United States v. Jerome Williams ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1444
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United States of America, *
*
Plaintiff/Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Jerome Williams, a/k/a Bobo Williams, *
*
Defendant/Appellant. *
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Submitted: September 14, 1999
Filed: October 15, 1999
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Before RICHARD S. ARNOLD, BRIGHT and LOKEN, Circuit Judges.
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BRIGHT, Circuit Judge.
Jerome Williams appeals his convictions on two counts of felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of an
unregistered firearm, in violation of 26 U.S.C. § 5841. For these three counts, Williams
received a sentence of 288 months (twenty-four years) imprisonment. Williams claims
hidden bias in the testimony of Kevin Murray, the government's sole corroborating
witness. The bias rested on circumstances indicating that Murray may have testified
favorably to the government to avoid revocation of his probation. On appeal Williams
raises two issues: (1) the government violated Brady v. Maryland, 373 U.S. 83 (1963),
when it failed to disclose Murray's full criminal history, including information about his
probationary status and the possible revocation of his parole, and (2) the district court
erred by refusing to allow cross-examination of Murray about pending charges that
could support a claim of bias. We affirm the district court because the stipulation, to
which both sides ultimately agreed, corrected the government's failure to disclose the
information and rendered any erroneous omissions harmless.
I. BACKGROUND
James Lawson and Tanya Hanks are common law spouses. Around the time of
the incident, they had separated temporarily. Kevin Murray lived in the apartment
below Hanks prior to and at the time of the incident. On Sunday, April 5, 1998, Hanks
invited Lawson to the apartment, where they met outside and walked into the apartment
together. Before going inside, they greeted Kevin Murray, who was outside the
building working on his car.
Lawson testified that Jerome Williams, who was waiting inside the apartment,
threatened him with a sawed-off shotgun when he entered the kitchen with Hanks.1
Williams hit Lawson with the gun twice, and then discharged the gun; the blast left
Lawson with a head wound. Lawson ran from the apartment to his car as Williams
chased him with the gun. Williams then shot out two of Lawson's tires, but Lawson
managed to drive to a gas station before he lost consciousness. Murray was still
outside working on his car when these events occurred. Williams – according to the
government – then ran off and threw the shotgun in a dumpster. Mark Wilderman, a
local resident, was walking his dog when he heard a gun blast. He then saw a black
male run by him and throw a shotgun in a dumpster. Wilderman was unable to identify
Williams as the man who ran by him that day.
1
At trial, the defense suggested that Tanya Hanks and not Jerome Williams had
possessed and used the sawed-off shotgun.
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The police did not make an arrest on the day of the attack, but on April 8, 1998,
law enforcement officers stopped a vehicle with a crooked license plate. Williams was
a passenger in that car, and when the police tried to stop the vehicle, Williams jumped
from the vehicle and ran. The officers chased him on foot and saw him throw a dark
object from his pocket into the bushes. Police recovered a black .38 caliber revolver
from the site. Later, Lawson identified Williams as the man who had attacked him.
At trial, Kevin Murray was the single witness able to corroborate Lawson's
identification of Williams as his assailant. When subpoenaed, Murray tried to evade
testifying at trial because, unbeknownst to the government or defense counsel, he had
warrants pending against him for misdemeanor stealing charges in other jurisdictions.
The briefs are unclear about the exact charges pending against Murray in other
jurisdictions. According to the government, Murray had both a “misdemeanor
conviction” against him as well as “pending misdemeanor warrants.” According to the
defense, Murray was on “probation” and was “wanted in several jurisdictions.” It
appears from the record that Mr. Murray not only had a list of prior felony convictions
that included rape and failure to appear, but was on probation at the time for a
misdemeanor stealing conviction and had warrants pending for his arrest on other
misdemeanor stealing charges.
The government brought Murray into court to testify on a material witness
warrant. At the time the federal prosecutor was preparing Murray as a witness, he
discovered from Murray's lawyer, Eric Butts, that Murray had these warrants pending
in other jurisdictions. During that conversation, Mr. Butts asked the federal prosecutor
to call local prosecutors to inform them that Murray was a government witness in this
trial. The federal prosecutor agreed to do so, but informed Mr. Butts that he would not
request leniency for Murray. On direct examination, the government questioned
Murray about his prior felony convictions, but not the misdemeanor conviction for
which he was on probation, nor the pending warrants for stealing. The government also
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asked Murray whether he was receiving any benefit for his testimony on direct
examination, and Murray responded that he was not.
