Watkins v. Foster
| Decision Date | 26 January 1978 |
| Docket Number | No. 77-1014,77-1014 |
| Citation | 570 F.2d 501 |
| Parties | Superintendent E. C. WATKINS et al., Appellants, v. Willie FOSTER, Jr., Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Patricia B. Hodulik, Associate Atty., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellants.
Valerie K. Leonhart, Baltimore, Md., and Brigid K. Henrie, Third Year Law Student (Michael S. Elder, Michael A. Millemann, Joyce R. Branda, The Legal Services Clinic, Baltimore, Md., on brief), for appellee.
Before RUSSELL, WIDENER and MOORE, * Circuit Judges.
On February 19, 1973, Willie Foster was tried in a North Carolina state court for first degree burglary. The prosecution's only evidence was a photographic enlargement of a fingerprint matching Foster's, found on a flowerpot in the burglarized house. The television set, record player, and cash, which were missing from the house, were never recovered. No identification was made of Foster. Foster and his wife both testified that he was at home on the night of the alleged burglary. On cross-examination, the prosecutor asked Foster, in detailed questions, whether he had committed six prior acts involving breaking into people's homes. Foster denied committing any of them. The jury found Foster guilty and he was sentenced to life imprisonment.
We hold that the cross-examination as to prior acts was highly prejudicial and deprived Foster of a fair trial. Accordingly, we affirm the district court's judgment, granting a writ of habeas corpus and setting aside Foster's conviction.
Early in the morning of September 5, 1972, the home of James Harley Davis was burglarized. As a result of a fresh paint job in Mr. Davis's son's room, he and his son had gone to sleep on the evening of September 4 in Mr. Davis's daughter's bedroom. Mrs. Davis and her daughter went to sleep in the master bedroom. At approximately 1:50 a. m., Mrs. Davis awoke to find a man leaning over her with his hands on her arm and leg. The only identification of the intruder that Mrs. Davis has been able to give is that he "looked like a man", that he was wearing a dark jacket with two white stripes down the sleeves, and that he was wearing a mask or a stocking over his head. Upon awakening, Mrs. Davis called for her husband and then screamed. The unidentified man struck her in the face and ran from her room. Mr. Davis, awakened by the scream, searched for the intruder, but found no one. The Davises then noticed that the television set, the record player, and some money from Mr. Davis's wallet were all missing. The screen on one of the open windows in the son's bedroom, which was empty that evening, had been removed.
The police arrived and dusted for fingerprints around the open window. They were unable to take any prints from that area, but successfully lifted three prints from a plastic flowerpot which was found in the middle of the living room, although it had been in the corner of the room, next to the television set, when the Davises had gone to bed.
One of the prints was found to match a fingerprint which the police had on file as belonging to Willie Foster, Jr. 1 Accordingly, on October 22, 1971, Foster was arrested. Two of the warrants on which Foster was arrested related to the September 5 incident i. e., first degree burglary from James Harley Davis, and assault with intent to rape Mrs. Davis. However, Foster was also arrested on the basis of seven other warrants which related to seven separate incidents of burglary and housebreaking which had occurred in Charlotte between February and October of that year.
A grand jury returned nine indictments against Foster on January 3, 1972. The following May, Foster was tried on the two indictments relating to the September 5 incident at the Davis home. The jury found Davis guilty of first degree burglary, but acquitted him on the assault with intent to rape charge. On the jury's recommendation, Foster was given a life sentence. Foster's conviction was reversed, however, by the Supreme Court of North Carolina on the ground that certain prejudicial hearsay testimony had been elicited from Foster on cross-examination. State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972).
