U.S. v. Smith, 90-2257
| Decision Date | 25 May 1993 |
| Docket Number | No. 90-2257,90-2257 |
| Citation | 997 F.2d 674 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terry SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Louis P. McDonald, Albuquerque, for defendant-appellant.
Paula Burnett, Asst. U.S. Atty., Albuquerque, NM (Don J. Svet, U.S. Atty., and James T. Martin, Asst. U.S. Atty., Albuquerque, NM, on the brief), for plaintiff-appellee.
Before McKAY, Chief Judge, HOLLOWAY, Circuit Judge, and BELOT, * District Judge.
Defendant-appellant Terry Smith, convicted after a jury in the District of New Mexico found him guilty of assault with a dangerous weapon with intent to do bodily harm, appeals from the district court's denial of his post-conviction motion for a new trial on the grounds of newly discovered evidence. Smith contends, inter alia, that the trial judge's comments caused his key witness for the hearing on the motion to claim her Fifth Amendment privilege and decline to testify. Smith says the judge's warning thus violated the rule of Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). We disagree and affirm.
Around midnight on July 10, 1987, an officer of the Navajo Division of Public Safety was called to a trailer house in Shiprock, New Mexico, to investigate a report of a disturbance. Arriving at the trailer, the officer observed a four-wheel-drive vehicle, a white GMC "Jimmy," speeding away from the scene. During the chase that ensued, an occupant of the Jimmy riding on the passenger side of the front seat fired one shot in the direction of one of the police vehicles in pursuit. The shot pellets struck the passenger side of the windshield of the police car.
Eventually, the Jimmy stopped and police cars stopped nearby, the closest one approximately 25 or 30 yards away. Under a spotlight, the officers could see a man standing beside the Jimmy. The man beside the Jimmy fired a shotgun in the direction of the nearest officer, who was standing behind the open driver's side door to his vehicle. Though most of the shot pellets hit the front of the police vehicle, several pellets struck the officer's face and one hand. The officer was wounded slightly. An indictment in the District of New Mexico charged the defendant with firing the shot that wounded the officer, and charged his brother, Lloyd Smith, with firing the earlier shot from the moving vehicle.
At trial, Terry Smith's defense was that his brother, Lloyd, had fired the shots that wounded the officer. Some of the government's evidence, primarily the officers' general description of the shooter, pointed to the defendant. The officers testified that the shooter was too thin to have been the defendant's much heavier brother, and that the gunman had worn a white, or light-colored, shirt similar to the shirt the defendant was wearing when he was arrested the next day.
The government's case rested largely on the testimony of the defendant's ex-girlfriend, Victoria Scott, who had been a passenger in the Jimmy. 1 Scott testified that the defendant, wearing a white shirt, had exited from the truck with two other men just before the officer was shot. She said that the defendant had stood beside the truck and had fired twice in the direction of the police car. Though Scott testified that she was "ducked down" in the back seat when the shots were fired, III Supp.R. 95, she stated she was certain that Lloyd was not the shooter. Scott's testimony, while corroborated by other evidence, thus provided the only positive identification of Terry Smith as the shooter. Scott was 15 years old at the time of the shooting, and was 16 when she testified at the defendant's trial.
The defendant and his brother were tried separately. At the conclusion of the trial in August 1988, the jury acquitted the defendant of assault with intent to murder by use of a dangerous weapon, as charged in count one of the indictment, but convicted him of a lesser included offense of assault with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C. § 113(c). The district court sentenced the defendant to serve five years' imprisonment, and we affirmed by an unpublished order and judgment. United States v. Smith, No. 88-2737 (10th Cir. Apr. 10, 1990). 2
Following the defendant's sentencing, Scott signed two affidavits in which she recanted key portions of her trial testimony. In one of the affidavits, dated June 29, 1989, Scott claimed: "I never stated that it was Terry Smith who did the shooting, I was told to duck down when the police were shooting over us, so I could not see who was doing the shooting." Appellant's Brief App. B. 3 In the same affidavit, Scott also claimed that she did not recall saying that the defendant was wearing a white shirt on the night of the shooting. Id. 4 In the other affidavit, dated June 30, 1990, Scott claimed an FBI agent had coerced her into giving false testimony implicating the defendant. Id. App. C.
