U.S. v. Pryce, s. 89-3124

• Citation: 938 F.2d 1343,291 U.S.App.D.C. 84
• Decision Date: 20 September 1991
• Docket Number: Nos. 89-3124,89-3132 and 89-3134,89-3133,s. 89-3124
• Parties: , 33 Fed. R. Evid. Serv. 721 UNITED STATES of America v. Michael PRYCE, Appellant. UNITED STATES of America v. Nathaniel M. GASKINS, a/k/a Andre Michael Redman, "Terry", Appellant. UNITED STATES of America v. Calvin L. THOMAS, a/k/a "Peter", Appellant. UNITED STATES of America v. Antonio DONOVAN, a/k/a Howard Turner, Donovan Antonio, "Jerry", Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1343

938 F.2d 1343

291 U.S.App.D.C. 84, 33 Fed. R. Evid. Serv. 721

UNITED STATES of America v. Michael PRYCE, Appellant.

UNITED STATES of America v. Nathaniel M. GASKINS, a/k/a Andre Michael Redman, "Terry",

Appellant.

UNITED STATES of America v. Calvin L. THOMAS, a/k/a "Peter", Appellant.

UNITED STATES of America v. Antonio DONOVAN, a/k/a Howard Turner, Donovan Antonio, "Jerry", Appellant.

Nos. 89-3124, 89-3133, 89-3132 and 89-3134.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 21, 1991.

Decided July 16, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc

Sept. 20, 1991.

Curt Hansen, with whom Greta Van Susteren (appointed by the Court) was on the brief, for appellant Michael Pryce in No. 89-3124.

Diane S. Lepley (appointed by the Court), with whom David B. Smith was on the brief, for appellant Nathaniel M. Gaskins in No. 89-3133.

Allan P. MacKinnon (appointed by the Court) for appellant Calvin L. Thomas in No. 89-3132.

Jensen E. Barber (appointed by the Court) for appellant Antonio Donovan in No. 89-3134.

Robert A. De La Cruz, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Brenda J. Johnson, Asst. U.S. Attys., were on the brief, for appellee.

Before SILBERMAN, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge RANDOLPH.

Opinion dissenting in part filed by Circuit Judge SILBERMAN.

STEPHEN F. WILLIAMS, Circuit Judge:

On May 2, 1989 a federal jury convicted Michael Pryce, Calvin Thomas, Donovan Antonio, and Nathaniel Gaskins of committing various drug and firearm crimes. ¹ They appeal their convictions on a number of grounds. We reject all of their arguments save one: that the trial court improperly prohibited defense counsel from questioning a government witness about his history of hallucinations. On these grounds, we reverse the conviction of Nathaniel Gaskins.

* * *

On December 20, 1988 the police raided Marguerite Briscoe's apartment in Southwest Washington. There they found Thomas and Pryce, along with much crack, a little over $2000 in cash, and a nine-millimeter pistol. They also found, among other people, Briscoe's son Reginald Chandler and Reginald's cousin Anthony Chandler. Several weeks later, the police arrested the other two defendants (Antonio and Gaskins) in a nearby apartment and charged them with involvement in the drug ring.

At trial, the government offered as its principal witnesses the police officers who conducted the December 20 raid, and--for an insider's view of the drug ring--Briscoe and the two Chandlers. (Reginald, and perhaps Anthony, testified under a grant of immunity from the government.) According to the insiders, Thomas, Pryce and Antonio began living in the apartment and using it as a drug distribution center around the beginning of December, at which time Briscoe moved out. Business grew. According to Reginald, Gaskins arrived about a week or ten days later "to work with" Antonio, and then left about a week after that. The testimony generally suggested that Thomas and Pryce were the leaders of the operation, while Gaskins and Antonio were, by comparison, bit players with look-out and perhaps enforcement roles.

* * *

Our first--and most important--issue concerns the trial court's decision to prohibit defense counsel from cross-examining Anthony Chandler on his past hallucinations. Just before his cross-examination, Gaskins's lawyer told the court that he had access to a psychiatric report, dated September 26, 1988, stating that Anthony had been seeing and hearing nonexistent events. After some preliminary discussion, the court and the lawyer had this colloquy:

THE COURT: I would say this. I will let you ask him if he suffered any during the relevant time frame, but you may not go into that report or anything he may have told a psychiatrist.

MR. HAND: Very well.

THE COURT: I think, as I said, you can test the credibility of the witness and you can test the ability of the witness to observe. So you can ask him, if you want to take that risk, because it is risky.

