United States v. Birdie Louise Joshua Harris, United States of America v. Billy Charles Harris

*14 KILKENNY, Circuit Judge

(Concurring and dissenting):

The majority found no error as to appellants’ first three contentions and I concur in this result. However, as to the last two contentions, I cannot agree with the majority’s conclusions and accordingly dissent.

*15 DENIAL OF RIGHT TO CROSS-EXAMINATION

No principle of law is more firmly settled in this circuit than that which recognizes that the scope and extent of cross-examination generally lies within the sound discretion of the trial court. United States v. Coulter, 474 F.2d 1004 (CA9 1973), cert. denied 414 U.S. 833 , 94 S.Ct. 172 , 38 L.Ed.2d 68 (1973); United States v. Haili, 443 F.2d 1295 (CA9 1971); Viramontes-Medina v. United States, 411 F.2d 981 (CA9 1969); Harris v. United States, 371 F.2d 365 (CA9 1967). Only where the record firmly shows that the trial court committed an abuse of discretion will a reversal be required. Harris, supra.

There is no question that inquiry into motive and bias are permissible avenues of cross-examination. In the instant case, defense counsel was permitted to cross-examine the informant on the financial remuneration he received for testifying as an informant for the Government, 1 the number of times for which he had testified in this capacity before, 2 and whether he had any cases pending at the time of his appearance for the government in the instant case. 3 There is little question that cross-examination on these subjects was directed to *16 the elicitation of the informant’s motive and possible bias for testifying. Absent a complete denial of this form of inquiry, reversal is not appropriate. Harris, supra, at 367 .

On cross-examination of the informant, defense counsel attempted to elicit the informant’s place of residence. The trial court sustained an objection to this inquiry, and the majority holds this to be error.

In Alford v. United States, 282 U.S. 687 (1931), as reaffirmed in Smith v. Illinois, 390 U.S. 129 , 88 S.Ct. 748 (1968), the Supreme Court held that an inquiry into the residence of a witness is a proper subject of cross-examination, indeed, a fundamental component of cross-examination. As with all general rules of law, however, there are exceptions. One exception recognizes that where such disclosure would “tend merely to harass, annoy, or humiliate a witness”, then such inquiry goes beyond the proper scope of cross-examination. Smith, supra, at 133-134 , 88 S.Ct. at 751 (White, J. concurring). Here, the questions might well have been directed to the harassment or annoyance of the informer. The exhaustiveness of the cross-examination on all other subjects branded the witness as an informer of considerable experience. The disclosure of his address might lead only to harassment and annoyance by the criminal element.

It is critical to note that neither Smith nor Alford per se requires a reversal merely because the district court sustained an objection to a question directed at the elicitation of an informant’s address. United States v. Teller, 412 F.2d 374 (CA7 1969), cert. denied 402 U.S. 949 , 91 S.Ct. 1603 , 29 L.Ed.2d 118 (1971). There, the court held:

“Smith requires reversal only where the lack of a witness’s name and address denies a defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial question is whether the defendant was denied effective cross-examination.” [Emphasis supplied]. 412 F.2d at 380 .

Teller represents the sound approach. The mere denial of a disclosure of a witness’s address will not constitute a violation of the defendant’s Sixth Amendment right to confrontation absent a showing that without such disclosure, the defendant was denied effective cross-examination. The record before us conveys a picture of a thorough cross-examination of the informant — • the cross-examination covering more than seventy-five pages of the transcript. It clearly shows that cross-examination was in no way inhibited by the court’s disallowance of defense counsel’s attempt to reveal the informant’s address. Since there is absolutely nothing in the extended cross-examination which would in any way indicate that the address of the witness might have produced evidence of value to the appellant, the majority’s desperate attempt to reconcile Teller completely misses the mark. Here, I repeat, the record is devoid of any showing on the part of appellant, or otherwise, that the absence of the witness’s address effectively interfered with the cross-examination.

TRIAL COURT’S EXAMINATION OF WITNESSES

The majority assigns as error the trial court’s active participation in questioning several witnesses. In each instance, it concludes that this participation was an aid, whether intentional or otherwise, to the prosecution. I cannot agree.

It is axiomatic that “[i]n a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Quercia v. United States, 289 U.S. 466, 469 , 53 S.Ct. 698, 698 , 77 L.Ed. 1321 (1933). Needless to say, the trial court may participate in the examination of witnesses with a goal toward clarification of the evidence. United *17 States v. Malcolm, 475 F.2d 420, 427 (CA9 1973).

The majority zeros in on what it considers to be numerous examples of erroneous trial court participation. One such instance involves the testimony of appellant, Billy Harris. The prosecution was cross-examining Harris in an attempt to clarify portions of a conversation [contained in a tape recording] to which Harris was a party. During cross-examination, the trial court intervened. This intervention was surely proper, for the trial court only commenced the examination after the appellant admitted that he was confused by counsel’s questions. The trial court’s questioning evinces nothing more than an attempt to elicit facts and clarify obscure testimony. Additionally, at the close of the trial court’s examination, it specifically asked counsel for both sides whether they desired to question the witness further. 4 The fact that defense counsel, at the close of the evidence, moved for a mistrial does not nullify his rejection of the court’s offer to permit further examination. Beyond that, counsel cannot wait until the end of the trial and then challenge the conduct of the judge in an area where the judge has an admitted right of intervention. In my opinion, appellants have failed to show how this examination prejudiced them. The majority’s other examples of purported impermissible participation by the trial court are no more convincing.

