United States v. Kearney

• Decision Date: 15 August 1969
• Docket Number: No. 22411.,22411.
• Citation: 136 US App. DC 328,420 F.2d 170
• Parties: UNITED STATES of America v. Lawrence KEARNEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 328, 420 F.2d 170 (1969)

UNITED STATES of America v. Lawrence KEARNEY, Appellant.

No. 22411.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1969.

Decided August 15, 1969.

Petition for Rehearing Denied September 11, 1969.

Mr. Joseph Forer, Washington, D. C., with whom Mr. M. Michael Cramer, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. Roger E. Zuckerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, and Victor W. Caputy, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

Appellant, indicted for first-degree murder and convicted of second-degree murder, protests numerous rulings. We have pondered this appeal carefully and conclude that the trial judge accorded a fair trial.

I. Trial Testimony — The facts as developed by Government witnesses established the following: At 10:30 p. m. of Thanksgiving Day, November 23, 1967, Officer Silvia of the District Police force was cruising in the vicinity of 16th and Corcoran Streets, Northwest. He noticed a man tinkering with a parked car. Holding a flashlight on his badge, he approached the parked vehicle and identified himself to the man behind the wheel. The man moved across the seat and out of the car, reached into his coat, pulled out a pistol and shot Silvia in the abdomen. Sometime later Silvia was found and taken to the hospital in critical condition. An emergency operation was to no avail and Silvia died on November 25, during a second operation.

The Government's main witness was Stanley Warren, an eyewitness to the shooting. Warren's narrative was corroborated, by Detective Crooke's hearsay testimony, admitted over objection, of the account of events which Silvia had given to Crooke in an interview at the hospital around 10:30 a. m., the morning following the shooting. Silvia was then in the intensive care unit, having recovered about an hour earlier from the anaesthetic administered in the first operation. (That operation began at 11:50 p. m. — within an hour after the shooting — and lasted until 3:30 a. m.) Other evidence connecting appellant to the crime was the expert testimony that identified palm prints, lifted from the car at the murder scene, as those of appellant.

Ballistics evidence was also introduced tending to show that appellant could, at least, have had access to the kind of gun that fired the fatal bullet. This evidence consisted of a live cartridge of .38 caliber removed from appellant's drawer at his home and a spent .38 slug removed from the front door of appellant's apartment. A witness, William Isler, also testified that appellant had offered to sell him a .38 caliber pistol and that appellant had demonstrated the gun by firing it into a log in Isler's backyard. The slug was .38 caliber. The expert testimony was that the bullets recovered from appellant's dwelling and the log were too mutilated to permit any definitive conclusion as to whether they came from the same weapon that killed Silvia. The only firm conclusion was that all the bullets could have come from the same weapon.

In addition to this evidence the Government presented proof of appellant's blood type showing that it was of the same category as some blood removed from the driver's side of the car.¹

Appellant testified that at the time of the shooting he was at a party in his own home that he was giving for his wife. Several of his friends related a similar story. He also called a fourteen year old boy who claimed to have witnessed the shooting from a block away, and who identified the killer as a man taller than appellant. On cross-examination the witness admitted that his opportunity to observe was limited.

II. Affirmance of Ruling Deferring Impeachment of Witness Through Showing of Narcotics Use — We turn to the claim that there was error in the judge's limitation of the effort of defense counsel to cross-examine Warren on his use of narcotics.

Defense trial counsel commendably raised the question before the judge out of the hearing of the jury, stating that he intended to ask questions on cross-examination that he anticipated might be objected to by the prosecutor, and that he desired an advance ruling to avoid a possibility of undue prejudice of the jury. Counsel said he would like to ask Warren whether he is a narcotics user and whether he was on narcotics when he gave a statement to the police. The prosecutor objected that these are improper questions unless defense counsel had a basis for them.

The transcript continues:

Defense counsel: And I think, therefore, it has some degree of relevance. We have information that he is a narcotics user.

Prosecutor: Oh, no. Unless you want to put on evidence on that, I object. You have got to have a basis for it.

