TORRUELLA, Circuit Judge. Petitioner Timothy A. Brown was found guilty of first degree murder after a jury trial held in New Hampshire Superior Court, Hillsborough County. Pursuant to New Hampshire's first degree murder statute,1 he was sentenced to life in prison without parole. The New Hampshire Supreme Court affirmed Brown's conviction and his sentence.2 He then filed a habeas corpus petition3 in New Hampshire's federal district court claiming that his constitutional right to confront adverse witnesses was violated. The district court dismissed Brown's petition and he appealed. We affirm.
Sometime before 3:00 a.m. on January 14, 1987, the tenants of an apartment building located at 7 Mason Street, Nashua, New Hampshire, heard scuffling noises coming from an apartment rented to Neil Watson.4 Theresa Warner, who lived above Watson and had a window facing Mason street, heard the commotion followed by three stomps.
Later that evening, Ms. Warner went to her window and saw two men carrying something from the apartment building and putting it in the trunk of Neil Watson's car.5 Before the men drove away, Ms. Warner heard the sound of kicking or pounding coming from the trunk of Watson's car.
At around 7:00 a.m. on January 14, 1987, the owner of the apartment building, Philip Rowe, was awakened by a phone call from one of his tenants, who had spotted blood in the driveway leading to the building. Mr. Rowe went to the building and saw a pool of blood in the parking space for Neil Watson's car and a trail of blood from the porch of the building to Watson's apartment. He entered Watson's apartment and saw three pools of blood. He then called the police.
While the police searched Watson's apartment, petitioner and Victor Warner appeared to be unusually curious about the investigation. At one point, petitioner volunteered that in his opinion Neil Watson had committed suicide. Petitioner also told the police that he and Warner had visited Watson on the previous evening to help Watson clean up his apartment after a burglary which occurred the day before. Petitioner stated that Watson was highly intoxicated and had received three crank phone calls.
Watson's car was found the following day with traces of blood in the trunk and in the front passenger seat. On January 16, following some highly suspicious statements made by petitioner to the press regarding undisclosed police material (i.e., how much blood was found in Watson's car), the police interviewed him again. Petitioner volunteered that in his opinion Watson was dead and that he had been transported in the trunk of his car and either dumped in a river or buried.
On January 24, 1987, petitioner requested another interview with the police because he was disturbed that they had interviewed his girlfriend. During petitioner's interview, he was told that the police suspected that Warner had killed Watson and that petitioner was involved in the killing. After waiving his Miranda rights, petitioner told the police that he wanted to give them a statement. Petitioner stated that he and Victor Warner had been drinking and taking valium, and had gone to Neil Watson's apartment. Watson and Warner began to fight after Watson grabbed Warner by the testicles. Petitioner intervened, but after Watson pushed him, petitioner grabbed a small wooden table and struck Watson in the head several times. Although Watson fell on his knees and began to bleed profusely, petitioner stated that he continued hitting Watson until he laid on the ground.
Petitioner and Warner then decided to get rid of Watson's body. They put Watson in the trunk of Watson's car and drove away, admittedly hearing Watson's repeated pounding and yelling coming from the trunk. They drove to the Sagamore Point bridge and threw Watson's body into the river. Petitioner indicated that upon looking down at the river, it was apparent that Watson was alive and treading water.6 Petitioner's oral account was typed by a police agent. Petitioner then reviewed and signed it.
Following this statement, both petitioner and Warner were arrested. Petitioner was charged with first degree murder and Warner with hindering apprehension. Warner was showed petitioner's statement and he agreed with it.
On May 21, 1987, Watson's body was recovered from the Merrimack River in Lowell, Massachusetts. An autopsy performed by Massachusetts' chief medical examiner revealed that Watson had suffered eleven lacerations to his head and face, which were consistent with being struck with the barrel and handle of a gun. The chief medical examiner opined that drowning associated with impact injury to the head was the cause of death.7 Warner was thereupon charged with the crime of accomplice to first degree murder.
Before trial, Warner pled guilty to a reduced charge of manslaughter and was sentenced to 15 to 30 years in state prison, the maximum term for that offense. Warner agreed to testify against petitioner and was guaranteed immunity from any further charges.
At trial, Warner testified that he and petitioner were together on the evening of January 13, 1987 and that petitioner took a pellet pistol and suggested that they go see Neil Watson. As Warner conversed with Watson, petitioner struck Watson in the head with the gun until Watson lay flat on the floor. Warner testified that he never fought with Watson.
