Opinion
No. 55195.
February 24, 1975. Rehearing Denied March 31, 1975.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE THOMAS C. WICKER, J.
Philip E. O'Neill, Metairie, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Parish of Jefferson, Gretna, for plaintiff-appellee.
The defendant, Wanda Gayle Thornton, was charged by Bill of Information with knowingly and intentionally distributing a controlled dangerous substance, marijuana, in violation of La.R.S. 40:966(A). She was found guilty after a jury trial and was sentenced to imprisonment at hard labor for eighteen months.
The defendant reserved and perfected eighteen Bills of Exceptions but elected to proceed with only Bill No. 8. The other bills are thus abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).
Bill No. 8 was reserved when the trial court refused a defense request to order the State's principal witness, Michael DeSalvo, an undercover narcotics agent of the Jefferson Parish Sheriff's Office, to reveal his residential address during cross-examination.
The witness had, during direct examination, identified the defendant as the person who, with another subject, had sold him a "brick" of marijuana for $170.00. He related the facts surrounding the transaction and the tests he ran of the substance sold him.
The residential address refusal colloquy was as follows:
"Q: Now Agent DeSalvi, when you first took the stand, you gave your residence as 3828 Veterans Highway, is that right?
"A: I did not, that is not my residence address.
"Q: What is your residence address?
"A: I prefer not to give it out.
"MR. O'NEIL: May It please the Court, at this time I would ask the Court that the witness be told to give his resident address.
"THE COURT: What is the relevancy of that?
"MR. O'NEIL: Your Honor, the relevancy of this is a United States Supreme Court decision that goes back to 1832, in which the denial of confrontation in cross-examination, if there be no residence address, so I can check his background, his surroundings and his neighborhood and without this information, I have no right to cross-examination in checking his character.
"THE COURT: The Court is going to overrule the objection." (Emphasis added)
The defendant cites and relies upon Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L.Ed. 624 (1931) and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L. Ed.2d 956 (1968), in support of her assertion that it was reversible error to disallow the residence inquiry on cross-examination.
Alford was a prosecution for using the mails to defraud. Cross-examination questions seeking to elicit the address of a government witness were disallowed when the government objected. The witness, a former employee of the defendant, gave damaging testimony against the defendant on direct examination. The defendant there argued that answers to the questions were necessary in order to inform the jury as to "who the witness is, where he lives and what his business is." Additionally he argued that he had cause to believe that the witness was in the custody of Federal authorities and that eliciting this information was proper in his effort to show bias and prejudice.
The Supreme Court, reversing the conviction, said that the questions were proper to identify the witness with his environment and to show possible bias or prejudice resulting from his custodial status. The Court acknowledged that the right of the trial court to regulate the extent of cross-examination when the subject has been exhausted, and the duty imposed on the trial judge to protect the witness from "questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate," permissible limitations on cross-examination, were not involved.
Smith was a prosecution for an illegal sale of narcotics. There the principal witness against the defendant identified himself as "James Jordan." He testified that the defendant sold him heroin in a restaurant. Police officers corroborated his testimony except for the crucial events inside the restaurant, which they did not witness. The witness admitted on cross-examination that the name he gave was not his real name. The trial court refused to order him to reveal his real name and address.
The Supreme Court found that the actions of the trial court "emasculated the right of cross-examination itself." Quoting extensively from Alford, the Court held that the defendant had been deprived of his rights under the Sixth and Fourteenth Amendments. The Court did acknowledge however, that the trial court has a duty to protect the witness from questions which harass, annoy or humiliate.
Justices White and Marshall concurred, placing questions which "tend to endanger the personal safety of the witness" in the same category as those which harass, annoy or humiliate.
In a recent case similar to the one before us, the Fifth Circuit Court of Appeals upheld the refusal of a District Court to order a government witness, an undercover narcotics agent, to reveal his residential address. United States v. Alston, 460 F.2d 48 (5th Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). The Court there said:
"It is true, as Alston urges, that both Alford and Smith reversed criminal convictions because the home address of a witness was not divulged. But it appears to us that the purpose of Alford/Smith was to safeguard the opportunity for a meaningful and open cross-examination, not to require that a witness always divulge his or her home address."
The critical question according to the Fifth Circuit is whether or not the defendant was given sufficient "opportunity to place the witness in his proper setting."
"Thus, while a witness would normally be required to answer all questions regarding his or her background, there are exceptions to that requirement. The witness should have the opportunity to demonstrate to the trial judge that his or her home address does not constitute information necessary 'to place the witness in his proper setting.' Put another way, the witness should have the opportunity to demonstrate to the trial judge that the defendant's solicitation of his or her home address constitutes only an attempt to 'harass, annoy or humiliate.' We think that a reasonable interpretation of this area of exception, acknowledged by Smith and Alford, to the usual requirement that the witness divulge background information would include an instant in which the physical safety of the witness or his family might be endangered by disclosure. [Citations omitted] . . . The spectrum of cross-examination is wide and long but it is not infinite in scope. The trial court must have some authority to armor a witness against extra-judicial weaponry." 460 F.2d at 52.
