U.S. v. Turner, 96-1857EMCG

• Decision Date: 26 February 1997
• Docket Number: No. 96-1857EMCG,96-1857EMCG
• Citation: 104 F.3d 217
• Parties: 46 Fed. R. Evid. Serv. 446 UNITED STATES of America, Appellee, v. John Henry TURNER, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 217

104 F.3d 217

46 Fed. R. Evid. Serv. 446

UNITED STATES of America, Appellee, v. John Henry TURNER, Jr., Appellant.

No. 96-1857EMCG.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 19, 1996.

Decided Jan. 13, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 26, 1997.

Michael A. Moroni, Bloomfield, MO, argued, for appellant.

Larry Howard Ferrell, Assistant U.S. Attorney, Cape Girardeau, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and LONGSTAFF, ^* District Judge.

LONGSTAFF, District Judge.

Appellant John Henry Turner Jr. was charged in an eight count indictment. Seven counts charged Turner with distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and one count charged Turner with conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and 846. On December 15, 1995, a jury returned a verdict finding Turner guilty on all counts. On March 19, 1996, the district court ¹ sentenced Mr. Turner to 372 months of imprisonment.

In this direct appeal, Mr. Turner challenges his conviction on five grounds. First, Turner states that the trial court committed reversible error in denying his motion for judgment of acquittal or new trial based upon the Government's failure to inform him of a Government witness' seizure disorder in violation of Brady v. Maryland. Second, Turner argues that the district court abused its discretion by not allowing evidence of hospital records relating to the prior medical history of the same Government witness. Third, Turner asserts that the trial court abused its discretion by refusing to take judicial notice of several medical texts and in refusing to permit his trial counsel to read to the jury from these books. Fourth, Turner states that the trial court abused its discretion by allowing the testimony of a witness pursuant to Federal Rule of Evidence 404(b). Lastly, Turner argues that the district court abused its discretion by refusing to permit him to cross-examine a Government witness about other specific instances of drug activity.

I.

The cocaine distributions in the present case took place during a series of controlled buys between January 12, 1995 and March 2, 1995. Each buy was made by an informant for the Federal Drug Administration, Ronald Bradford. These transactions were observed by law enforcement officers and sometimes the conversations between the participants were recorded. Bradford purchased crack cocaine from Turner on six separate occasions and also made one controlled buy from Darrell Cammon, a witness for the Government at trial, involving cocaine that had been supplied to Cammon by Turner.

At trial, Bradford testified that on February 9, 1995, he met with Turner and paid a debt of $350 that he owed Turner. Turner seemed agitated and Bradford was concerned that Turner might believe that he was an informant. Then, in a later taped telephone conversation, Turner stated to Bradford that he thought somebody was "snitching." Turner also indicated that if he thought Bradford was snitching on him, Bradford would definitely have known about it. Bradford testified that after this conversation he became concerned for his safety because he had been previously beaten up for providing assistance during a separate investigation. ² Bradford indicated that he had to seek medical treatment as a result of this beating.

On cross-examination, Turner's counsel inquired into the particulars of the assault and Bradford's treatment. Turner's counsel then obtained Bradford's medical records which indicated that on February 5, 1995, Bradford was present at the emergency room of a hospital and stated that he had been mugged and complained of pain in the face, back, and a laceration of the scalp. The records also indicated that on June 23, 1992, July 22, 1992, and January 24, 1993, Bradford had been treated at the hospital emergency room for what the records referred to as a "seizure disorder."

On the last day of trial, Turner offered Bradford's entire medical records into evidence and took the position that no expert testimony was necessary regarding the "seizures" because they are within the common knowledge of the jury. Turner argued that, insofar as they revealed seizures, the records were admissible to give an alternative explanation for the injuries Bradford stated he received as a result of an assault which he was treated for on February 5, 1995. The district court denied the admission of the hospital records. Turner then asked the court to permit him to read a portion of some medical texts relating to the term "seizure." The court declined to take judicial notice of the texts and did not permit any portion of them to be read to the jury.

