Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Roy Smith, Defendant-appellant.united States of America, Plaintiff-appellee, v. Slade Miller, Defendant-appellant, 919 F.2d 734 (4th Cir. 1991)

Roy Smith and Slade Miller appeal their respective convictions, following a joint trial, of conspiracy to commit murder and second degree murder arising from Miller's killing of Joseph Speight, their fellow inmate at Lorton Reformatory. Smith claims constitutional error in the limitation of his cross-examination of a government witness and insufficiency of the evidence to convict him of conspiracy. Miller claims ineffective assistance of counsel and error in the district court's refusal to conduct a hearing on that claim. We find no reversible error and affirm the convictions.

* Assessed in the light most favorable to the government, see United States v. Steed, 646 F.2d 136, 139 (4th Cir. 1981), the evidence at trial indicated the following sequence of events. Smith and the victim, Joseph Speight, had a fight one afternoon. After guards broke up the fight, Smith and Miller returned to their prison dormitory. Once there, they discussed attacking Speight. Then Miller, in Smith's presence, took a shank (a prison-made knife) from Smith's locker. Smith and Miller then went to the victim's cell in a nearby dorm. A fight soon broke out between Smith and the victim. Corrections Officer Simpson tried to restrain Speight, but he broke free. After Speight broke free, Smith grabbed and held Officer Simpson against the wall. Miller then approached Speight and stabbed him in the chest with the shank while Smith held Officer Simpson. Speight died five days later of the stab wounds.

Smith and Miller were each indicted for first degree murder and conspiracy to commit murder, in violation of 18 U.S.C. §§ 1111 and 1117.

Before their joint trial, the government moved to prohibit defense counsel from eliciting any testimony about the penalty for the first degree murder charge (mandatory life imprisonment) during cross-examination of a government witness, Cornell Warren, who was also charged with first degree murder and conspiracy in connection with the killing, but had agreed to be a government witness in exchange for a guilty plea on the conspiracy charge only. The district court did not grant the government's motion, but instead told defense counsel that though counsel could ask Warren questions about the negotiations with the government, counsel should not reveal that Warren had faced a mandatory life sentence for murder. The asserted reason for the court's concern was that this information could sway the jury in considering the guilt of Smith and Miller, who were also charged with first degree murder. During defense counsel's cross-examination of Warren, counsel attempted to show bias by asking questions about the plea bargain agreement. The government objected, and the court quickly cut off counsel and took over questioning the witness. After the court received contradictory statements from the witness about his understanding of the benefits of the plea bargain agreement, the court ordered counsel to "move on."

This appeal followed the jury's conviction of both defendants for the lesser included offense of murder in the second degree, and conspiracy to commit murder.

Smith assigns constitutional error to the trial court's limiting the cross-examination of Warren. He also challenges the sufficiency of the evidence to convict him of conspiracy. Miller assigns error to the trial court's denial of his pro se motion for new trial for ineffective assistance of counsel and denial of a hearing on the motion. We consider these issues in turn.

II

Smith contends that the limitation of his cross-examination concerning Warren's plea bargain agreement unconstitutionally denied him the ability to show bias or self-interest of the witness.¹ 

Warren obviously was a helpful witness for the government. He was the only originally-charged co-conspirator to testify, provided an eyewitness account of the events (as did others), and helped establish the link between Smith and Miller. Moreover, Warren was the only witness to testify that Smith also had a shank in his hand when Smith and Miller attacked the victim. Finally, the government used Warren to introduce statements by another co-conspirator (who did not testify) that Smith had obtained shanks in preparation for visiting the victim's dorm.

Cross-examination of Warren, including efforts to impeach him by showing self-interest or bias, was obviously important to Smith's defense. When counsel first broached the subject of his possible incentives for testifying as a government witness, the court, following up on its pre-trial ruling, cut counsel off and took over the questioning. First, the court asked Warren whether his lawyer had told him that by pleading guilty he would probably get less time than if he were tried and convicted. Warren answered "Yes." The court then asked whether in pleading guilty he thought he would get less time than if he were tried and convicted. To this Warren answered that he pled guilty because "I knew I was wrong." The court then pursued the matter, and the following colloquy occurred.

THE COURT: [Y]our lawyer did tell you before you pled guilty-- ... [t]hat you would probably get less time if you pled guilty than if you were tried and convicted, is that a fair statement?

WITNESS: Well, he said that if I pled guilty, I could be given up to the same amount of time if I had gone to trial. That is what he said.

THE COURT: All right. Counsel, that pretty well burns it out. Move onto something else.

[DEFENSE COUNSEL]: Your Honor, may we approach the bench?

THE COURT: Counsel, I have ruled on it and your objection to my ruling is in the record. That is all you are entitled to.