Foster was retried on February 19, 1973. Mr. and Mrs. Davis each testified to the September 5th events, as related above. In addition, Mrs. Davis testified that she did not know Foster and that, to her knowledge, he had never been in her home. She stated also that the flowerpot from which the fingerprints were lifted was always kept in the living room. The rest of the State's case consisted of the testimony of three police officers and of a fingerprint expert, all relating to the fingerprint on the flowerpot. The original 3 X 5 card on which the print alleged to be Foster's had first been placed had been lost prior to the trial, and thus a photographic enlargement of the print was introduced. 2 The fingerprint expert testified that the enlarged print matched a print taken from Foster after his arrest. 3
The defense offered no explanation of the fingerprint on the flowerpot. However Foster testified that he had never been in the Davis home and that he had never owned a mask or a dark jacket with white stripes. Foster, a 34-year old black, with no prior criminal record, testified that he had lived in Charlotte for 25 years, that he worked for the Triple A Heating and Cooling Company and the Quail Hollow Country Club, and that he also did yard work for various people in Charlotte. Mrs. Henry Wilson testified that Foster had done yard work and heavy indoor work for her for two or three years. She stated that his reputation in the community was excellent and that he was considered an honest and conscientious worker. Foster's wife testified that her husband was at home in bed with her during the hours in which the Davis home was allegedly burglarized. She testified further that she had never seen a mask or a dark jacket with white stripes at the house, that she and her husband had never owned a television set, and that her husband did not bring one home on September 5, 1971.
We come now to the portion of the trial which is directly at issue on this appeal. During his cross-examination of Foster, the prosecutor asked Foster whether he had committed six prior acts of breaking into people's homes. The prosecutor described each act in some detail, and Foster denied involvement in any of them:
Q. At 2416 Rozzelles Ferry Road here in the City?
MR. HICKS: Objection.
A. No, I sure didn't.
MR. HICKS: I object to a question like this.
Q. Did you touch anything around the screen window there?
A. I wasn't there.
Q. I will ask you if you didn't break in the residence of James Sinclair at 312 Center Street on October 11, 1971, by going into the front door and reaching up and unscrewing with your fingers a lightbulb in the ceiling?
Q. Did you or did you not?
A. What you mean 'did I'? No, I didn't.
Q. I will ask you if you didn't break into the residence of Lonnie Bell Wallace at 217 South Turner Street? How far is South Turner Street from there on Center Street?
MR. HICKS: Objection.
A. I couldn't tell you.
Q. I will ask you if you didn't break into Lonnie Bell Wallace's house on February 20, 1971, between 6:30 and 11:00 o'clock and by breaking out the center glass window in the front door?
DEFENDANT'S EXCEPTION NO. 25
A. Sure didn't.
Q. I will ask you if you did not break into the residence of Teretha Phillips at 2224 Roslyn Avenue on the 23rd of May, 1971, by prying open her kitchen window and breaking out the window pane?
DEFENDANT'S EXCEPTION NO. 26
A. Sure didn't.
Q. I will ask you if on the 17th of September, 1971, you didn't break into the home of Shirley Torrence at 514 Honeywood, Apartment No. 3, by taking the screen off the window and breaking out the front window?
DEFENDANT'S EXCEPTION NO. 27
A. Sure didn't.
Q. And I will ask you if you on the 25th day of July 1971 you didn't break into the residence of Roy Lee Armstrong at 201 South Turner Avenue?
DEFENDANT'S EXCEPTION NO. 28
A. Sure didn't.
Q. Do you know where South Turner Avenue is?
A. Sure don't." State Record Summary at 74-77.
The six acts described by the prosecutor were the acts Foster was charged with committing in six of the indictments which had been returned against him on January 3, 1972. At the time of Foster's cross-examination, one of these six indictments had already been dismissed. The remaining indictments against Foster were all dismissed for insufficient evidence not long thereafter.
The jury found Foster guilty, and he was again sentenced to life imprisonment. The Supreme Court of North Carolina affirmed the conviction, with two justices dissenting on the prior acts issue. State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973).
On August 19, 1975, Foster filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of North Carolina. A further petition was later filed by Foster's court-appointed counsel. In an order dated November 8, 1976, Judge McMillan recognized that "(o)rdinarily federal habeas corpus does not lie to correct error in cross-examination," but asserted that in this instance: "To allow the prosecutor to ask questions about other alleged crimes, completely unsupported by fact or evidence, in the detail which was allowed here, makes a shambles of fair trial and deprives the defendant of due process of law". Judge McMillan...
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§ 22.09 Untruthful Character—Prior Acts: FRE 608(b)
...at issue, whether they were recent or remote in time, and whether the evidence is cumulative of other evidence.").[148] Watkins v. Foster, 570 F.2d 501 (4th Cir. 1978).[149] See United States v. Abel, 469 U.S. 45, 55 (1984); State v. Leuin, 462 N.E. 2d 552, 555 (Ohio 1984) ("If the answers ......
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§ 22.09 UNTRUTHFUL CHARACTER — PRIOR ACTS: FRE 608(B)
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