Warner admitted on direct examination that his plea of guilty had resulted in the dismissal of first and second degree murder charges and a hindering apprehension charge. On cross-examination, Warner was confronted with evidence that he had a criminal record, that he had stolen the murder weapon -- the pellet gun -- from his father and that he had given the police a statement following his arrest that differed substantially from his testimony at trial. When defense counsel attempted to elicit from Warner what penalty he had avoided by pleading guilty to a lesser charge of manslaughter, the prosecution objected. The Judge sustained the objection.
Claudette St. Amant, petitioner's former girlfriend, testified that the day after Watson disappeared, petitioner told her that he had killed Watson.
Petitioner took the stand to assert that Warner had committed the murder. According to petitioner, on the evening of January 14, Warner and Watson engaged in a shoving match after Watson grabbed Warner's testicles. Then, Watson fell on the floor and Warner repeatedly hammered Watson on the head with the pellet gun. Petitioner helped Warner remove Watson's body from the apartment and to throw him in the river, but petitioner stated that he believed Watson was dead from the blows to his head. Petitioner further testified that the statement he gave to the police on January 24, 1987 was not voluntary. Rather, he lied to the police to protect Warner because he was afraid of him.
The confrontation clause of the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The right to cross-examination "is 'the principal means by which the believability of a witness and the truth of his testimony are tested.'" Kentucky v. Stincer, 482 U.S. 730, 736, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987) (citing Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974)); see also Olden v. Kentucky, 488 U.S. 227, 231, 102 L. Ed. 2d 513, 109 S. Ct. 480 (1988) (the confrontation clause of the Sixth Amendment "includes the right to conduct reasonable cross-examination"). The right to cross-examination, however, is not absolute or unlimited.
On the contrary, trial Judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986). See also United States v. Malik, 928 F.2d 17, 19-20 (1st Cir. 1991); United States v. Boylan, 898 F.2d 230, 234 (1st Cir.), cert. denied, 112 L. Ed. 2d 106, 111 S. Ct. 139 (1990); United States v. Rivera-Santiago, 872 F.2d 1073, 1085 (1st Cir.), cert. denied, 492 U.S. 910, 106 L. Ed. 2d 576, 109 S. Ct. 3227 (1989); United States v. Lynn, 856 F.2d 430, 432 (1st Cir. 1988); United States v. Chaudhry , 850 F.2d 851, 856 (1st Cir. 1988); United States v. Frappier, 807 F.2d 257, 261 (1st Cir. 1986), cert. denied, 481 U.S. 1006, 95 L. Ed. 2d 203, 107 S. Ct. 1629 (1987); United States v. Kepreos, 759 F.2d 961, 965 (1st Cir.), cert. denied, 474 U.S. 901, 88 L. Ed. 2d 227, 106 S. Ct. 227 (1985).
Petitioner attacks his conviction on the ground that his Sixth Amendment right to confront and cross-examine adverse witnesses was violated when the jury was not allowed to hear the potential penalty that Victor Warner, the accomplice and main witness for the prosecution, had avoided by entering into a plea agreement. Petitioner's counsel attempted to elicit the penalty Warner had avoided during Warner's cross-examination:
Petitioner's Counsel: - And you agreed to and accepted a sentence of 15 to 30 years in state prison?
Warner: - That's correct.
Petitioner's Counsel: - And you think that that's a good deal under the circumstances?
Warner: - Not really. Long time.
Petitioner's Counsel: - You understand -- you answered [the prosecutor] on direct examination that you understood what you were doing, that you pled to manslaughter?
Warner: - I understand it all.
Petitioner's Counsel: - Received a 15 to 30 year sentence?
Warner: - Yeah.
Petitioner's Counsel: - That's the maximum sentence the law allows for manslaughter?
Warner: - Yes, sir.
Petitioner's Counsel: - And you are telling us you are willing to do that under all the circumstances here, and why are you willing to do that?
Warner: - Why? I don't want to take it to trial.
Petitioner's Counsel: - You don't want to be convicted of first degree murder; do you?
Warner: - Second either.
Petitioner's Counsel: - And you understand the maximum penalty for first degree murder, and second degree murder?
Warner: - I don't know what second is, but I know what first is.
Petitioner's Counsel: - What's the maximum penalty for first degree murder?
The Prosecutor: - Objection
The Court: The objection is sustained.