[DEFENSE COUNSEL]: That's all the questions.

J.A. at 170-71. This exchange took place after defense counsel had explored Warren's substantive testimony and constituted the whole of counsel's effort to impeach by showing self-interest.

Smith contends that the court's restriction of his ability to cross-examine Warren to show self-interest denied him the rights secured by the confrontation clause. He argues that especially where plea-bargained testimony is being used, a defendant has an affirmative right to probe the witness's understanding of the agreement, so as to highlight for the fact-finder evidence of self-interest, and substantial denial or infringement of that right constitutes constitutional error.

We believe that the record compels us to assume that constitutional error occurred here.

Basic to the right of confrontation is the right to cross-examine a hostile witness to undermine his credibility by showing bias or self-interest. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Cross-examination for this purpose should be limited only for the most compelling reasons, such as to prevent harassment, unduly repetitive questioning, or threats to the witness's safety. Davis v. Alaska, 415 U.S. 308, 316 (1974); Chavis v. North Carolina, 637 F.2d 213, 226 (4th Cir. 1980). As we have held, "When such factors are not present, substantial limitations on the attempts of a defendant to undermine as biased a witness' testimony constitute constitutional error." Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir. 1983).

Even in those areas where some limitations are permissible, a court may err by cutting off cross-examination before " 'the constitutionally required threshold level of inquiry has been afforded the defendant.' " Id. (quoting United States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982)); United States v. Caudle, 606 F.2d 451, 458-59 (4th Cir. 1979) (error to restrict until the right to probe and question has been "substantially and thoroughly exercised"). Here, in addition to effectively taking over the whole of defense counsel's efforts to impeach at trial, the court had cut off any inquiry into the exact nature of the most extreme punishment with which the witness was threatened and possibly had avoided by his guilty plea.

There is no assertion by the government here, nor could there be, that any of the above factors warranting limitations on cross-examination, including that imposed pre-trial, are present. Instead, the government contends that the court's restriction on cross-examination, both in its blanket pre-trial prohibition and in its take-over at trial, did not constitute constitutional error. And in a fall-back position, it suggests that any error was harmless beyond a reasonable doubt. We take these in turn.

* We first consider the blanket prohibition against any inquiry into the exact punishment to which Warren was exposed on the first degree murder charge. The court's asserted basis for imposing this flat restriction was that because punishment is not a relevant consideration for a jury's deliberation on the guilt of a defendant, it should not be permitted to come in by the indirect means of revealing the punishment faced by a comparably charged government witness. We are not persuaded by this.

Laying aside the attenuation of the principle's application where, as here, the punishment being brought out is that faced by another than the defendant on trial, we think there is a more basic reason for rejecting the government's argument.

It lies in the fact that in many contexts evidence not admissible for substantive purposes may nevertheless be admissible, as a matter of overriding necessity (with appropriate cautionary instructions), for impeachment or other collateral purposes. This may be so even when those purposes are not constitutionally grounded. See, e.g., Fed.R.Evid. 408 (offers of compromise). And the admission of such evidence for collateral purposes is even more plainly a necessity where the purpose, here impeachment, is constitutionally protected. Davis, 415 U.S. at 315-18 (constitutional error to restrict impeachment by cross-examination on basis of valid state rule limiting evidence of juvenile adjudication).

Here, a vital link in showing Warren's self-interest was the exact punishment that he avoided as risk (mandatory life sentence if convicted of first degree murder) by pleading guilty to conspiracy as part of his plea agreement. The effect of the restriction was completely to exclude this from the jury's consideration, a result we conclude was not warranted by either of the considerations advanced by the government.

The court's effective preemption of counsel's attempted cross-examination at trial also raises serious constitutional questions. The basic question as to this is whether counsel's effort to impeach by cross-examination was essentially cut off before "the constitutionally required threshold level of inquiry had been afforded." Hoover, 714 F.2d at 305. There is no question that it was effectively cut off before any real inquiry had been made. The government does not contend otherwise, but only that the court's examination of the witness was essentially as effective for the purposes now asserted as could have been defense counsel's. Specifically the government points to the fact that the court elicited at one point the most favorable possible concession by the witness: that he had indeed been told by his counsel, and believed, that he "probably" would receive a lower sentence by pleading guilty than by going to trial. The defendant's response is that the witness' later response, facially contradictory, was that he was told in effect that it might make no difference, that he "could" get as much one way as the other. When the court refused to pursue the inquiry past this point, or to allow defendant's counsel to do so, the contention is that this did not afford the minimal threshold opportunity for inquiry constitutionally mandated.

