State v. Vogleson

571 S.E.2d 752, 275 Ga. 637

Opinions

Benham, Justice.

Appellee Owen Vogleson was found guilty of trafficking in cocaine.¹ A divided Court of Appeals reversed the judgment of conviction on the ground that Vogleson’s Sixth Amendment right to confront the witnesses against him was abridged when his counsel was not permitted to cross-examine his co-indictee, Damon Wilson, about the scope of the deal Wilson had negotiated with the State in exchange for his testimony against appellant. Vogleson v. State, 250 Ga. App. 555 (1) (552 SE2d 513) (2001).² We granted a writ of certiorari to the Court of Appeals to address whether the Court of Appeals erred. We conclude the Court of Appeals was correct and affirm its reversal of the judgment of conviction.

In the case at bar, the jury was made aware during the State’s direct examination of Wilson that Wilson had agreed to testify against Vogleson in exchange for the district attorney’s recommendation that Wilson serve ten years, “a reduction in the amount of time [he was] to receive in this case. . . .” Through defense counsel’s cross-examination of Wilson, the jury learned that Wilson had agreed to plead guilty to the lesser offense, possession of cocaine with intent to distribute, and to the marijuana charge, and was not going to face the firearms charge. What the jury was not permitted to hear was Wilson’s testimony about his understanding of the disparity between the sentence the State would recommend in exchange for his cooperation and the sentence he would have received without that cooperation. Vogelson v. State, supra, 250 Ga. App. at 560.³

1.

The Sixth Amendment to the [U. S.] Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” . . . The main and essential purpose of [the right of] confrontation is to secure for the opponent the opportunity of cross-examination. . . . [A]n . . . attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” [Cit.] . . . [T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [Cit.]

Davis v. Alaska, 415 U. S. 308, 315-317 (94 SC 1105, 39 LE2d 347) (1974). In Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982), this Court read the Supreme Court’s ruling in Davis v. Alaska as

guaranteeing the defendant in a criminal trial. . . the right to cross-examine a key state’s witness concerning pending criminal charges against the witness. . . . “It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness.” [Cit.] Whether or not such a deal existed is not crucial. [Cit.] What counts is whether the witness may be shading his testimony in an effort to please the prosecution.

That is not to say, however, that the Confrontation Clause of the Sixth Amendment prohibits the imposition of any limits on the cross-examiner’s inquiry into the potential bias of an adverse witness. The U. S. Supreme Court made it clear in Delaware v. Van Arsdall, 475 U. S. 673, 679 (106 SC 1431, 89 LE2d 674) (1986), that 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’ safety, or interrogation that is repetitive or only marginally relevant.

This Court expressed a similar sentiment in Hines, supra, 249 Ga. at 260, when it observed that “ ‘[t]he extent of cross-examination with respect to an appropriate subject of inquiry is within the sound dis-of the trial court. It may exercise . . . reasonable judgment in determining when the subject is exhausted. . . .’” The testimony of a witness who has made a deal with the State regarding his understanding of the disparity between the sentence he is getting for his cooperation and the sentence he would have gotten without that cooperation is objective evidence from which a jury can determine whether the witness is biased to a degree that affects credibility and is an appropriate subject of inquiry. In and of itself, such testimony is not unreasonable as a matter of harassment or prejudice, it does not tend to confuse the issues or concern the safety of the witness, or constitute interrogation that is repetitive or only marginally relevant. See Delaware v. Van Arsdall, supra, 475 U. S. at 679.

Defense counsel is entitled to a reasonable cross-examination on the relevant issue of whether the witness entertained any belief of personal benefit from testifying favorably for the prosecution. Beam v. State, 265 Ga. 853 (4) (463 SE2d 347) (1995); Watkins v. State, 264 Ga. 657 (1) (b) (449 SE2d 834) (1994). See also OCGA § 24-9-68, which provides that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” What the witness believed concerning his deal with the prosecution is relevant since his belief reflected on his motives in testifying. Owens v. State, 251 Ga. 313 (1) (305 SE2d 102) (1983). See also Shaw v. State, 201 Ga. App. 456, 458 (411 SE2d 537) (1991), where Judge Beasley, in a special concurrence, noted that a witness’s understanding of the sentence he/she was facing is relevant to the degree of bias as it shows how high the witness thought the stakes were.

It is clear that the trial court abuses its discretion and commits error when it cuts off all inquiry on a subject on which the defense is entitled to reasonable cross-examination. Beam v. State, supra, 265 Ga. at 857; Hines v. State, supra, 249 Ga. at 260. See also Garcia v. State, 267 Ga. 257 (7) (477 SE2d 112) (1996). In the case at bar, the trial court informed defense counsel, “We don’t talk about mandatory sentences. We don’t talk about any of that stuff[,]” and then admonished counsel for ignoring the court’s directive when counsel asked the witness, without referring to “mandatory sentences,” about how much prison time the witness was saving himself by cooperating with the State and testifying against Vogleson. In so doing, the trial court abused its discretion. We agree with the Court of Appeals that the trial court abused its discretion when it did not permit defense counsel to question a witness who is testifying for the State in exchange for a reduction in prison time about the witness’s belief concerning the amount of prison time he is avoiding by testifying against the defendant. See Carroll v. State, 916 SW2d 494 (9) (Tx. Cr. App. 1996); United States v. Roan Eagle, 867 F2d 436 (6) (8th Cir. 1989) (the right of cross-examination of a witness testifying pursuant to a plea agreement includes the range of punishment the witness is facing pursuant to the agreement and that which the witness knew he/she was facing without a deal).

