Wasko v. Dugger, 90-0312-CIV.

• Decision Date: 02 April 1991
• Docket Number: No. 90-0312-CIV.,90-0312-CIV.
• Parties: Edward WASKO, Petitioner, v. Richard DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.
• Court: U.S. District Court — Southern District of Florida

761 F. Supp. 1560

Edward WASKO, Petitioner, v. Richard DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.

No. 90-0312-CIV.

United States District Court, S.D. Florida.

April 2, 1991.

Elliott Scherker, Asst. Public Defender, Miami, Fla., for petitioner.

Julie S. Thorton, Dept. of Legal Affairs, Miami, Fla., for respondent.

MEMORANDUM ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

NESBITT, District Judge.

Edward Wasko, a state prisoner presently serving a life sentence for first-degree murder, petitions this Court for a writ of habeas corpus. The petition presents the question of whether a defendant's sixth amendment right to confront the witnesses against him is violated if he is forbidden from inquiring into the terms of a plea agreement between the state and a cooperating accomplice who is called by the defendant to testify as an adverse witness and whose credibility is impeached by other means. Finding that Petitioner's confrontation clause rights have been violated, but that the error is harmless, the Court DENIES the petition for writ of habeas corpus.

FACTS and PROCEDURAL HISTORY

The following facts are drawn principally from the opinion of the Florida Supreme Court:

On October 14, 1982, Staci Weinstein, a ten-year old girl, was found dead in her bedroom at her father's home in North Miami Beach, Florida. She had been beaten and sexually abused. A police investigation established that a "Stanley Steemer" carpet cleaning truck had been in the neighborhood the afternoon of the murder. The police initially questioned Petitioner and John Pierson, the two Stanley Steemer employees using the truck that day. Because the physical evidence implicated Pierson, the investigation eventually centered on him. However, investigators believed Petitioner to be a valuable witness, and they traveled to Ohio to question him. Wasko was questioned intensively for approximately twenty-two hours over three evenings and two days. Near the end of this questioning, Petitioner confessed to having participated with Pierson in the homicide, and he then proceeded to recount several different versions of his involvement in the murder. Investigators taped and prepared a transcript of one version of his confession, to which Petitioner made corrections prior to signing.

Pursuant to a plea agreement, Pierson pled guilty to 2nd-degree murder, attempted sexual battery, and burglary, and was sentenced to seventeen years imprisonment, with the understanding that, if necessary, he would testify against Petitioner.

At Petitioner's trial, the state theorized that Petitioner and Pierson together committed the crime. Relying principally on Petitioner's confession, the state emphasized that Petitioner possessed knowledge of details of the crime that had not been made public, willingly agreed to respond to questioning, was offered food and rest on several occasions during the interrogation, and did not complain about his treatment. The state also presented corroborating evidence placing Petitioner in the vicinity of the victim's home near the time it was committed. The state did not call Pierson as a witness during their case-in-chief.

The theory of defense was that Pierson committed the crime alone and at a time when Petitioner was working on his truck. Petitioner testified that the investigators coerced his confession by relentlessly interrogating him over many hours, giving him little food and rest, misleading him, supplying him with information about the homicide, and asking him to read into a tape and sign a prepared confession. Counsel for Petitioner also attacked the validity of the confession by pointing to its seemingly incredible assertions and by presenting evidence that Petitioner could not have been in the victim's home for the amount of time necessary to participate in the events as described.

Petitioner called Pierson to testify. Petitioner wished to elicit testimony that Pierson had sexually abused other children, had raped his ex-fiancee, and had been charged with sexual battery, but, on relevancy grounds, the court excluded this testimony from the guilt phase of the trial.¹ After Pierson testified in detail that Petitioner committed the murder and committed it alone, the court declared him an adverse witness. The court permitted Petitioner to impeach Pierson with several inconsistent statements regarding his role in the murder, and with physical evidence contradicting his testimony.