Tr. Vol. VII, at 137-38. At the ensuing bench conference, petitioner's counsel argued that the true measure of Warner's bias was effectively concealed from the jury. According to the defense, the fact that Warner avoided a potential sentence of life in prison without parole was a crucial piece of information for the jury to evaluate the bias of Warner's testimony. The court, noting that petitioner was himself on trial for first degree murder, ruled that evidence of the penalty for that offense should be excluded pursuant to New Hampshire's rule of not informing the jury of the defendant's possible punishment.8 See State v. Beede, 128 N.H. 713, 715, 519 A.2d 260, 262 (1986).
Whether a trial court has abused its discretion in limiting the cross-examination of a witness for bias depends on
whether the jury had sufficient other information before it, without the excluded evidence, to make a discriminating appraisal of the possible biases and motivations of the witnesses.
United States v. Tracey , 675 F.2d 433, 437, 49 A.F.T.R.2d (P-H) 1392 (1st Cir. 1982). The Sixth Amendment's confrontation clause mandates a "minimum threshold of inquiry" be afforded a defendant in the cross examination of an adverse witness. United States v. Jarabek, 726 F.2d 889, 902 (1st Cir. 1984). The issue here is whether the trial court abused its discretion and committed constitutional error when it prevented the jury from hearing the potential penalty Warner avoided by pleading out of a first degree murder charge.
The jury at petitioner's trial was clearly given sufficient information from which it could conclude that Warner - the accomplice -- had a substantial motivation to testify against petitioner and lie. The specifics of Warner's plea agreement was an issue extensively examined by both sides. Warner acknowledged that he had avoided a potential conviction for first and second degree murder and hindering apprehension by entering into the plea agreement. The trial court instructed the jury that manslaughter is a lesser-included offense of second degree murder and the jury knew that the State of New Hampshire had granted Warner immunity from any further crimes arising from his testimony. Accordingly, the jury could have inferred that by pleading guilty to manslaughter and receiving a sentence of 15 to 30 years, Warner had avoided a significantly harsher penalty than if he had been tried and convicted for first or second degree murder and for hindering apprehension.9 The jury had more than sufficient information to conclude that Warner had a strong incentive to lie in order to receive a lesser sentence.
Additionally, the defense cross-examined Warner on other matters bearing on his credibility; his lengthy criminal record; the fact that he had stolen the murder weapon from his father; the fact that he had given the police a statement that differed substantially from his testimony at trial; and the fact that he had reviewed the prosecution's investigative file before testifying. We have no doubt that the jury in this case was presented with ample evidence "to make a discriminating appraisal of the possible biases and motivations of [Warner]." Frappier, 807 F.2d at 1278. Where a defendant is afforded an opportunity at trial to explore in a substantial manner the inherent bias in the testimony of an accomplice, such as Warner, and the evidence of petitioner's guilt is overwhelming, we will be hard pressed to find that a constitutional error was committed when the trial court prohibited the jury from learning the penalty that the accomplice avoided by pleading guilty to a lesser charge.10
If anything, the withholding of the punishment information in this case is less prejudicial than when the prosecution withholds impeachment evidence in violation of the doctrine of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In United States v. Perkins, 926 F.2d 1271 (1st Cir. 1991), we confronted the issue of whether a conviction should be reversed because the government withheld evidence that the defense considered germane to its cross-examination of an adverse witness. In order to determine whether a Brady violation had occurred in those circumstances, we applied the standard set forth by the Supreme Court in United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985):
[A] constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. . . . [Evidence is material] only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.
Id. at 678, 682. Although Bagley involved a Brady claim, rather than a Sixth Amendment claim, the reasons for applying that standard here -- whether the exclusion of the evidence (the penalty information) undermined confidence in the outcome of the trial -- are perhaps more compelling than in a Brady claim, particularly since it is inherently more suspect for the prosecution to withhold evidence than for the trial court to exclude it after argument by both sides.
Although Warner's testimony in this case was important, the prosecution presented other material evidence to prove beyond a reasonable doubt that petitioner had committed the brutal murder of Neil Watson. Petitioner dictated, reviewed and signed a six page statement confessing that he had beaten Watson in the head and thrown him into the river. Petitioner's girlfriend testified that petitioner had told her that he had killed Watson. Petitioner's testimony was inconsistent with the physical evidence presented at trial, including his assertion that Warner and Watson had fought. Since the evidence of petitioner's guilt was overwhelming, we conclude that the exclusion of the punishment information did not undermine confidence in the outcome of the trial.
After carefully reviewing the record, we find that petitioner's constitutional right to confront adverse witnesses was not violated.
