Charles R. Bright v. Edwin Shimoda, and Attorney General, State of Hawaii

819 F.2d 227, 23 Fed. R. Serv. 327
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 5, 1987
Docket85-2498
StatusPublished
Cited by19 cases

This text of 819 F.2d 227 (Charles R. Bright v. Edwin Shimoda, and Attorney General, State of Hawaii) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles R. Bright v. Edwin Shimoda, and Attorney General, State of Hawaii, 819 F.2d 227, 23 Fed. R. Serv. 327 (9th Cir. 1987).

Opinions

KENNEDY, Circuit Judge:

Petitioner Charles Bright seeks a writ of habeas corpus, claiming that the restrictions on cross-examination of a prosecution witness deprived him of the opportunity to confront the witnesses against him, in violation of the sixth and fourteenth amendments. We conclude that the restrictions were constitutionally permissible. We therefore affirm the conviction.

A Hawaii jury convicted Bright of murdering Zigmunt Zaborowski, generally known as Mike Todd. Bright admits he killed Todd, but maintains he did so in self-defense.

At trial, prosecution witness Carl Shank testified about a telephone conversation with Bright. In the state’s view, this testimony established that Bright pressured a witness to lie, indicating that he was aware of his guilt. The relevant portion of Shank’s testimony is as follows:

Q. Did he [Bright] talk to you about Mike Todd?
A. Oh yes, yes.
Q. What did he tell you about Mike?
A. He said that Mike seemed like a bad person, make him seem bad.
Q. He told you that the night before trial started?
A. Yes.
Q. What did you tell him?
A. I told him I got to tell the truth, you know. I got to say what I have to say and that’s the truth.

During cross-examination, Bright’s counsel offered an alternative explanation of the conversation: Bright merely urged Shank to tell the truth about Todd’s violent [228]*228disposition. Shank rejected this explanation. To support his characterization of the conversation, Bright’s counsel tried to ask Shank about particular criminal acts Todd had allegedly committed. The trial judge prevented him from doing so.1

Bright claims that the trial judge improperly restricted his cross-examination of Shank. In reviewing his claim, we must determine whether the trial judge allowed “adequate” and “effective” cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir.1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978). More precisely, we must determine whether the jury, without the cross-examination Bright desired, “[was] otherwise in possession of sufficient information upon which to make a discriminating appraisal of the subject matter at issue.” Skinner, 564 F.2d at 1389.

As a matter of state evidence law, the trial judge’s ruling was correct. Under Hawaii Rule of Evidence 405, cross-examination with regard to specific instances of conduct is permissible only if evidence of character or a trait of character is offered on direct examination. Haw.R.Evid. 405(a). Here, no such evidence was offered on direct. Shank testified about Bright’s entreaties on the eve of trial, not about Todd’s character. As the district court noted, “[t]he victim’s character was not an issue ... until [the defendant] brought it up on cross-examination.” Foreclosing cross-examination regarding specific instances of Todd’s conduct was, therefore, entirely proper.

Bright contends that Shank’s description of the telephone conversation constitutes character testimony. In support of this contention, he relies on a tortuous chain of inferences, proceeding roughly as follows: Bright urged Shank to describe Todd as a “bad person” but Shank refused; Shank therefore implied that Todd had good character; that implication constitutes character testimony. In our view, the chain is simply too attenuated to make inquiry into specific instances of conduct, with its attendant hazards, mandatory under the state’s rules of evidence.

Questioning Shank about Todd’s character would arguably have been permissible during Bright’s self-defense case. See [229]*229Haw.R.Evid. 405(b). However, Bright has never claimed that questioning Shank was part of his self-defense case. Instead, he has maintained that he attempted to introduce Todd’s character on cross-examination to rebut the inference that he urged Shank to lie, a collateral inquiry that could be properly foreclosed by the trial judge.

Evidentiary rulings valid under state law may still violate the Constitution. See e.g., Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Nonetheless, we strive to avoid the creation of a “vast and precise body of constitutional common law controlling the particulars of cross-examination” under the guise of the confrontation clause. Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir.1980). Accordingly, we are reluctant to set aside a conviction when the defendant has enjoyed substantial cross-examination, particularly when the topic of cross-examination is a collateral matter. See Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam) (confrontation clause does not guarantee cross-examination effective in whatever way and to whatever extent defense wishes).

Bright’s counsel cross-examined Shank at length. He asked Shank whether Bright urged him to lie about Todd, and explored Shank’s understanding of the word "lie.” He asked Shank whether Todd was a bad person, and discussed Shank’s idea of a “bad person.” Throughout, he pressed Shank, albeit unsuccessfully, to adopt the defense’s interpretation of the conversation with Bright. In sum, while Bright’s counsel did not have the chance to take every possible tack with Shank, he did have the opportunity for substantial cross-examination.2

When substantial cross-examination has taken place, courts are less inclined to find confrontation clause violations. In United States v. Barrett, 766 F.2d 609 (1st Cir.), cert. denied, — U.S. —, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985), for example, the court affirmed a conviction despite the trial judge’s restriction of cross-examination concerning a witness’ unprosecuted crimes. The court held that cross-examination regarding the witness’ plea agreement provided the jury with sufficient information about the witness’ potential bias, and rejected the. confrontation clause challenge. Similarly, in Batchelor v. Cupp, 693 F.2d 859 (9th Cir.1982), the court affirmed a conviction despite the trial judge’s restriction of cross-examination concerning drug use by key witnesses. The court did not deny that the witnesses’ drug use was relevant, but decided that other evidence of it, already before the jury, satisfied the confrontation clause.

In addition to the amount of cross-examination permitted, another factor counseling affirmance is the collateral nature of the additional cross-examination Bright desired.

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819 F.2d 227, 23 Fed. R. Serv. 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-r-bright-v-edwin-shimoda-and-attorney-general-state-of-hawaii-ca9-1987.