Darrell Cammon was another Government witness to testify at the trial. Cammon was arrested on March 21, 1995, for selling cocaine base to Bradford. The cocaine base had been supplied to Cammon by Turner. Following Cammon's arrest he began to cooperate with law enforcement officials and testified at trial. During the cross-examination of Cammon, Turner's counsel attempted to inquire about an incident in which Cammon was arrested with two other individuals in a car with a large sum of money and a gun. Cammon had not been convicted of this offense. The Court did not allow Turner's counsel to inquire into these matters.

The Government also called Marcus Jimerson to testify at the trial. As a result of pleading guilty to the charge of possession with intent to distribute cocaine base several years earlier, Jimerson was incarcerated in the Bureau of Prisons in Texarkana, Texas. Jimerson testified that he began to associate with Turner in June or July of 1990 and served as an occasional supplier of drugs for Turner until his arrest in December of 1992. The district court read the jury a limiting instruction concerning the use of Jimerson's testimony at the time he began to testify about the drug transactions with Turner.

II.

Turner first contends that the Government violated the Brady rule by failing to disclose that Ronald Bradford, an informant-witness, had been treated for a seizure disorder. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

In order to establish a Brady violation, Turner must demonstrate that the "prosecution suppressed the evidence, the evidence was favorable to the accused, and the evidence was material to the issue of guilt or punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995) (citing Prewitt v. Goeke, 978 F.2d 1073, 1078 (8th Cir.1992)), cert. denied, --- U.S. ----, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). "[T]he Brady rule applies to impeachment evidence, as well as to exculpatory evidence." U.S. v. Jones, 34 F.3d 596, 599 (8th Cir.1994) (quoting United States v. Wayne, 903 F.2d 1188, 1192 (8th Cir.1990) (citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972))), cert. denied, 514 U.S. 1067, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995).

Under the first prong of the Brady analysis, "the government has no affirmative obligation to discover potentially exculpatory information which it neither possessed nor was aware of." United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996) (quoting United States v. Dunn, 851 F.2d 1099, 1101 (8th Cir.1988)), cert. denied, --- U.S. ----, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996). As a result, there is no Brady violation if the government does not "possess" the material at issue. Jones, 34 F.3d at 599 (citing United States v. Tierney, 947 F.2d 854, 864 (8th Cir.1991)).

In the present case, it is undisputed that the information concerning Bradford's seizure disorder was never in the possession of the Government. In fact, Bradford's seizure disorder was discovered as a result of a subpoena issued during trial by defense counsel. Because the Government was neither aware of nor in possession of any information concerning the informant-witness' alleged seizure disorder, it cannot have violated the Brady rule.

In addition, evidence is material under the Brady rule only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. Given the substantial amount of evidence indicating that Turner was guilty and the minimal effect, if any, that knowledge of the seizure disorder would have, it is clear that the outcome of the case would not have been undermined by the admission of the medical records.

III.

Turner next argues that the district court erred by not allowing into evidence the hospital records relating to the prior medical history of Ronald Bradford. Turner asserts that the hospital records are admissible to demonstrate that Bradford, a witness-informant in the present case was not beaten up as he testified, but rather, had a seizure that injured him.

The admission or exclusion of evidence is committed to the sound discretion of the district court and will not be disturbed unless there has been a clear abuse of discretion. West v. Carson, 49 F.3d 433, 435 (8th Cir.1995) (citation omitted). The only relevance of the hospital documents is to impeach Bradford. Under Federal Rule of Evidence 608(b), specific instances of conduct for the purpose of attacking a witness' credibility cannot be proven by extrinsic evidence. Federal Rule of Evidence 608(b). Therefore, the district court did not err by refusing to admit the extrinsic evidence, the medical records, to attack...