United States of America, Plaintiff-appellee, v. Kerry Edelin, Defendant-appellant,united States of America, Plaintiff-appellee, v. Eric Hebron, Defendant-appellant, 892 F.2d 1042 (4th Cir. 1989)

The question presented is whether the district court abused its discretion when it denied appellants' motion to recall the government's primary witness for impeachment purposes. We find no abuse of discretion and, accordingly, affirm the judgment of the district court.

Appellants are prisoners housed at the Maximum Security Facility at Lorton Reformatory. On June 22, 1988, a grand jury indicted them for assault with intent to murder and possession of a "shank" capable of causing serious bodily injury in connection with an attack on a fellow prisoner, David Johnson. Following a trial before United States District Judge Claude M. Hilton, a jury convicted appellant Kerry Edelin of the lesser-included offense of assault with a deadly weapon and of possession of the shank. It found appellant Eric Hebron guilty of the lesser-included offense of assault resulting in serious bodily injury. Both men appeal their convictions solely on the ground that the district court erred when it denied their motion to recall Johnson for impeachment purposes.

In the normal course of discovery, appellants' counsel reviewed the District of Columbia Department of Corrections ("DCDC") file on David Johnson on the Tuesday of the week before trial. See Joint Appendix ("J.A.") at 109. The file contained a number of references to drug use, see id. at 108, and counsel prepared to cross-examine Johnson on prior drug use. See Brief of Appellants at 4. During cross-examination, however, Johnson denied any use of PCP:

[Counsel for Appellant Edelin:] Mr. Johnson, had you ever had any involvement with drugs, specifically PCP?

A: No.

Q: Wacky weed, angel dust? Ever used anything like that?

A: No, not like that, no.

...

Q: Did you report a PCP flashback on December 30th, 1985, while in prison?

...

A: No, man.

Q: How about on November 22nd, 1987?

...

A: No, I ain't never had it.

J.A. at 44-45. Although appellants' counsel had already reviewed the DCDC file on Johnson, they did not attempt to impeach this testimony by introducing reports in the file containing admissions by Johnson of PCP use.

After the government rested its case, appellants moved to recall Johnson to impeach him on the basis of the DCDC file.¹  When asked by the court why he did not use the documents in his initial cross-examination, counsel for appellant Edelin explained, "We anticipated that he would admit to his own criminal history and to his own history within Lorton. I didn't have the documents in my hand to cross examine right then on that point." Id. at 110. The court suggested that counsel should have briefly interrupted his cross-examination and asked counsel for the government for a copy of the DCDC file. See id. at 113. The court denied appellants' motion to recall Johnson, but granted in part appellants' alternative motion to allow introduction of the DCDC file. The court admitted two documents from the DCDC file containing admissions by Johnson of PCP use and allowed appellants' counsel to refer to those documents during closing arguments. See id. at 116.

Trial courts are traditionally afforded broad discretion in determining whether a witness should be recalled for purposes of impeachment. See United States v. Blackwood, 456 F.2d 526, 529 (2d Cir.), cert. denied, 409 U.S. 863 (1972). The Supreme Court has recognized the important role the trial judge plays in the criminal justice system:

" [T]he 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." A criminal trial does not unfold like a play with actors following a script; there is no scenario and can be none. The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce proof; his determination will be reviewed only for abuse of discretion. Within limits, the judge may control the scope of rebuttal testimony, may refuse to allow cumulative, repetitive, or irrelevant testimony, and may control the scope of examination of witnesses. If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.

Geders v. United States, 425 U.S. 80, 86-87 (1976) (citations omitted) (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). Our deference to the trial court's discretion is particularly broad when the party challenging the court's refusal to allow a witness to be recalled fails to provide any valid reason for his failure to use during the initial cross-examination the material then available to him. See Blackwood, 456 F.2d at 529-530.

Furthermore, "we should not overrule the exercise of that discretion unless we are convinced that the ruling of the court was prejudicial." Foster v. United States, 282 F.2d 222, 224 (10th Cir. 1960). The court avoided any possible prejudice to appellants by allowing them to introduce the two admissions of PCP use and permitting counsel to use those admissions in closing arguments.

The district court did not abuse its discretion when it denied appellants' motion to recall Johnson for impeachment purposes. Accordingly, the judgment of the district court is

AFFIRMED.