United States v. Colon-Atienza

22 C.M.A. 399
United States Court of Military Appeals·Decided July 6, 1973·No. No. 26,674·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

Quinn, Judge:

On testimony by PFC Schuette that he had purchased a packet of heroin from the accused, in a barracks of the 414th Signal Company at Fort Meade, the accused was convicted of wrongful possession and sale of heroin. During cross-examination by defense counsel, Schuette, on the advice of his own lawyer, refused to answer a number of questions on the ground of self-incrimination. A defense motion to compel Schuette to answer or to strike his testimony was denied by the trial judge. The accused challenges the correctness of that ruling.

Appellate government counsel concede that included in the accused’s right to confront an adverse witness is the right to cross-examine him. See In re Oliver, 333 US 257 (1948); Manual for Courts-Martial, United States, 1969 (Rev. ed.), paragraph 149 Z>. They also concede that unreasonable limitation of cross-examination may amount to reversible error. Alford v United States, 282 US 687 (1931); United States v Greene, 21 USCMA 543, 45 CMR 317 (1972). However, they contend that "in both content and purpose,” all questions Schuette refused to answer constituted only "attempted attacks on . . . [his] credibility.” Relying upon United States v Cardillo, 316 F. 2d 606 (2d Cir. 1963), cert. denied, 375 US 822 (1963), they maintain that [400] an attack on the credibility of the witness is a collateral matter in regard to which the witness’ assertion of the right against self-incrimination presents, in the language of Cardillo, 316 F. 2d at 611, "little danger of prejudice to the defendant,” as distinguished from invocation of the right in connection with questions dealing with "the details of his direct testimony.”

, The view we take of the import of the cross-examination of Schuette makes it unnecessary to consider whether government counsel correctly interpret Cardillo as holding that inquiry into the credibility of a vital government witness is a "purely collateral” matter. Suffice it to note that other federal appellate courts have held that the trial judge’s refusal to strike the testimony of a material government witness who refuses to answer defense questions calculated to impeach his credibility can constitute prejudicial limitation of the accused’s right to cross-examine the witness. See United States v Fowler, 465 F2d 664 (DC Cir 1972); Montgomery v United States, 203 F2d 887 (5th Cir 1953). We are satisfied that some of the questions asked Schuette went to the core of his direct testimony and were crucial to the merits.

Schuette testified that he received a marked $20 bill from Captain Spruill, the company commander, to buy heroin from the accused. Schuette’s association with the captain in regard to drug-use curtailment began several months earlier when Schuette turned himself in, in response to an exhortation by Captain Spruill to company personnel to disclose their involvement with drugs and be helped to terminate the connection or face "plenty of trouble” if caught. Schuette was the only one to respond to the invitation and he was, as described by Captain Spruill, "scared out of his pants.” According to Article 32 testimony which was acknowledged at trial, Captain Spruill promised Schuette that he would transfer him, as he desired, if information provided by him as to drug use in the company "panned out.”

Spruill gave Schuette the marked money on Sunday morning, December 6. Apparently, he anticipated there might be some "slippage” on Schuette’s part because he cautioned him "to make sure” that the bill was not used for any purpose but the purchase of narcotics from the accused, but if it was so used, Schuette was to let the captain know. The next morning, Captain Spruill saw Schuette in the orderly room. The accused was also present. Spruill asked Schuette if he stilL had "the bill” and Schuette assured him that he did. When the accused left, he told Schuette "to go out and see if he could make a purchase from him.” Schuette also left. About 15 to 30 minutes later, he returned. According to Captain Spruill, he looked "flustered.” He "handed” the captain a small tinfoil package, saying "this is it.” Captain Spruill was "fairly familiar” with various types of narcotics and their packaging. Apparently, he was surprised by the small size of the packet he received from Schuette. Based on an apparently standard "cut” of 6 percent, he expected a packet about twice the size, or "maybe a little larger,” of the one he received. He remarked that it was "an awful small amount for twenty bucks.” Schuette’s response was: "[W]ell this is the pure stuff.” Shortly thereafter, the accused was searched, and the marked $20 bill was found in his possession.

One theory of defense that emerged from the cross-examination of government witnesses was that the packet of heroin allegedly obtained from the accused actually belonged to Schuette. To develop the theory further, Schuette was asked a number of questions dealing with his own use and sources of supply of narcotics. The material questions and Schuette’s responses are as follows:

Q. Where were you able to get the money to purchase narcotics?
A. I refuse to make a statement.
Q. How big of a narcotic habit did you have, sir?
A. I refuse to make a statement.
Q. Isn’t it true that you would have done anything at this point to get money to purchase narcotics?
A. I refuse to make a statement.
Q. You made a purchase the day before didn’t you?
[401] A. Yes, sir.
Q. Who did you make the purchase from the day before?
A. I refuse to make a statement.
Q. How much of a purchase did you make the day before?
A. I refuse to make a statement.
Q. How many different people did you purchase narcotics from?
A. I refuse to make a statement.
Q. How long have you been purchasing these narcotics?
A. I refuse to make a statement.
Q. You knew most of the people on the Fort Meade property that were using narcotics, did you not?
A. I refuse to make a statement.
Q. Now, you have been going up to New York regularly around this time to get narcotics in New York, were you not?
A. I refuse to make a statement.

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United States v. Colon-Atienza, 22 C.M.A. 399 (cma 1973).

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