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Dunbar v. Harris

decided: December 21, 1979.

JOSEPH DUNBAR, PETITIONER-APPELLANT,
v.
DAVID R. HARRIS, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT-APPELLEE .



Petitioner sought a writ of habeas corpus on the ground that the state trial court infringed his sixth amendment right to confront a witness against him. He appeals the denial of his petition by Whitman Knapp, Judge, United States District Court for the Southern District of New York. Affirmed.

Before Meskill, Circuit Judge and Kelleher and Coffrin, District Judges.*fn*

Author: Coffrin

This is an appeal from the denial of a petition for habeas corpus. Appellant was convicted after a jury trial in Nassau County Court of three counts of criminal sale of a controlled substance and six counts of possession of the same. The charges arose from three sales of cocaine to an undercover policeman.

The appellate division reversed the possession convictions and affirmed the sale convictions. Leave to appeal the sale convictions to the court of appeals was denied.

Appellant thereafter filed a petition for habeas corpus in the District Court for the Southern District of New York. In an unreported opinion, Judge Knapp denied the petition but subsequently granted a certificate of probable cause for appeal from that denial.

In the district court, appellant claimed, among other things not in issue here, that his right to cross-examine a prosecution witness was unconstitutionally limited when the witness refused on fifth amendment grounds to answer several of defense counsel's questions. The trial court denied appellant's motion to strike the direct testimony of the witness. On petition for habeas corpus, the district court ruled that appellant's sixth amendment rights were not infringed when the witness invoked his fifth amendment privilege on cross-examination and the trial court allowed his direct testimony to stand. That ruling of the district court is the only assignment of error on this appeal.

For the reasons stated below, we affirm the decision of the district court.

At appellant's trial, the prosecution offered the testimony of an informer named Burks, who had agreed to cooperate with the government in return for a recommendation of probation on an unrelated pending drug charge. The substance of his direct testimony was that he introduced an undercover policeman, Detective Mazyck, to appellant and observed the first of the three sale transactions for which appellant was convicted; he did not participate in the two subsequent transactions between Mazyck and appellant. Burks was the only witness to corroborate Mazyck's in-court identification of appellant. He admitted on direct examination that he was, at the time of trial, under indictment for selling heroin, that his activity as an informer was in return for a recommendation of leniency on that charge and that he had served a total of three years and four months for convictions of assault, robbery and attempted rape.

On cross-examination, Burks claimed his privilege against self-incrimination in response to seven of defense counsel's questions.*fn1

When the examination of Burks was concluded, appellant's counsel moved to strike all of his testimony on the ground that Burks claimed his fifth amendment right on an issue directly related to the case.*fn2 The trial court denied the motion. On this appeal, appellant claims that the questions Burks refused to answer went to the central issue of identification of appellant as the seller of the cocaine; appellee contends that the questions were collateral and that, therefore, Burks's refusal to answer did not infringe appellant's sixth amendment rights.

There is no dispute as to the law to be applied in this case. The confrontation clause of the sixth amendment guarantees a criminal defendant the right to cross-examine witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). If a defendant's cross-examination is restricted by the competing fifth amendment right of a witness, it may be necessary to strike the direct testimony of that witness. See, e. g., United States v. Frank, 520 F.2d 1287, 1292 (2d Cir. 1975), Cert. denied, 423 U.S. 1087, 96 S. Ct. 878, 47 L. Ed. 2d 97 (1976); United States v. Newman, 490 F.2d 139, 146 (3d Cir. 1974). This court set forth the test for deciding whether a trial court must strike the direct testimony in such circumstances in United States v. Cardillo, 316 F.2d 606 (2d Cir.), Cert. denied, 375 U.S. 822, 84 S. Ct. 60, 11 L. Ed. 2d 55 (1963):

Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness's testimony may be used against him. On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness's testimony should be stricken in whole or in part.

Id. at 611 (citations omitted).

This test has continued to meet with approval in subsequent decisions in this circuit, United States v. DiGiovanni, 544 F.2d 642, 645 (2d Cir. 1976); United States v. Frank, 520 F.2d 1287, 1292 (2d Cir. 1975), Cert. denied, 423 U.S. 1087, 96 S. Ct. 878, 47 L. Ed. 2d 97 (1976); United States v. Dono, 428 F.2d 204, 209 (2d Cir.), Cert. denied, 400 U.S. 829, 91 S. Ct. 57, 27 L. Ed. 2d 59 (1970); and elsewhere, United States v. LaRiche, 549 F.2d 1088 (6th Cir.), Cert. denied, 430 U.S. 987, 97 S. Ct. 1687, 52 L. Ed. 2d 383, 434 U.S. 966, 98 S. Ct. 506, 54 L. Ed. 2d 452 (1977); United States v. Newman, 490 F.2d 139 (3d Cir. 1974); Wisconsin v. Gagnon, 497 F.2d 1126 (7th Cir. 1974); United States v. Ginn, 455 F.2d 980 (5th Cir. 1972) (per curiam); United States v. Norman, 402 F.2d 73 (9th Cir. 1968), Cert. denied, 397 U.S. 938, 90 S. Ct. 949, 25 L. Ed. 2d 119 (1970); United ...


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