United States v. Dickens

• Decision Date: 10 November 1969
• Docket Number: No. 19522.,19522.
• Citation: 417 F.2d 958
• Parties: UNITED STATES of America, Appellee, v. Billy David DICKENS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.2d 958 (1969)

UNITED STATES of America, Appellee, v. Billy David DICKENS, Appellant.

No. 19522.

United States Court of Appeals Eighth Circuit.

November 10, 1969.

Murry L. Randall, St. Louis, Mo., for appellant.

James J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; James E. Reeves, U. S. Atty., St. Louis, Mo., with him on the brief.

Before VAN OOSTERHOUT, Chief Judge and LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The appellant was convicted of knowingly possessing stolen property in violation of Section 659, Title 18, United States Code. He was sentenced to ten years imprisonment. His primary contention here is that the trial court erred in restricting the cross-examination of the government's principal witness and admitted accomplice, Allen Reinhardt, and that such restriction denied the appellant the Sixth Amendment right of an accused to confront the witness against him. The appellant specifies the following restrictions of cross-examination in asserting denial of his constitutional rights:

(1) Refusal to permit inquiry as to whether the Assistant United States Attorney had promised Reinhardt immunity.

(2) Refusal to permit inquiry into the location of Reinhardt's residence.

A brief review of the direct testimony of Reinhardt and William E. Murphy, another accomplice, is necessary to an understanding of the issue raised. The testimony showed that: Reinhardt owns and operates a small machine shop in St. Louis County. He is also a part-time police officer with over fourteen years of police experience. Murphy is his employee and best friend, as well as an occasional private investigator. They both had known the appellant for approximately a year and a half, having sought him out in an attempt to locate some stolen property. Early on the morning of March 15, 1968, Reinhardt received a call from the appellant requesting the temporary use of his shop to store some TVs until the appellant could load them onto another truck. Reinhardt gave his approval and then called Murphy. Reinhardt and Murphy met and went to the shop. A short time later, at approximately 5:00 A.M., they were met by the appellant and several other men, one of whom was driving a large truck. The truck backed into the shop and unloaded. This truck was then driven away. Later that morning, the appellant and Murphy rented three other trucks. The merchandise was loaded onto these trucks and driven by Murphy, the appellant and another individual to a location in South St. Louis, where it was left. Reinhardt and Murphy subsequently received some of the merchandise which they then sold. An observation of one of these sales on April 10, 1968, led the F.B.I. to Reinhardt and Murphy in June of that year, and resulted in these charges.

The testimony of Reinhardt was extremely critical. It provided a direct link between the alleged offense and the appellant. It was corroborated primarily by Murphy and a witness related to Murphy.¹ Reinhardt was an accomplice by his own admission. If the jury believed his testimony, the appellant's conviction was a certainty. Thus, of necessity, the appellant was forced to attack his veracity and credibility. In such a situation, the necessary scrutiny can only be effected by a searching and wide ranging cross-examination. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Beaudine v. United States, 368 F.2d 417 (5th Cir.1966); Spaeth v. United States, 232 F.2d 776 (6th Cir.1956); Sandroff v. United States, 158 F.2d 623 (6th Cir. 1946). The right of a defendant to engage in such cross-examination is an essential requirement for a fair trial. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). While the scope and extent of the cross-examination is within the sound discretion of the trial court, Smith v. Illinois, supra; Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964), wide latitude is crucial when the testimony of an accomplice is involved. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L. Ed. 447 (1953), rev'g 196 F.2d 886 (7th Cir.1952); Rossi v. United States, 9 F. 2d 362 (8th Cir.1925). Cf., District of Columbia v. Clawans, supra.

