distributed one ounce quantities of cocaine." This witness, in response, said her opinion would remain the same "always." ³

Although counsel advances several grounds for reversal, the primary ground concerns the prosecutor's cross-examination of the Catholic priest and the long-time family friend. Counsel argues that it was prejudicial error to permit the Government to propound questions which assumed, as a fact, that Polsinelli was guilty of the very offenses for which he was then on trial. According to counsel, the use of such questions tends to usurp the jury's function to determine for itself whether Polsinelli is guilty or not guilty of the crimes charged. We are of the view that the questions thus propounded to Polsinelli's character witnesses were improper in form.

Fed.R.Evid. 405(a) provides that in cases "in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." That same rule further states: "On cross-examination, inquiry is allowable into relevant specific instances of conduct." The issue before us, therefore, narrows to a determination as to whether the provision of the rule which allows, on cross-examination, inquiry into "specific instances of conduct" permits the cross-examining questions propounded here, which, as indicated, were so framed as to assume that Polsinelli was, in fact, guilty of the offenses for which he was then on trial.

Prior to the adoption of the present Federal Rules of Evidence, a character witness in a criminal proceeding was, in general, limited to testimony concerning defendant's community reputation. The witness was not allowed to express a personal opinion of defendant's character, no matter how close or long his association with the defendant. Fed.R.Evid. 405 changed the rule by allowing a character witness, once qualified, to express his personal opinion of defendant's character, even though such witness might be unacquainted with defendant's community reputation. This distinction between community reputation and personal opinion as to character has been deemed of some importance by other courts which have considered the question now before us. Before reviewing those authorities, we should first ascertain the precise nature of counsel's direct examination of the character witnesses.

Our study of the transcript leads us to conclude that, on direct examination of the priest and the family friend, defense counsel merely elicited their understanding of Polsinelli's community reputation, and that neither witness expressed a personal opinion of Polsinelli's character. In this regard, the Government points out that the questions propounded by defense counsel in his direct examination of the priest and the family friend did contain the word "opinion." This observation is quite correct. However, in context, it is crystal clear to us that the "opinion" elicited related only to community reputation. ⁴ For example, the priest, on direct examination, was asked whether he had an "opinion about the reputation in the community of Quinn Polsinelli." Similarly, the family friend, on direct examination, was asked her "opinion about Quinn Polsinelli's reputation in the community." Although we are not certain that the distinction thus drawn is of significance, we are certain that, in the instant case, defense counsel, on direct examination, limited his inquiry to Polsinelli's community reputation, and that neither witness expressed a personal opinion as to Polsinelli's character. In thus concluding, we reject the Government's premise that the priest and family friend expressed personal opinions of Polsinelli's character. The Government advocated this position in an effort to distinguish the present case from other cases in which courts found questions to be improper which were less offensive than those used here.

In United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977), the defendant's character witnesses testified as to his general reputation for truth and veracity. On cross-examination, the Government, over objection, was allowed to inquire as to whether the witness thought defendant's general reputation would be affected if the defendant were convicted of the crimes for which he was on trial. On appeal, while recognizing the wide latitude allowed in cross-examination of a character witness, the Fifth Circuit held that the cross-examination of defendant's character witnesses was grossly prejudicial and commented as follows:

The nature of the questions was a far cry from any concept of formulated community opinion. Rather, the questions posed sought speculative responses resting upon an assumption of guilt. Government counsel asked if Ledesma's reputation would be affected if he were convicted of the alleged crime. These hypothetical questions struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial. See Gomila v. United States, 5 Cir. 1944, 146 F.2d 372; Little v. United States, 8 Cir. 1937, 93 F.2d 401, 408. We think that the risk of prejudice to defendant's basic rights from such questions requires reversal. The questions put have have no place in a criminal trial. Id. at 294.

United States v. Palmere, 578 F.2d 105 (5th Cir. 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979), merits consideration, as the Government suggests that Palmere weakens Candelaria-Gonzalez. In Palmere, the Government asked a character witness if his opinion of defendant's reputation would be changed if he knew that defendant had smuggled cocaine into the country, which was the crime for which he was then on trial. No objection was made to the propriety of that question, and on appeal the Fifth Circuit held that the one asking of the question did not constitute plain error. In thus holding, the Fifth Circuit emphasized that in Palmere there was only "one asking," as opposed to Candelaria-Gonzalez, where the question was put to several of the...