MR. HAND: Well, may I ask him, "Do you suffer from"--

THE COURT: No.

MR. HAND: "Do you ever hear things and see things that aren't really there?"

THE COURT: Only during the time frame that he has discussed, December 1 through December 20. You can run the risk if you wish.

MR. HAND: Very well.

5/4 Tr. at 106-07. The trial court effectively ruled that any cross-examination of Anthony on his mental condition would have to begin and end with questions about that condition as it existed in December. The court thus apparently barred defense counsel from asking any questions about Chandler's hallucinations in September as a foundation for questions about his condition in December, much less as a basis for impeaching his responses about December. The court gave no explanation for its ruling.

This restriction was an abuse of the trial court's discretion to limit cross-examination on matters affecting credibility, see, e.g., United States v. Partin, 493 F.2d 750, 762-64 (5th Cir.1974); United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461, 467-69 (4th Cir.1979), and violated the confrontation clause of the sixth amendment, see Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States v. Lindstrom, 698 F.2d 1154, 1163-68 (11th Cir.1983). ² Hallucinations in September are obviously relevant to a witness's ability to discern reality in December. See, e.g., Partin, 493 F.2d at 762-64 (reversing conviction because trial court excluded evidence that government witness suffered from mental illness four months before relevant events). Physical impairments--a witness's being blind or deaf, or just myopic or hard of hearing--have long been proper subjects of impeachment. See 3 David W. Louisell & Christopher B. Mueller, Federal Evidence Sec. 342, at 485 (1979) (citing cases). Courts have extended that principle to evidence of mental illnesses that do not directly impair a witness's perception, reasoning that such evidence also affects a witness's credibility, though more obliquely. See, e.g., Partin, 493 F.2d at 762-64. See generally Louisell & Mueller Sec. 342, at 490-91. We do not appear to have specifically addressed that extension, cf. United States v. Slade, 627 F.2d 293, 304 (D.C.Cir.1980), and we do not do so here. For even if we assume that evidence of some kinds of mental illness is generally inadmissible for impeachment purposes, we think that a tendency to hallucinate is so like a direct physical impairment as to fall well within the old-fashioned rule. See, e.g., Society of Independent Gasoline Marketers of America, 624 F.2d at 467-69. Normally, therefore, a court must not keep such evidence from the jury. ³

The government argues that appellants failed to "establish a foundation" for their claim because they decided not to cross-examine Anthony Chandler on his hallucinations. At first blush, that argument seems absurdly unfair to criminal defendants, since it would require them, in cross-examining a prosecution witness, to ask the clincher question first and, upon receiving an unfavorable answer, drop the inquiry in silence. As the trial court itself admitted, that approach is quite "risky"--it could easily leave defense counsel in front of the jury holding a popped balloon, looking at once ridiculous and obnoxious.

The government relies for its foundation argument on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). The defendant in Luce had asked the trial court for an in limine decision barring the government from cross-examining him on his prior convictions if he took the stand. The court denied the motion, and the defendant did not take the stand. Upon his conviction, he challenged the court's evidentiary decision under Federal Rule of Evidence 609(a)(1). The Supreme Court held that Luce's decision not to testify foreclosed him from bringing this claim on appeal.

We have found no case considering whether Luce extends to the general problem at issue here: whether during cross-examination a party must ask "risky" question X in order to preserve his right to challenge a court's decision to keep him from asking related question Y. And the rationale of Luce appears inapplicable. First, that case concerned an in limine ruling that came well before the relevant witness was to have taken the stand and delivered his testimony. To the extent that the witness's actual testimony (or other developments in the trial) could have affected the factual context on which the ruling depended, the trial judge might have changed his ruling at the appropriate time. Id. at 41-42, 105 S.Ct. at 463. That, of course, is not the case here: at the time of the trial court's ruling, Anthony had already testified for an extended period, and if there was something about his actual testimony that could have informed the court's evidentiary ruling, it had already done so. Likewise, any judicial change of heart on the subject would have had to occur within seconds of the judge's initial ruling, a prospect far too remote to justify the government's preclusion theory.

More fundamentally, the Luce Court noted that "[b]ecause an accused's decision whether to testify seldom turns on the resolution of one factor ... a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify." Id. at 42, 105 S.Ct. at 463 (internal quotations omitted). And it expressed concern that if non-testifying defendants could appeal such rulings, they could use in limine motions "solely to 'plant' reversible error in the event of conviction." Id. Absent the Luce rule, a defendant who never intended to testify could pursue such motions as a no-lose strategy. If his motion were...