United States of America Ex Rel. Ronald Doss v. Lou v. Brewer, Warden

CUDAHY, Circuit Judge,

concurring.

Although I think the denial of the petition may be affirmed on the basis of untainted evidence described by the district court as “extremely overwhelming,” I cannot accept the logic whereby the once-suppressed gun evidence has been so conveniently resurrected. With all respect, I must reject the majority’s hard-cases-make-bad-law analysis.

The majority reasons that Doss’ direct testimony implied that he “was claiming to have had no connection with a .32 caliber pistol at any time within the time frame of his [direct] testimony.” Ante at 1014. One can certainly quarrel, however, with the majority’s contention that the “time frame” of the testimony of Doss on direct examination covered a period which can be construed to extend until about 4:00 a. m. on April 4 (when the gun was buried). From all accounts the direct testimony covered a period from approximately 7:00 a. m. on April 3 until “sometime after 12:00” *1015(midnight) on that day, when Doss and his companions arrived in Rockford. R. 834; R. 846; Respondent’s Brief at 6. The majority manages to extend by several critical hours the carefully limited time frame of Doss’ direct testimony by the unconvincing argument that, with the small interruption of a “short sleep” in the cab, Doss’ day did not end before 4:00 a. m. on April 4. Apparently, the majority believes that by remaining awake until 4:00 a. m., Doss opened himself up to cross-examination about events which occurred during his waking hours even though the timing of those events was well beyond the period covered on direct examination. I am unwilling, however, to join in an analysis that makes the scope of a defendant’s Fifth Amendment privilege depend on when he retired for the night.

What the majority does in part is to enlarge artificially the scope of Doss’ direct testimony to include the burying of the gun at 4:00 a. m. and then somehow to read into that direct testimony “the clear implication” that Doss was denying any connection with a .32 caliber pistol during the (now redefined) time frame of his direct testimony. Having done all this, it is easy to conclude that the tainted gun evidence impeached this implicit denial. If Doss had testified, either implicitly or explicitly, that he did not see a .32 caliber pistol at 4:00 a. m., there would be a sound basis for impeachment, but that was not his testimony. As the district court observed, “Petitioner at no point during his direct testimony even implicitly denied that he had even seen the murder weapon or that he had buried the gun.” Memorandum op. at 7. It is only by expanding the time frame of Doss’ direct testimony and then interpreting his testimony as referring to events about which he never purported to testify that the majority is able to locate any direct testimony by Doss that the tainted evidence can be construed to impeach.

I have some difficulty in understanding how this analysis is in any significant way affected by United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) and its approval of the admission of evidence to impeach statements made on cross-examination. The majority suggests that Doss’ manner of disposing of the gun impeached “Doss’ testimony on cross-examination that he had not seen a .32 caliber pistol at any time prior to 4:00 a. m. on April 4.” There are several serious problems with this approach:

1) Doss’ testimony on cross (to the extent it involved denials of contact with a .32 caliber pistol) did little more than restate the discrete denials (of buying ammunition, doing target shooting, etc.) made on direct,
2) Doss made no general denial on cross of seeing a .32 caliber pistol, just as he had made no such general denial on direct,
3) it requires rank speculation to perceive how the manner of disposal of the gun at 4:00 a. m. in fact impeaches any of the discrete denials of contact with a .32 caliber gun or .32 caliber ammunition contained in prior direct or cross-examination, and
4) in any event a 4:00 a. m. event is beyond the scope of the direct examination.

Thus, I agree with the district court that the gun evidence had no impeachment value. I also believe, as I have indicated, that the cross-examination with respect to the burying of the gun at 4:00 a. m. on April 4 was not “reasonably suggested” by Doss’ direct testimony. And Havens is not to the contrary. In Havens, the defendant on direct examination broadly and categorically disavowed any involvement in McLeroth’s taping of drugs to his body. The prosecution’s questions on cross-examination focused on this general denial and inquired into the much more specific question of McLeroth’s use of cotton swatches to accomplish the smuggling. Quite properly, the Supreme Court held that this cross-examination was “reasonably suggested” by and grew out of defendant’s direct testimony. In the instant case on the other hand, the prosecution on cross-examination did not limit itself to the subjects raised on direct examination but instead expanded the scope of the questioning by asking the general question, “Did either you or Mr. Falconer see at any time that night a .32 *1016caliber pistol?” R. 894 (emphasis supplied). What the Supreme Court has said about Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), is entirely in point to the prosecution’s efforts in the instant case:

There, the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, “Did you ever see narcotics before?”

Walder v. United States, 347 U.S. 62, 66, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). Although this is a closer case than Agnello, 1 believe that, as in Agnello, the cross-examination here had “too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence.” Havens, 446 U.S. at 625, 100 S.Ct. at 1915.

I conclude, however, a§ did the district court, that the error here, although significant, may be deemed harmless. There was other compelling untainted evidence of Doss’ guilt. - •