POLLAK, Senior District Judge (Concurring). Although I concur in the opinion and judgment of the court, I do so with little enthusiasm for the result.
Whenever, as is generally the case, the responsibility for determining the appropriate sentence lies with the court rather than with the jury, it is not unreasonable to insulate the jury from all information relating to the sentencing process. But the state's interest in keeping the jury's mind free of the details of the sentencing process is an interest which -- so it seems to me -- ought to be accommodated to interests that cut in the other direction. Such a counter-interest is a defendant's interest in challenging the credibility of a prosecution witness -- himself charged with crime -- who has secured lenient treatment by agreeing to testify against the defendant. If the serious criminal charge which the prosecution witness has secured exemption from is the same charge that has been laid against the defendant, cross-examination of the prosecution witness with respect to his understanding of the benefit he has gained from his bargain will reveal to the jury the sentence that might be imposed on the defendant if he is convicted. In such a case -- especially when the crime is a very serious one and hence the potential sentence is very severe -- the defendant's due process interest would seem to me to take precedence over the state's interest in keeping the jury uninformed about the sentencing process.
The present case poses the problem in acute form. Because Timothy Brown was charged with first-degree murder, he was subject to being sentenced to a life term in prison without parole. The principal prosecution witness, Victor Warner, was Brown's alleged accomplice in the killing of Neil Watson. If prosecuted for, and convicted of, first-degree murder, he too would have been subject to a life sentence without parole. By agreeing to testify against Brown, Warner gained the opportunity to plead guilty to manslaughter with an attendant fifteen-to-thirty year prison sentence. At Brown's trial, defense counsel's cross-examination of Warner was cut short at the point at which counsel asked Warner to tell the jury the maximum sentence for first-degree murder.
In my judgment, this curtailment of defense counsel's efforts to challenge Warner's credibility significantly impaired Brown's defense. However, I agree with my colleagues that the impairment was not a deficiency in the trial process of such gravity that it "undermines confidence in the outcome of the trial." United States v. Bagley , 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
* Of the Eastern District of Pennsylvania, sitting by designation.
1. N.H. Rev. Stat. Ann. § 630:1-a.
2. State v. Brown, 132 N.H. 520, 567 A.2d 544 (1989).
3. See 28 U.S.C. § 2254.
4. Petitioner, Victor Warner (the accomplice), and Neil Watson (the victim), all lived in the same apartment building.
5. As subsequent events would show, one of the men was her son, Victor Warner.
6. The police officers who interviewed petitioner during his statement found him to be rather animated; at one point, he laughed and stated that he had ruined a good jacket and a pair of jeans by getting Watson's blood on them. He also indicated that the killing did not bother him as much as it should.
7. At trial, a forensic pathologist called by petitioner, disagreed with the chief medical examiner's opinion. In the pathologist's opinion, the autopsy findings regarding the level of fluid in the lungs were not sufficient to rule drowning as the cause of death and additional testing should have been performed.
8. Petitioner asserts that New Hampshire's rule is inapplicable here for several reasons. First, the prosecution first elicited sentencing information from the accomplice and having thus opened the door it could not thereafter exclude such information. Second, the prosecution gains an unfair advantage by informing the jury what punishment the accomplice actually received while excluding the penalty which the accomplice had avoided. Because the right of confrontation under the Sixth Amendment is paramount, New Hampshire's rule should not be followed. We think petitioner's "fairness" argument is at best, mere speculation. In any event, petitioner's argument cuts both ways. Assuming that the prosecution did indeed gain an edge by telling the jury the punishment the accomplice received, it is reasonable to assume that at the same time the jury would have inferred that the accomplice avoided a much more severe penalty and thus had a great propensity to lie about the facts of the murder. Furthermore, petitioner's argument -- that we should disregard New Hampshire's rule -- boils down to the novel proposition that once evidence of a plea agreement has been introduced at trial, the confrontation clause prohibits the trial Judge from imposing limitations on cross-examination regarding the plea agreement. But "'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Delaware, 475 U.S. at 679 (citing Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (emphasis in original)).
9. In fact, as the district court found, petitioner's trial counsel suggested this much to the jury during closing arguments when he stated: Vic Warner told you he was afraid he'd go down on first degree murder charge. That's why he pled. He's not real happy with 15 to 30, but it sure beats the alternative. Tr. Vol. XI, at 25.
10. Since no constitutional error was committed, we will not reach the issue of whether the error was harmless beyond a reasonable doubt.