We disagree with the assertion that our decision in Hodo v. State, 272 Ga. 272 (4) (528 SE2d 250) (2000), controls this case. In Hodo, we concluded that the defendant’s constitutional right to confrontation was not violated when the trial court refused to permit defense counsel to question a witness for the State about the potential sentence the witness could face in light of the criminal conduct he had admitted while testifying. Defense counsel was not asking the witness about any deal he had struck with the State in exchange for his testimony, any charges pending against him, or any charges recently disposed of in conjunction with his testimony. Instead, defense counsel was asking the witness to speculate about the punishment that could be imposed upon him should the State decide to prosecute him for the criminal conduct he had admitted in his testimony.

2. The State maintains that the introduction of the witness’s testimony about the sentence he would have received had he not cooperated with the prosecution injects the issue of the defendant’s sentence into the guilt-innocence phase of the trial and thereby threatens our bifurcated trial system in which the jury determines guilt and the trial judge imposes sentence. In essence, the concern is that, upon being informed of what sentence(s) the dealing witness could have received, the jury will be able to discern what sentence(s) the defendant on trial is facing and use that knowledge to fashion a verdict that will result in the sentence the jury wishes to see imposed upon the defendant being tried. See Vogleson v. State, supra, 250 Ga. App. at 564 (Eldridge, J., dissenting). It is important to note that this concern comes about only when the jury knows that the witness and the defendant were charged with the same crimes and that they have similar criminal histories, and the jury sees the two accomplices as equally culpable or the defendant on trial as less culpable than the accomplice who negotiated a deal.⁴

The potential for harm suggested by the State could be put to rest by a limiting instruction given the jury by the trial court prior to the receipt of the witness’s testimony, much like the limiting instruction currently given prior to the admission of similar transaction evidence. Furthermore, we note that other public policy decisions more solidly based on statutes have had to yield to the criminal defendant’s constitutional right to cross-examine a witness against him to show bias, motive, or contradictory testimony. See, e.g., Mangum v. State, 274 Ga. 573, 574 (555 SE2d 451) (2001) (restriction of cross-examination concerning a witness’s status in juvenile court due to concerns about the confidentiality of juvenile offender records yields to criminal defendant’s right of confrontation). Cf. Matthews v. State, 268 Ga. 798 (4) (493 SE2d 136) (1997) (restriction of cross-examination concerning a witness’s successfully-completed first offender status must yield to a criminal defendant’s constitutional right to cross-examine the witness for bias). So, too, must a series of dependent inferences springing from the statutory bifurcation of trial yield to the constitutionally-guaranteed right of confrontation. See People v. Mumford, 455 NW2d 51 (Mich. App. 1990) (strict adherence to rule against informing jury of defendant’s possible punishment deprived defendant of opportunity to present to jury important aspect of plea bargain and thereby deprived defendant of constitutional right to confrontation).

3. Lastly, there is the question of whether the violation of Vogleson’s constitutional right of confrontation was harmless error. Delaware v. Van Arsdall, supra, 475 U. S. at 684, 106 SC at 1438 (“constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to . . . harmless-error analysis.”). The State must show beyond a reasonable doubt that the error did not contribute to the verdict, and the test is whether the evidence may have influenced the jury. Mangum v. State, supra, 274 Ga. at 577. Because Wilson and Vogleson were the only two occupants of Wilson’s vehicle in which the cocaine was discovered, Wilson was the only witness who could say the cocaine belonged to Vogleson and that Vogleson had knowledge of the drug transaction planned for the cocaine. Because of the limitation on defense counsel’s cross-examination of Wilson, Vogleson was not permitted “ ‘to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, 415 U. S. at 318.” Mangum v. State, supra, 274 Ga. at 577. The State has not established that the limitation on the right of confrontation was harmless beyond a reasonable doubt. Id. Because we conclude that the error may well have influenced the verdict, we agree with the Court of Appeals that Vogleson is entitled to a new trial. Id.

Judgment affirmed.

All the Justices concur, except Hunstein, Carley, and Hines, JJ, who dissent.

Footnotes

1

Vogleson and his companion, Damon Wilson, were jointly indicted and charged with trafficking in cocaine, possession of cocaine with intent to distribute, and possession of more than one ounce of marijuana. Wilson was also indicted for possession of a firearm during the commission of a crime. The co-indictees were tried separately, with Wilson convicted at a “stipulated bench trial” of possession of cocaine with intent to distribute and possession of more than one ounce of marijuana. Wilson v. State, 249 Ga. App. 560 (549 SE2d 418) (2001). In a jury trial, Vogleson was found guilty of the two cocaine counts and the trial court directed a verdict of acquittal on the marijuana charge. The trial court sentenced Vogleson to 25 years’ imprisonment on the trafficking conviction after determining that the cocaine possession conviction was an offense included in the trafficking conviction.

2

Since its Vogleson decision, the Court of Appeals has issued similar opinions in Perez v. State, 254 Ga. App. 872 (564 SE2d 208) (2002), and Green v. State, 254 Ga. App. 881 (1) (564 SE2d 731) (2002). See also Hernandez v. State, 244 Ga. App. 874 (537 SE2d 149) (2000).

3

In Perez v. State, supra, 254 Ga. App. at 876, Judge Ruffin, in a special concurrence described the prohibited testimony as that from which the jury could determine “whether the deal the witness struck with the [Sítate was sufficiently lucrative to render that witness’s testimony less creditworthy.”

4

Any jury sympathy for the defendant engendered by the revelation of the sentencing disparity has its genesis in the State’s offer of reduced sentencing in exchange for testimony. See Hernandez v. State, supra, 244 Ga. App. at 877.