Further, at no time after the trial court’s examination of any of the witnesses, did counsel for the defense object to the manner in which the trial court engaged in its examination. As this court stressed in McConney v. United States, 421 F.2d 248 (CA9 1970), cert. denied 400 U.S. 821 , 91 S.Ct. 39 , 27 L.Ed.2d 49 , where the record shows that defense counsel registered no objection to the court’s questions, this is an important indicia in finding no trial court error, especially where the record fails to establish any prejudice to the appellants arising from such examination.

This court, in Marshall v. United States, 409 F.2d 925 (CA9 1969), correctly observed that where an objection is not offered, the alleged error cannot be questioned on appeal unless the very exceptional situation arises whereby review is necessitated to prevent a miscarriage of justice. See United States v. Brooks, 473 F.2d 817 (CA9 1973), and Vitello v. United States, 425 F.2d 416 (CA9 1970), cert. denied 400 U.S. 822 , 91 S.Ct. 43 , 27 L.Ed.2d 50 . While the trial judge may have participated more vigorously than most, the record, as a whole, does not portray an effort, whether by design or otherwise, to interfere with or impede counsel in the presentation of their eases. Active participation by the judge, standing alone, is not sufficient to warrant a reversal absent a showing that appellants were deprived of a fair trial by the participation. Smith v. United States, 305 F.2d 197 (CA9 1962), cert. denied 371 U.S. 890 , 83 S.Ct. 189 , 9 L.Ed.2d 124 . It is there said at page 205:

“ . . . [D]uring the stress of a criminal trial, few, if any judges can altogether avoid words or action, inadvertent or otherwise, which seem inappropriate when later examined in the calm cloisters of the appellate court.”

Be that as it may, in my view, the great majority of the court’s rulings were proper and his interventions in the examination were prompted by the inability, or deliberate failure, of counsel to *18 ask proper questions. [See questions and answers under majority footnote 20].

The majority’s position is not strengthened by drawing attention to colloquies between the trial judge and counsel, and a discussion between the court and counsel on a motion for a continuance, all of which occurred outside the presence of the jury. The majority’s manifest anxiety, in attempting to transform these non-prejudicial occurrences into purported trial court error, is clearly demonstrated by the massive footnotes, over twenty-five percent of which are non-prejudicial discourse. I had always thought that the judge and counsel, when outside the presence of the jury, could, in effect, choose their own weapons. In any event, the majority has failed to enlighten me on how, in these circumstances, the jury’s verdict could be affected by the judge’s conduct.

One prominent author has compared the trial judge to a “traffic cop” — one who is often required to make an “immediate, forceful, and intimidating response” to varied situations and contingencies. 5 This is perhaps a strained analogy, yet this court, in Robinson v. United States, 401 F.2d 248, 252 (CA9 1968), has recognized the often precarious position of the trial judge:

“[T]he trial judge has a wide discretion in his management of the trial. Trial judges are human beings who are unique in their temperaments and intellectual qualities, and it is, of course impossible to man the benches with judges each of whom would fit-into a common mold.”

CONCLUSION

Finding no error which in any way affected the substantial rights of the appellants, Rule 52(a), F.R.Crim.P., I would affirm the judgments of the lower court.

. * * *

“Q. In connection with your working as an informant are you paid?

A. No.

Q. Do you receive any consideration from the Government?

A. Other than expense, nothing.”

“Q. How much did you make for testifying for the Government?

MR. CAMERON: Asked and answered.

THE COURT: Overruled.

TnE WITNESS : I am making nothing.

MR. WYATT : I am sorry.

THE COURT: T am making nothing.’

BY MR. VODNOY:

Q. Did you say something about expenses?

A. Well, whatever the expense is, that is not a profit.

Q. Tell me what your expenses are in relation to this case.

A. Oh, I don’t know. I haven’t submitted them to my accountant yet.”

[R.T., pp. 162,163, 175].

. * * *

* :¡: * s¡;

“Q. How many times have you testified for the Government?

A. I don’t remember.

Q. Tell me approximately.

A. A couple of times.

Q. Well, a couple of times, that means two times.

A. That is right.

Q. This is the third time or the—

A. The second time.

Q. This is the third time?

A. Second.

Q. You have only testified—

A. Once before.

Q. —once before?

A. Yes.

* :¡s * * *

“Q. How many times have you been prepared to testify for the Government before?

A. Several, three or four.

Q. Three or four times.

When was the first time that you were prepared or did testify for the Government?

A. ’69.

Q. 1969?

A. Yes.”

* -!• * * •!■

[R.T., pp. 175, 176, 176a].

. * * *

* * * * *

“Q. When was the next time you stood ready to testify or testified on behalf of the Government?

A. ’70 or ’71.

Q. Did you get paid for that?

A. No, I did not.

Q. When is the—

A. Witness fees.

Q. Witness fees?

A. That’s right.

Q. How much did you get paid in witness fees?

A. The standard $20 a day.

Q. $20?

A. I guess.

Q. Did you have a case pending at that time?

A. No, I did not.

Q. You do have a case pending at this time?

A. No, I do not.”

* $ * * *

[R.T., p. 179].

. * * »

* * * * *

“THE COURT: Anything further, gentlemen?

MR. CAMERON: Nothing further.

THE COURT: Anything further?

MR. WYATT: Nothing further.

MR. YODNOY: No, your Honor.”

* * % * ❖

[R.T., pp. 325, 326].

. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Texas L.Rev. 629 , 678 (1972).