In the case before us the witness testified that he was an agent with the narcotics division of the Jefferson Parish Sheriff's Office and that he had been employed for seven years by the Sheriff's Office. Counsel for defendant on cross-examination extracted all information he sought except the witness' residential address. Defendant was not denied the opportunity to place the witness in his proper setting. Nor has he shown any other relevant pursuit or area of inquiry which was thwarted by the Court's refusal to permit the question.
We find creditable the reasons advanced by the trial court in its per curiam to this bill in support of its ruling:
"This court believes that to disclose this officer's personal residence would accomplish nothing save to expose this narcotics agent and his family to possible threats, harassment and physical harm. Prior to the trial of this case, it had been brought to this court's attention that a number of Jefferson Parish narcotics agents and their families have been subjected to threats and harassment at their residences. A number of shots were fired into the home of a narcotics agent in a neighboring parish, barely missing the son of the agent. Additionally, the home of another agent in the same parish was fire-bombed."
Where the question as to the witness' residence would tend to expose the witness to danger and has no relevance other than a general exploration of his background, the trial court may refuse to order the witness to respond. We are not confronted with a situation where the danger-laden question is of specific relevance to the case.
Under the circumstances of this bill we find no error in the trial court's ruling. The Bill is without merit.
For the above assigned reason the conviction and sentence are affirmed.
BARHAM, J., dissents with reasons.
The majority has erred by applying a Fifth Circuit case, United States v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972), when that case is factually inapposite.
Alston does not modify the United States Supreme Court holdings in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L. Ed.2d 956 (1968), and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In Smith a State witness revealed that the name he gave was not his real name. The trial court refused to allow the defendant to ask the witness his real name and address. The Supreme Court reversed, and the language used should govern the case before us:
"In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
"In Alford v. United States, 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218, this Court almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the 'place of residence' of a prosecution witness over the insistence of defense counsel that 'the jury was entitled to know "who the witness is, where he lives and what his business is."' 282 U.S., at 688-689, 75 L.Ed. at 626. What the Court said in reversing that conviction is fully applicable here:
"'It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . .
"'. . . . The question "Where do you live?" was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. . . .
"* * *
"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. . . . But no such case is presented here. . . .' 282 U.S., at 692-694, 75 L.Ed. 627-629.
"In Pointer v. Texas, supra, the Court made clear that 'the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding . . . .' 380 U.S., at 407-408, 13 L.Ed.2d 928. In this state case we follow the standard of Alford and hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution." (Emphasis here and elsewhere supplied.)
The majority in the instant case tries to avoid the application of Smith and Alford, saying that Alston is more similar. In Alston, the Fifth Circuit restricted cross-examination where it would subject the witness to personal danger. That the witness might be placed in jeopardy if he revealed his home address was factually established at the trial. Such a situation had already been dealt with in Smith in the concurring opinions of Justices White and Marshall:
"Mr. Justice WHITE, with whom Mr. Justice MARSHALL, joins, concurring.
"In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. Here the State gave no reasons justifying the refusal to answer a quite usual and proper question. For this reason I join the Court's judgment and its opinion which, as I understand it, is not inconsistent with these views. I should note in addition that although petitioner and his attorney may have known the witness in the past, it is not at all clear that either of them had ever known the witness' real name or knew where he lived at the time of the trial."
Thus, the Fifth Circuit case really decided nothing new nor did it create an exception to the Smith and Alford rulings.
The majority's real error is their finding that the witness in the case we consider would be exposed to danger if his residence address were given. The majority do not detail, for they cannot, any evidence that the witness in this case would be exposed to possible threats or harm. Rather, they rely upon an after-trial per curiam statement of personal opinion by the trial judge to support their finding. There is nothing in the record showing that the State or the witness gave any reasons upon which the trial judge could base his opinion; rather it appears in the per curiam itself, which is quoted by the majority, that the trial judge's opinion was based merely on general observations rather than upon the exercise of "informed discretion." As opined in the Alford concurrence, the State or the witness must at least come forward with some showing as to why the witness should be excused from the usual confrontation by cross-examination. It concerns me greatly that the majority, through misuse of the trial court per curiam, contorted the facts of our case. It further concerns me that they have ignored the clear and concise holdings of two United States Supreme Court cases and they have reached for a factually distinguishable case of a federal appellate court in order to reach the result obtained.
I respectfully dissent.