U.S. v. Wallace, 83-1629

• Decision Date: 09 December 1983
• Docket Number: No. 83-1629,83-1629
• Citation: 722 F.2d 415
• Parties: 14 Fed. R. Evid. Serv. 1098 UNITED STATES of America, Appellee, v. Eric WALLACE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 415

722 F.2d 415

14 Fed. R. Evid. Serv. 1098

UNITED STATES of America, Appellee, v. Eric WALLACE, Appellant.

No. 83-1629.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 5, 1983.

Decided Dec. 9, 1983.

Thomas E. Dittmeier, U.S. Atty., Henry J. Fredericks, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Christopher T. Hexter, Schuchat, Cook & Werner, St. Louis, Mo., for appellant.

Before ROSS, ARNOLD, and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

Eric Wallace appeals from his conviction for being a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1). The sole issue on appeal is whether the District Court ¹ committed reversible error when it permitted the prosecutor to ask Wallace if his probation for a prior conviction had been revoked. The District Court believed that this question was appropriate to dispel a false impression that defendant's direct examination might have left. We hold that this ruling was not an abuse of discretion, and we therefore affirm.

I.

On July 3, 1982, after responding to a call that firearms were being flourished on a street in St. Louis, police officers arrested Eric Wallace and seized a fully loaded .38 caliber revolver. Wallace was tried before a jury in April 1983 on a charge of being a convicted felon in possession of a firearm. ² During the course of the three-day trial, Wallace took the stand in his own defense. On direct examination, defense counsel asked him a number of background questions, including his address, and the date, place, and sentence received for his prior felony conviction. Wallace testified that he had been placed on three years' probation, subject to five years' imprisonment if he violated the terms of his probation. He also testified that the rules of his probation prohibited possession of firearms.

On cross-examination, the Assistant United States Attorney asked the following question:

Q. And since that time there has been a revocation of that probation, is that correct?

A. That's correct.

Q. And so you are currently not residing at [the St. Louis address mentioned on direct]?

A. That's correct.

Immediately following this exchange, defense counsel moved for a mistrial on the ground the prosecutor's questions were irrelevant to Wallace's guilt or innocence in the present case. In the alternative, defense counsel asked that the jury be instructed that the information was irrelevant and prejudicial. ³ The Government responded that the purpose of the questions was to clarify the record because Wallace's testimony created the impression he was still on probation, when in fact his probation had been revoked. ⁴

The trial judge agreed that the jury had been left with the impression Wallace was on probation. He denied the motion for mistrial, noting that the challenged questions were not directed at establishing Wallace's guilt or innocence, but at impeaching his credibility. The jury found Wallace guilty as charged, and he was sentenced to two years' imprisonment. This appeal followed.

II.

The trial court has broad discretion in determining the relevancy and admissibility of evidence, United States v. Eckmann, 656 F.2d 308, 312 (8th Cir.1981); United States v. Bernhardt, 642 F.2d 251, 253 (8th Cir.1981), and in setting the limits of cross-examination. See Roberts v. Hollocher, 664 F.2d 200, 203 (8th Cir.1981); Fed.R.Evid. 611(b). Similarly, in determining whether the probative value of evidence outweighs the danger of unfair prejudice, great deference must be given to the trial judge who heard the evidence. See, e.g., United States v. Boykin, 679 F.2d 1240, 1244 (8th Cir.1982); United States v. Drury, 582 F.2d 1181, 1185 (8th Cir.1978). If a defendant takes the stand, his credibility is placed in issue, and the Government is entitled to attack it by cross-examination. United States v. Webb, 533 F.2d 391, 396 (8th Cir.1976). Counsel should be given wide latitude in cross-examination. See United States v. Pfeiffer, 539 F.2d 668, 671 (8th Cir.1976).

In the present case, Wallace testified on direct examination that he pleaded guilty to two felonies in August of 1981. He also testified that he was placed on three years' probation as a result of the conviction, and that he lived...