On August 15, 1990, the defendant filed, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a motion for a new trial on the ground of newly discovered evidence. I Supp.R.Doc. 114. Citing Scott's statements in the affidavits recanting her trial testimony, the defendant claimed in general that an FBI agent had coerced Scott to identify the defendant falsely as the assailant. The motion was assigned to the judge who had presided at Terry Smith's trial. He appointed counsel for Scott. Id. Doc. 125. On October 16, 1990, the trial judge held an evidentiary hearing on the motion with Scott as the first witness.
As soon as Scott had answered a few preliminary questions, the judge interrupted her, asking:
....
THE COURT: Here's where I am. Counsel is telling me that she's going to recant her testimony from the previous trial. If that's the situation, then it would seem to me that if she testified at the first trial, and she now says that testimony is not correct and recants that testimony, she comes squarely under the perjury statute and ten years.
II R. 5-7. The judge then reviewed the affidavits, and continued the colloquy with counsel by remarking:
[THE COURT:] We've got a problem, Counsel.
....
[PROSECUTOR]: ... I think that this witness faces considerably more risks and exposure by making a sworn statement under oath in this court proceeding with regard to perjury....
... That affidavit at this time simply constitutes evidence that her prior sworn testimony is false. It would be only evidence as to perjury. However, ... if she comes here today, and she testifies in this court proceeding under oath that what she's said previously at the prior court proceeding was false, then it's automatically perjury, because there is inconsistent sworn testimony under [18 U.S.C. § 1623]. So I think that she does, by testifying here today, expose herself to ... considerably more risk and exposure than she faces currently under the affidavit that she's submitted at this time.
[WITNESS' COUNSEL]: Your Honor, I agree with that. I have talked to my client at length.... She realizes the position that she's in.... She will state that she felt [coerced], that she was not truthful, she felt threatened and that she ... did not testify truthfully at that time, and that it bothered her so much that it bothered her in school.
She discussed the matter at length with her family, and she wants to come forward regardless of the consequences to her. I have advised her of those consequences and the position that she's putting herself into, and she wants to testify.
THE COURT: Well, okay. I heard the trial. I've been all through everything Mr. Smith has said. And my problem is more [of] a judicial problem is that my mind is of such a set from having read her affidavit, having heard her testify before, having heard [the FBI agent] testify is that I don't think I'm going to believe her. I'm going to have another judge try this.... [F]irst of all, I don't think she understands that she's probably looking--this is a guideline sentence, ten years. And she's probably looking, under the guidelines, at at least 60 months.
....
... [T]he easiest thing in the world for the government to prove is that you testified one way one day, and you're testifying another way today, and that equates probably to about--the sentence is up to ten years in prison.... And the thing that bothers me is, from reading your affidavit and hearing [the FBI agent] and having been through this before, that I'm not going to believe you.
I don't know--I'm going to transfer it to another judge....
II R. 9-12.
The judge and counsel next discussed the propriety of recusal. The judge commented:
I guess one of the things that bothers me the most is that I'm sitting here, in essence, and I, maybe ashamedly so, am prejudging her, that I'm not going to believe her testimony because I've heard it all once. I've heard [the FBI agent]. And it just doesn't make any sense what she's saying. And it makes me feel like here I am letting this young lady perjure herself, looking at ten years, all for nothing.
Later in this October 16, 1990, hearing, one of the defense attorneys noted "for the record" that "my version of the statute indicates that the maximum penalty [for perjury] is five years," not 10 as the judge had stated. Id. at 16. The judge replied, Id.
The judge recessed the hearing for some...
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