We think it a close question whether the right was substantially infringed by the court's action. It is true that the court's questioning developed the ultimate fact that there was some degree of self-interest behind the witness' testimony. The defendant's argument is essentially that the full extent of that interest was not developed, and that his constitutional entitlement was to develop the full measure of that interest.

We are satisfied that in combination the court's blanket pre-trial restriction, followed by its complete preemption of already restricted cross-examination on trial, constituted too serious a threat to the constitutional right at stake to be approved. For purposes of this appeal, we therefore assume that constitutional error was committed and that it requires reversal unless the error can be found harmless.

B

As to this possibility, the question is whether the error, being of constitutional dimension, can be declared by us to be harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684 (constitutionally improper denial of a defendant's opportunity to impeach a witness for bias subject to Chapman v. California harmless-error analysis). As put more specifically by the Van Arsdall Court, "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. The Court identified the following factors that should be considered: importance of the witness's testimony to the prosecution's case; whether the testimony was cumulative; presence or absence of evidence corroborating or contradicting the material testimony of the witness; the extent of cross-examination permitted; and, of course, the overall strength of the prosecution's case. Id.

Essentially discounting Warren's testimony except as it is corroborated by other evidence, and considering all that remains in the light most favorable to the government, the evidence was sufficient to support findings beyond a reasonable doubt as follows. After having a fight with the victim in the gym, Smith and Miller returned to their dorm where Smith told Miller "we are going to get [the victim]", J.A. at 58, to which Miller responded "Yes, sucker. Man, we can go get him now." Id. Miller also said to Smith, "You should go do the nigger", J.A. at 124, which was generally understood within the lexicon of the prison community as a statement of intention to kill. J.A. at 126.

As Smith and Miller prepared to leave for the victim's prison dorm, Miller, in Smith's presence, procured shanks, or prison-made knives ("It looked to be like an ice pick.", J.A. at 125), from Smith's locker. J.A. at 136. Smith and Miller then left their dorm together headed to the victim's dorm. J.A. at 59. Once in the victim's dorm, Smith and Miller started a fight with the victim. J.A. at 61-62. After this fight was broken up by the guard, another fight broke out between Smith and the victim. The guard then tried to separate the two inmates. J.A. at 193-95. At this point Smith grabbed and held the only prison guard in the room while Miller stabbed the victim. J.A. at 196-97.

This evidence, obviously sufficient to convict if believed, was only disputed by Smith's assertion that he purposefully held Officer Simpson only to protect him from harm.

From this, we are able to say with confidence that Warren's testimony to the effect that Smith planned with Miller to kill Speight, though undoubtedly helpful to the prosecution because he was a charged co-conspirator, was to a large extent either cumulative or generally corroborated by other testimony.²  It also demonstrates the great overall strength of the government's case independently of Warren's testimony. Particularly when we weigh the guard's conflicting account against Smith's facially implausible testimony that he held the guard only to protect him, we are confident that the evidence, with Warren's testimony fully discounted, was overwhelming that Smith was involved in the planning and execution of the murder. And this permits us to conclude that any error in restricting the impeachment of Warren as a witness was harmless beyond a reasonable doubt.

This case is far different from Hoover v. Maryland, in which we found that "if the jury doubted [the witness's] story there would have been little else on which to base a guilty verdict." 714 F.2d at 306.

III

Smith also challenges the sufficiency of the evidence to sustain his conviction for conspiracy to murder. He contends that the evidence only points to a conspiracy to fight the victim, not to kill him, and that Miller's stabbing of the victim was a spontaneous act.

In order to convict Smith of conspiracy to murder, the government had to prove that Smith intended to kill the victim or knew that Miller intended to kill the victim and that the objective of his actions was the murder of Speight. As the district judge correctly charged the jury, a tacit mutual understanding to kill the victim by a common design is enough.

We need not again summarize the critical evidence of Smith's relationship and conduct with Miller leading up to the murder at Miller's hand. In its most favorable light it supports a finding of a tacit mutual understanding between the two to kill the victim. It also suffices to support a finding of at least two overt acts in furtherance of the conspiracy. We hold that this evidence suffices to sustain a conviction of conspiracy to murder.

IV

Miller seeks to raise on appeal a claim of ineffective assistance of counsel--specifically that his counsel failed without adequate reason to challenge a report of the medical examiner and instead stipulated that the contents of the report could be received as the medical examiner's testimony.

The government points out correctly that such a claim may not be raised on direct appeal, but only by a motion under 28 U.S.C. § 2255, because it is not one that can be decided on the trial record. See United States v. Lurz, 666 F.2d 69, 78 (4th Cir. 1981). We reject defendant's contention that he was entitled to an evidentiary hearing to develop the issue on his post-verdict motion for new trial.

AFFIRMED.