Petitioner was permitted to elicit that Pierson had pled guilty, but the trial court refused to allow him to elicit that Pierson had pled guilty to the lesser offense of second-degree murder, that he had been sentenced to seventeen years,² that he hoped to be released in eight to ten years,³ that an unrelated rape case brought against him had been dismissed, and that he had agreed to testify for the prosecution if necessary.

After deliberating for eighteen hours, the jury found Petitioner guilty of first-degree murder, burglary with a firearm, and attempted sexual battery.⁴ On appeal, the Florida Supreme Court affirmed Petitioner's convictions.⁵Wasko v. State, 505 So.2d 1314 (Fla.1987). The court dismissed the claim that the trial judge should have permitted Petitioner to elicit the specific terms of Pierson's plea agreement with the state, holding that the judge's ruling was correct because Pierson had been called by Petitioner and not by the prosecution. The Florida Supreme Court's entire analysis of this issue consisted of the following:

If Pierson had been the state's witness, the terms of the plea agreement might have been admissible to show bias or motive. Pierson, however, testified as Petitioner's witness, not the state's. We agree that Pierson's plea agreement was irrelevant in this instance and hold that Petitioner has failed to show an abuse of the trial court's discretion.

Id. 505 So.2d at 1316-17.

The trial court's prohibition of any inquiry into the terms of the plea agreement between Pierson and the state forms the basis of Petitioner's confrontation clause claim.⁶

DISCUSSION

A. Legal Standard

The sixth amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The main and essential purpose of the right of confrontation, applicable to the states, is to secure for the defendant the opportunity for effective cross-examination, Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)); Francis v. Dugger, 908 F.2d 696, 701 (11th Cir.1990), and the exposure of a witness' possible bias or motivation in testifying, including the existence of a plea agreement, is "a proper and important function of this constitutionally protected right." Delaware v. Van Arsdall, 106 S.Ct. at 1435 (quoting Davis v. Alaska, 94 S.Ct. at 1110); United States v. De Parias, 805 F.2d 1447, 1452 (11th Cir. 1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987); see also Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987).

Of course, a defendant is not entitled to limitless cross-examination concerning potential bias. Rather, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Van Arsdall, 106 S.Ct. at 1435 (quoting Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (emphasis in original)). Trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about relevance. Delaware v. Van Arsdall, 106 S.Ct. at 1435; Francis v. Dugger, 908 F.2d at 702 (quoting Van Arsdall, 106 S.Ct. at 1435). Nevertheless, this latitude comes into play only after the trial court has permitted cross-examination sufficient to satisfy the sixth amendment. United States v. Beale, 921 F.2d 1412, 1424 (11th Cir.1991); United States v. Moody, 903 F.2d 321, 329 n. 7 (5th Cir.1990); United States v. Haimowitz, 706 F.2d 1549, 1559 (11th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984); Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir.1981).

As a preliminary matter, the parties disagree on the standard applicable to a petition for writ of habeas corpus alleging a denial of the right to confrontation in a state criminal trial. Respondent argues that a habeas petitioner claiming a confrontation violation is not entitled to relief unless the state trial court's evidentiary ruling renders the criminal proceeding "fundamentally unfair." See Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984) ("Fundamental fairness is violated when the evidence excluded is `material in the sense of a crucial, critical, highly significant factor.'"), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985).

Petitioner asserts, correctly, that the "fundamental fairness" standard set forth in Boykins applies only when a habeas petitioner challenges a state trial court ruling under the due process clause of the fourteenth amendment, not when he alleges a violation of the explicit constitutional right to confront the witnesses against him.⁷ A defendant's confrontation clause rights are judged by the same standard whether in a state or federal prosecution, see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 ("we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding"); McKinzy v. Wainwright, 719 F.2d 1525, 1528 (11th Cir.1983); see also Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (distinguishing generalized claims falling under fourteenth amendment due process clause from claims of denials of "the benefit of a specific...