U.S. v. Robinson, 75--1535

• Decision Date: 20 February 1976
• Docket Number: No. 75--1535,75--1535
• Citation: 530 F.2d 1076,174 U.S.App.D.C. 224
• Parties: , 2 Fed. R. Evid. Serv. 1092 UNITED STATES of America v. Garnell S. ROBINSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1076

530 F.2d 1076

174 U.S.App.D.C. 224, 2 Fed. R. Evid. Serv. 1092

UNITED STATES of America v. Garnell S. ROBINSON, Appellant.

No. 75--1535.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 21, 1975.

Decided Feb. 20, 1976.

Harry A. Huge, Washington, D.C. (appointed by this Court), with whom Kenneth V. Handal, Washington, D.C., was on the brief for appellant.

Peter E. George, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Carolyn R. Kleiman, Asst. U.S. Atty., Washington, D.C., were on the brief for appellee.

Before DANAHER, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and VAN PELT, ^* United States Senior District Judge for the District of Nebraska.

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction, under 21 U.S.C. § 841(a), for sale of narcotics to an undercover police officer on two occasions, on November 2 and November 8, 1974. The court suspended imposition of sentence and put the defendant, appellant in this court, on three years' probation with three-year special parole treatment.

I.

The first issue arises from appellant's motion to disclose the identity of a reported informant. This was considered by the court prior to trial, after it heard testimony of the detective on appellant's motion to suppress statements made to police. The prosecutor offered to have the undercover officer testify that on the two occasions embraced in the indictment no other person besides the officer and the defendant was present. The court stated that in the absence of any showing that informant was present, whether by testimony of defendant or by cross-examination of the officer, there was no basis for producing the informant. Defense counsel declined either to put defendant on the stand or cross-examine the officer. In this state of the record, we agree that there was no showing of need that required the trial court to order the government to produce the informant.

II.

A more substantial question is raised by the government's introduction in its direct case, over the objection of defense counsel, of testimony by the police officer as to an incident alleged to have taken place on November 19th, subsequent to the dates of the transactions charged in the indictment. Officer Walker testified that on that date, as he was leaving a pool hall, defendant approached him and said (Tr. 69): 'Somebody told me you were a roller. ¹ Let me tell you for your own good, take it any way you want to take it, don't come up here any more.' Defense counsel objected on the grounds that this was prejudicial and irrelevant. The trial court overruled the objection stating (Tr. 68): 'I am sure it is prejudicial, but I think the relevance of it is prejudice.' Presumably this was a misstatement, either by the judge or the reporter, and in all likelihood the judge intended 'I think the prejudice arises from its relevance.'

There was prejudice here, because the import of the statement was to suggest that defendant not only was engaged in selling narcotics but was quite prepared to use violence with respect to policemen. The government claims that the prejudice was outweighed by its materiality. While the avowed purpose of this testimony was to explain why investigation of defendant had terminated, ² its materiality is now said to lie in corroborating the identification of defendant by Officer Walker. Although Officer Walker's own testimony was to the effect that he had seen defendant seven times prior to November 19, government counsel argues that since identification was the central issue, given the defendant's denial of involvement in the two transactions in the indictment, the intensity of the November 19th encounter corroborates the contested identification, as it can be inferred that Walker would pay close attention to a person who had made this kind of threat. There is at least an edge of relevance on the issue of identification. The government also argues that Walker's testimony was probative of defendant's consciousness of guilt, showing that the sales by the defendant had been made knowingly and intentionally.

While we have some difficulty with the trial judge's failure to engage in a reflective weighing of the prejudice against the materiality, it is our view that the admission of Walker's testimony ³ fell within the range of discretion of the trial judge. We particularly take into consideration that while Walker's testimony that defendant told him 'don't come up here any more' was prejudicial, the purported threat was relatively indefinite, in total effect almost tepid, so that we do not have the impact of a severe distortion. There are limits to the extent to which inflammatory material can come in to corroborate identification, and we might indeed find prejudicial error if, say, testimony that defendant had been seen battering a six-year-old child were admitted on an identification rationale. Here, the testimony was not of a nature as to raise serious danger that 'defendant might be convicted of being a 'bad man' in the eyes of the jury rather than of the crime for which he is on trial.' United States v. Fox, 154 U.S.App.D.C. 1, 5, 473 F.2d 131, 135 (1972).

