Glenn Edward Hoover, 131-295 v. State of Maryland

K.K. HALL, Circuit Judge,

dissenting:

I cannot agree with the majority’s conclusion that Hoover’s constitutional right of confrontation was abridged. In my view, the issue of Greer’s bias was fairly put to the jury in this case. Therefore, the limitations placed by the trial judge on defense counsel in cross-examining Greer were within the acceptable range of the court’s discretion and do not rise to the level of constitutional error. For this reason, I dissent.

The murder victim, Howard Clyde Bull, was a 58-year old dirt farmer, who lived with his 63-year old sister, Evelyn Bull, on a farm in Baltimore County. According to the evidence adduced at Hoover’s trial, on the evening of June 20, 1973, Hoover, Greer, Martin, and Widener met at Hoover’s house to “go on a job.” After Widener announced that there was going to be “a stickup,” the four men put stockings over their heads and arrived at Bull’s farmhouse around 11:00 p.m. Greer remained outside as a lookout. The other three, including Hoover, entered the house, after kicking down the kitchen door. They confronted Mr. Bull and demanded money. When Mr. Bull cried out, “Oh for God’s sake, I got nothing, I don’t make nothing,” Martin took the shotgun he was carrying and, according to the victim’s sister, “just shot his brains right out and run out.”

As the majority opinion correctly notes, the testimony of Greer, who had been granted immunity from prosecution in this case and other matters was a key factor in securing Hoover’s conviction. In the case relied on by the majority, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that a trial court’s restrictions on the cross-examination of a key prosecution witness violated the defendant’s Sixth Amendment rights, where those restrictions precluded defendant’s counsel from making a record from which he could argue why the witness might have been biased. However, in so holding, the Court noted:

On these facts it seems clear to us that ... defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Id. at 318, 94 S.Ct. at 1111 (emphasis added).

As Justice Stewart pointed out in his concurring opinion in Davis, “[s]uch cross-examination was necessary in this case in order ‘to show the existence of possible bias and prejudiceand the right to such cross-examination would not necessarily be conferred in every case. Id. at 321, 94 S.Ct. at 1112.

The case before us is simply not comparable to the Davis situation. In this ease, the jury had abundant evidence of Greer’s possible bias and motive for testifying against Hoover. First and foremost, the jurors knew that Greer was immunized from the charge of first-degree murder for which Hoover was being tried. Secondly, the written letter containing the immunity agreement was itself admitted into evidence. This document alerted the jury to the fact that Greer was being granted immunity for other crimes in Maryland and that the state would intercede on Greer’s behalf for criminal activity in Pennsylvania. In addition, on cross-examination by Hoover’s attorney, Greer testified that he was not “promised anything in the grant of immunity other than what is set forth in that letter,” and acknowledged that he had been told he might be eligible for part of a monetary reward. Both the prosecutor and *308defense counsel referred to Greer’s grant of immunity in their opening statements to the jury.1 And finally, the trial judge in his instructions to the jury explicitly pointed out that because of the immunity grant Greer’s testimony was suspect.

The only question in this case is whether the trial court cut off cross-examination too quickly, a matter in which the judge has wide discretion. Where the jury, as here, has been exposed to sufficient facts concerning the bias of a witness testifying under a grant of immunity, the tiral court does not not abuse its discretion in preventing further inquiry into the details of the immunity agreement. See United States v. Summers, 598 F.2d 450, 459-463 (5th Cir. 1979); United States v. Elliott, 571 F.2d 880, 908-09 (5th Cir.1978). Certainly, there was sufficient cross-examination in this case to satisfy the Sixth Amendment. Thus, the trial court’s refusal to permit Hoover’s attorney to delve into the details of Greer’s immunity agreement with the state and to probe the precise number and nature of the charges possibly pending against him was entirely proper. Because I perceive no constitutional error and can find no abuse of the trial court’s discretion, I would, accordingly, reverse the district court’s judgment, which set aside Hoover’s conviction.

. Specifically, Hoover’s counsel argued:

Incidentally, I might add that Greer for whom I have utter contempt is a man with an extensive criminal record. I’m not going to go into that now, but I want you as the case progresses, this will be brought out and naturally I needn’t tell you common sense tells you that a man with a criminal record who has a lot to gain and very little to lose is a man whose testimony is suspect.... Don’t forget he was one of the four that were charged with participating in the murder of this poor farmer. Don’t forget another thing ... this man is facing God knows how many years, fifty, sixty years or seventy years ... On top of that he’s eligible for a part of a reward which was offered and properly offered by the citizens of Baltimore County. Incidentally, this man has preyed on the citizens of Baltimore County for a long time.... I’m appalled at the fact that the State of Maryland has got to base a case on the testimony of such trash as Mr. Greer....
This man is such a vicious unprincipled crook — I don’t know if crook is enough, if crook is sufficient to describe this man — but let’s say he is a person of unconcerned morality. Of unconcerned morality is the best way I can describe him. This is the man that’s going to testify for the State ... this case is going to boil down to one thing— credibility. Can you believe this shall I say this human being who has so much to gain and nothing to lose? ...