After Murray had testified and been released as a witness in this case, the federal
prosecutor informed defense counsel and the district court about Murray's pending
charges, his probationary status, and the promised conversation between the federal and
local prosecutors. Once notified, the defense counsel requested that she be allowed to
recall the witness and cross-examine him about his prior misdemeanor conviction,
probationary status, and pending warrants in order to demonstrate that the witness,
facing the possible revocation of his probation, could be biased in favor of the
government in the hope that the government would suggest to local prosecutors that
they be more lenient with him. When the district court disallowed the cross-
examination, the prosecution and defense agreed to a stipulation that would inform the
jury of Murray's situation. Without waiving any of defendant's objections, the trial
court directed defense counsel to read the stipulation to the jury before closing
arguments. The stipulation stated:
The United States versus Jerome Williams. Stipulation: The parties
hereby agree that prior to his testimony, the Government informed Kevin
Murray that a Government prosecutor would inform prosecuting attorneys
in another jurisdiction where Mr. Murray had misdemeanor warrants
pending that he had testified in this case. The Government did not agree
to make any request for leniency on Mr. Murray's behalf. So stipulated
and agreed by Gabriel Gore . . . .
Trial Tr. (II) at 174.
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II. DISCUSSION
A. Brady Violation
Williams contends that the government violated Brady when it failed to inform
defense counsel that Murray was a probationer whose status could be revoked because
of pending misdemeanor charges. "To succeed on a Brady claim, [a] 'defendant must
show that the prosecution suppressed the evidence, the evidence was favorable to the
accused, and the evidence was material to the issue of guilt or punishment.'" United
States v. Whitehead, 176 F.3d 1030, 1036 (8th Cir. 1999) (quoting United States v.
Flores-Mireles, 112 F.3d 337, 339-40 (8th Cir. 1997)). "[T]he Brady rule applies to
impeachment evidence, as well as to exculpatory evidence." United States v. Wayne,
903 F.2d 1188, 1192 (8th Cir. 1990).
Here, reversal based on a violation of the Brady rule cannot prevail because the
error was not prejudicial and amounted to harmless error. Williams emphasizes that
the pending charges against Murray, in the context of Murray's awareness that the
government would speak with local prosecutors about his assistance in this trial, raised
an inference of bias. We agree that the government should have disclosed the
information regarding the pending warrants, misdemeanor conviction, and probationary
status to defense counsel prior to Murray's cross-examination. Although normally the
prosecution need not disclose the mere existence of pending warrants, here the pending
warrants underlay the basis for the federal prosecutor’s promised communications with
local prosecutors. The evidence of Murray’s probationary status and pending
warrants, in combination with the promise of a conversation between prosecutors about
Murray's role as a government witness, could raise an inference that the defendant was
testifying in order to benefit himself. It is a Brady violation to fail to disclose evidence
that a witness is testifying solely to curry the government’s favor in his own
prosecution. See Reutter v. Solem, 888 F.2d 578, 581-82 (8th Cir. 1989). However,
the stipulation sufficiently corrected any otherwise material omissions because
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ultimately the jury learned of Murray's entire criminal history except one misdemeanor
conviction for which he was on probation. Moreover, defense counsel read the
stipulation to the jury before closing arguments; therefore, she had the opportunity to
draw the jury's attention to the witness's bias through argument that she otherwise
would have had through cross-examination.
B. Limitations of Cross-Examination
The limitation on cross-examining Murray also constitutes harmless error. Here,
the district court refused to allow cross-examination on the misdemeanor charges
because they were “wanteds” or pending charges which he found inadmissible for
purposes of impeaching the witness's credibility. This holding does not violate the
Sixth Amendment, see Wise v. Bowersox, 136 F.3d 1197, 1205 (8th Cir. 1998), but
introduction of such evidence is permissible under Rule 608. The presence of
outstanding warrants together with defendant's status as a probationer may serve as a
basis to contend that these circumstances influenced the witness to testify favorably for
the prosecution.2 While the district court may have erred by rejecting a limited cross-
examination on this topic, that decision did not sufficiently prejudice the defendant to
warrant reversal.
2
Evidence of witness bias generally should be made available to the jury. See
4 JACK B. WEINSTEIN ET AL., WEINSTEIN'S FEDERAL EVIDENCE § 607.04[1] (2d ed.
1999) ("Since bias of a witness is always significant in assessing credibility, the trier
of fact must be sufficiently informed of the underlying relationships, circumstances, and
influences operating on the witness to determine whether a modification of testimony
reasonably could be expected as a probable human reaction.") (footnote omitted); see
also Davis v. Alaska, 415 U.S. 308, 317 (1974) ("[T]he jurors were entitled to have the
benefit of the defense theory [of witness bias] . . . so that they could make an informed
judgment as to the weight to place on [the witness's] testimony . . . .").
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III. CONCLUSION
For the reasons stated above, we affirm the convictions.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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