The first restriction to be considered is the trial court's refusal to permit the appellant's counsel to ask Reinhardt whether an Assistant United States Attorney had promised him immunity from prosecution. The record shows that the appellant's counsel, in cross-examining Reinhardt, elicited the fact that Reinhardt had been promised immunity from prosecution while before the grand jury.² It was also brought out that Reinhardt had been arrested by police officials of the City of St. Louis in connection with his activities in this case, but never charged with an offense. However, the trial court twice sustained hearsay objections by the government when the appellant's counsel asked whether the immunity had been promised by Mr. Francis Murrell, an Assistant United States Attorney.³ Further, on closing argument, counsel for a codefendant was prevented from arguing that Reinhardt had been promised immunity in return for testifying.⁴

The basis for the government's objections is not clear.⁵ Whether or not a promise was actually made by the Assistant United States Attorney was irrelevant; the crucial factors were the witness' motive, state of mind and expectation in testifying. Spaeth v. United States, supra; Sandroff v. United States, supra.

The source and the nature of the promise — whether it was in fact made or merely existed in Reinhardt's mind — was important to the jury's determinations. The fact that Reinhardt believed the promise was made by the Assistant United States Attorney — "a representative who was in position to implement * * * any promise of consideration" — might well have affected the jury's view of Reinhardt's credibility. Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Thus, the trial court's ruling was clearly erroneous.

The government contends, however, that even if the rulings were erroneous,⁶ they were not so prejudicial as to require a reversal. We cannot agree. The Supreme Court has consistently found that where the Sixth Amendment right of cross-examination has been abridged, prejudice need not be shown:

"* * * It ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. * * *" Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1930); quoted in Smith v. Illinois, supra, 390 U.S. at 132, 88 S. Ct. at 748.

While these words were addressed to a denial of inquiry into the residence of a witness, we feel they are equally applicable here.

This is not a case in which the prohibited inquiry was merely repetitious or cumulative, the question having been fully explored earlier. See, United States v. Migliorino, 238 F.2d 7 (3rd Cir.1956); Touhy v. United States, 88 F.2d 930 (8th Cir.1937). Cf., Harris v. United States, 371 F.2d 365 (9th Cir. 1967). As we said in Touhy v. United States, supra, 88 F.2d at 934, "`* * * It is only after the right of cross-examination has been substantially and thoroughly exercised that the allowance of further cross-examination becomes discretionary with the trial court. * * *" Here, merely the surface had been scratched; the source of the promise along with its contents and nature were essential to a substantial and thorough exercise of the right of cross-examination, Napue v. Illinois, supra. The error of the lower court in restricting cross-examination into the promise of immunity compels us, therefore, to reverse the conviction and remand to the District Court for a new trial.

The appellant also asserts that the trial court's ruling sustaining an objection to cross-examination into the location of Reinhardt's residence was erroneous and requires reversal. In light of the necessity of retrial on the immunity question and the apparent concession of error by the government, it is not necessary for us to decide this question. However, since a new trial is to be granted, we will discuss the issue. We agree that the ruling was erroneous. Smith v. Illinois, supra; Alford v. United States, supra. As was said in Alford and reiterated in Smith:

"The question `Where do you live?\' was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed." 282 U.S. at 693, 51 S.Ct. at 220; 390 U.S. at 132, 88 S.Ct. at 748.

The government argues that since the testimony indicates that the appellant was familiar⁷ with Reinhardt and that Reinhardt was placed in his general environment, the requirements of Alford v. United States, supra, were met. We cannot agree. A similar argument was made by the Seventh Circuit in United States v. Garafolo, 385 F.2d 200 (7th Cir.1967). There, the principal witness was allowed to be questioned concerning his address at an earlier point in time, his cooperation with the government in this case, his previous convictions and arrests, possible monetary compensation, and possible promises of leniency; but not as to his address at the time of trial. In affirming the conviction, the Court said:

"* * * The witness was sufficiently identified with his community to enable appellant to investigate his reputation for truth and veracity in that community. His personal character was deeply probed by defense counsel." 385 F.2d at 207.

On certiorari, the Supreme Court vacated the judgment of the Court of Appeals and remanded ...