The Court: Bring that out with a police officer.

Prosecutor: As to narcotics use. You have to have a basis for it.

The Court: Then this boy can come back on rebuttal.

Defense counsel: Will the police officer be here, the one who took the statement?

Prosecutor: I don\'t remember. You got a copy. I don\'t remember who the police officer is.

Defense counsel: Do you want me to bring the copy up your Honor?

The Court: No. * * * I don\'t want it from any kind of statement. I want it from the person who took the statement. * * * I want you to ask Crooke it having been shown that Crooke took the statement from Warren.

Prosecutor: Unless he knows what Crooke is going to say. If he doesn\'t know that Crooke is going to say it, if Crooke denies it, then it is improper, it is an improper question.

Here defense counsel went on to a different point.

Defendant's appellate counsel argues that the cross-examination was plainly proper on the ground that the habitual use of drugs is permissible to impeach credibility,² and that it also related to possible impairment of the witness's ability to observe. Counsel relies on Wilson v. United States, 232 U.S. 563, 34 S.Ct. 347, 58 L.Ed. 728 (1914),³ which held it improper for a judge to limit cross-examination of an admitted drug user to ascertain the extent of use at trial time and to explore the effect on his testimonial power of recollection.

Apparently trial counsel did not take the matter up with Crooke. But the issue of Warren's drug use did surface at the trial when defendant testified, on cross-examination, that Warren testified against him because he was a "young dope fiend." On rebuttal summation the prosecutor argued to the jury that this was self-serving testimony without foundation other than defendant's testimony.

The problem takes a new turn on appeal with the assertion in the brief of defendant's appellate counsel that Crooke's written resume of his interview with Silvia, which had been given defense counsel under the Jencks Act, contains the statement that Silvia told Crooke that the second man at the scene (i. e. Warren) "might be a junkie because of something about his eyes that he could not describe." This was omitted by Crooke when he gave detailed testimony of the statements made to him by Silvia.

The presence of this item in the Government's file may have significance in view of the prosecutor's objection to defense cross-examination for lack of basis. On the other hand, defense counsel did not refer to the Silvia statement. This portion of the Silvia statement is not in the record before us, and the issue could not become dispositive unless it were.⁴

To dispose of this case, let us step back to gain perspective. Certainly defense counsel is entitled to broad latitude in examination of prosecution witnesses to impeach credibility. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 736 (1931). And in general it is undeniable that it may be proper to develop the matter of drug addiction in an effort to attack a witness's competency and capacity to observe, remember and recall.⁵ On the issue whether this is material to credibility in terms of veracity, the authorities are in disarray.⁶

We need not explore this point at length for the disposition in the trial court was intended not to preclude an exploration of the issue, but to defer cross-examination pending establishment of a foundation for the questions.⁷ All rules as to admissibility of evidence are subject to supervening considerations that seek to avoid substantial danger of undue prejudice or jury confusion.⁸ The issue of narcotics use is one that may properly be handled with some sensitivity lest it result in undue and unnecessary prejudice. There is an interest in avoiding undue evidentiary assault on prosecution witnesses. Davis v. United States, 133 U.S.App.D.C. 167, 409 F.2d 453 (Feb. 18, 1969). Prejudice may result if questions asked for the limited purpose of testing, say, opportunity to observe, are permitted to generate a hostility based on the general odium of narcotics use.

A judge may not fairly block all probing of an issue like narcotics use by the prosecution's sole eye witness to a murder. On the other hand, as defense trial counsel himself recognized, the matter of drug addiction, which involves social transgression and the possibility of illegal conduct, is properly approached with awareness of the potential for prejudice of the jury. In some cases the desirable procedure may lie in permitting defense counsel to establish his foundation by questioning the witness out of the hearing of the jury, as is common-place in a hearing preceding a determination of a witness's competency.⁹

In the particular case before us, the trial judge proposed a different course that seemed feasible and fair because of the presumed availability of the foundation evidence through Detective Crooke, and defense trial counsel did not indicate otherwise.

We have determined not...