III.

Finally, error is claimed in the admission of Officer Walker's rebuttal testimony. Defendant, on direct, characterized his relationship with his alibi witness, Ruben Luke, as a friendship involving occasional borrowing and lending of money between paydays, and denied any recollection of having had a conversation with Officer Walker. Luke, on direct, similarly portrayed himself as a close friend of defendant who occasionally lent money to him and borrowed money from him, and denied knowing Walker or having seen him at the scene of the transactions charged in the indictment. On cross-examination, Luke denied having any business relationship with defendant and categorically denied ever having a conversation with Walker or ever having sold narcotics to him or anyone. In rebuttal, Walker testified to Luke's having driven defendant to the scene of the November 2nd transaction; to statements made to Walker by defendant to the effect that Luke was a joint venturer with defendant in the buying and selling of drugs; and to sales made to Walker by this alibi witness. The trial judge then elicited from Walker that charges were brought against Luke but later dropped, with defense counsel pursuing this point on cross and further inquiring into why the charges were dropped.

On the appeal, counsel asserts three bases of reversible error arising from this rebuttal testimony: (1) Walker's testimony regarding defendant's statements and prior transactions with Luke was inadmissible to impeach Luke's credibility because it constituted extrinsic evidence of misconduct for which there had been no conviction. (2) Walker's testimony that charges not resulting in conviction were brought against Luke for alleged narcotics dealings was inadmissible under this court's ruling in United States v. Marynard, 155 U.S.App.D.C. 223, 476 F.2d 1170 (1973). And (3) Walker's testimony regarding defendant's statements was inadmissible to impeach Luke because it constituted hearsay.

Ordinarily a witness may not be impeached as to credibility by producing extrinsic evidence of prior instances of misconduct short of conviction. And if the witness stands his gound and denies the alleged misconduct, the examiner must 'take his answer' and cannot call other witnesses to prove the discrediting acts, lest the trial spin off into a series of sub-trials on collateral issues both confusing and time-consuming. This rule stands firm enough when the question is one of impeaching the general credibility of the person as a witness. It does not apply, however, so as to limit or exclude proof of conduct by the witness evidencing a specific bias for or against a party. 3A Wigmore, Evidence § 948 (Chadbourn Rev. 1972). 'Bias is never classified as a collateral matter which lies beyond the scope of inquity, nor as a matter on which an examiner is required to take a witness's answer. Bias may be proved by extrinsic evidence even after a witness's disavowal of partiality.' 3 Weinstein's Evidence P607(03), at 607--17 (1975).

The dominant principle is that evidence showing the 'emotional partiality' ⁴ of a witness 'is always significant in assessing credibility,' for 'the trier must be sufficiently informed of the underlying relationships, circumstances and influences operating on the witness so that, in light of his experience, he can determine whether a mutation in testimony could reasonably be expected as a probable human reaction. Courts are therefore very liberal in accepting testimony relevant to a showing of bias.' 3 Weinstein's Evidence, supra. As this court stated in Maynard: ⁵In certain situations . . . external facts from which may be inferred a specific bias, or motive to testify in a particular way, are admissible to impeach a witness--e.g., facts which show a familial, employment, or litigious relationship. Since the range of facts from which bias may be inferred is vast, hard and fast rules permitting or excluding specific types of impeachment evidence might be unwise.

155 U.S.App.D.C. at 227, 476 F.2d at 1174 (citations omitted). It is thus a matter for the sound discretion of the trial court whether the proferred impeachment evidence is probative of bias, and if so whether its probative worth is outweighed by its prejudicial impact or should otherwise be excluded.

The record, in our view, demonstrates that the rebuttal testimony was not directed at generally discrediting Luke's character or veracity, but was aimed at showing specific matters that were probative of Luke's bias in favor of defendant and against the government. In their testimony on direct, defendant and his alibi witness attempted to paint a picture of a simple friendship involving periodic loans to each other and forswore any contact with Walker. On...