The opinion of the court was delivered by: DITTER
On June 1, 1983, defendant was indicted for various drug-related offenses. After extensive pre-trial proceedings, and on the eve of trial, this indictment was withdrawn by the government. On April 16, 1984, defendant was reindicted for essentially the same conduct alleged in the prior indictment. On April 17, 1984, defendant, with counsel, appeared before Magistrate Hall and was released on $25,000 unsecured bond. Trial commenced on May 18, 1984, and on May 23, 1984, the jury returned a guilty verdict on five counts and a not guilty verdict on one count. Presently before me is defendant's motion for a new trial or arrest of judgment.
Defendant first contends a new trial is warranted because evidence of other offenses was allowed. While counsel has not cited any specific incident, I have reviewed the record and found two occasions where the word "cocaine" was mentioned. In both instances the government's paid informant was explaining his conversations with the defendant, conversations which were tape recorded, admitted into evidence, and played to the jury. Because these conversations were in coded language, the testimony, which in essence explained that certain words were intended to refer to cocaine, was necessary to explain what was being said. Furthermore, this testimony was necessary to put the taped conversations into perspective. See T.R. 334-36. For these reasons, I concluded the probative value of the testimony far outweighed any prejudice to the defendant. There was no error.
Defendant next asserts that jury selection was "impeded" because his counsel was not allowed to ask proper questions. Defendant has not enumerated those questions he was not allowed to ask but I recall much being made of my refusal to question prospective jurors as to "whether or not they would necessarily believe the testimony of a police officer or FBI agent simply because he is a police officer or FBI agent." T.R. 83. I rejected the question because it is manifest nonsense to ask people how they will react to undescribed testimony about unstated matters in an unknown context given in an undisclosed way by a vague category of unseen witnesses.
The question is akin to the equally unanswerable query: would you believe the testimony of a policeman over that of someone who is not a policeman? Again, it is meaningless to ask prospective jurors to speculate as to how they would compare a vague something (all policemen, most policemen, or a specific policeman, no matter what is said) to an unknown nothing (everyone else, no matter who they are or what they say) where the only limit is the breadth of the veniremen's imagination.
For example, a thoughtful venireman in contemplating a response might canvas the entire universe of all "nonpolicemen." In so doing he would surely think of someone he would believe more than some unknown, unseen policeman: a priest, parent, or paragon. Conversely, an equally thoughtful venireman, in contemplating his response, might not think of those he trusts most, but those he trusts least, a punk, perjurer, or procurer. Both potential jurors may possess the same objectivity or prejudice, but because of the overgenerality of the question and the concomitant divergence in comparisons, each may give a different response.
Moreover, as I fully explained to counsel at the time I refused to engage in voir dire on this issue, the context of testimony is critical. The weight to be given any witness cannot, and should not, be preordained until he has testified and the jurors have had a chance not only to observe him but to compare his testimony to all the other evidence. It is this very principle which prompts trial judges to instruct jurors not to make decisions, including decisions as to credibility, until they hear all the evidence, the arguments of counsel, and the court's instructions as to the law. In fact, such an instruction was given in this case at the request of defense counsel. T.R. 187-90.
Not surprisingly, courts have held it not to be an abuse of discretion to refuse to question prospective jurors about the weight they will give the testimony of a law enforcement officer, as opposed to the testimony of an ordinary citizen. United States v. Vadino, 680 F.2d 1329, 1336-37 (11th Cir. 1982) (citing United States v. Jackson, 448 F.2d 539, 542-43 (5th Cir. 1971), cert. denied, 404 U.S. 1063, 30 L. Ed. 2d 752, 92 S. Ct. 750 (1972)), cert. denied, 103 S. Ct. 1771, 460 U.S. 1082, 76 L. Ed. 2d 344 (1983); United States v. Gassaway, 456 F.2d 624, 625-26 (5th Cir. 1972); Ross v. United States, 374 F.2d 97, 104-06 (8th Cir. 1967). This is not to say, however, that there is unanimous agreement on the point, and the desirability of asking a question like that requested by counsel has been acknowledged, albeit without analysis, by a jurist no less than the Honorable Warren E. Burger when he was a court of appeals judge. See Brown v. United States, 119 U.S. App. D.C. 203, 338 F.2d 543 (D.C. Cir. 1964). However, even under the standard used in Brown, a new trial is not warranted in this case because the most incriminating evidence came, not from police officers, but from wiretaps and the testimony of an informant whose credibility was fully explored on cross-examination. See id. at 545 ("The issue turns on the degree of impact which the testimony in question would be likely to have had on the jury and what part such testimony played in the case as a whole."). My refusal to ask the question as phrased by defense counsel was entirely proper.
Defendant's third ground for a new trial contends he was not allowed to present his case to the jury. While counsel has not explained what he means by this assertion, I assume he is challenging my refusal to continue the trial for a week to afford defendant additional time to procure the presence of three witnesses. This is what occurred. Certain incriminating evidence had been found in the attic of the building where the defendant lived. Defendant introduced evidence to show that the room in question was occupied by another man and that he, the defendant, lived on the third floor of the building. At approximately 12:15 on the fourth day of trial, Tuesday, May 22, 1984, defense counsel asked that we recess for lunch so that defendant's state parole officer, John Lonergan, could be afforded an opportunity to testify he visited defendant on the third floor, not the attic where the evidence was found. Lonergan had not been subpoenaed and defense counsel explained that his client "claims he may be able to get ahold of him during the lunch break maybe and get him down here." T.R. 544. I granted defense counsel's request and court was recessed until 1:30 p.m.
When court resumed, defense counsel said for the first time he also wanted an opportunity to subpoena Bell Telephone Company records which would show the defendant's address to be on the third floor of the building. I refused a recess for that purpose
but said we would wait another half hour for Lonergan.
At 2:08 when court resumed, Lonergan had not appeared but another half hour was used in ruling on defense counsel's points for charge. Significantly, defense counsel, at this point, confirmed he had not interviewed Lonergan and did not know what he would say, except for what the defendant had told him, that is, Lonergan had visited defendant on the third floor. T.R. 564. As to this fact, however, the government was willing to stipulate. T.R. 557-58. There was no indication that Mr. Lonergan would testify that the third floor apartment was the defendant's residence, and this was the testimony defendant really wanted. See id.
At this time defense counsel stated he also wanted to call Tracey Caldwell, the wife of a government witness, who would "hopefully" impeach his credibility. T.R. 558. Counsel admitted he personally did not have the "slightest idea" of what she would say, having never talked with her and having never subpoenaed her. Counsel's only information had come to him "indirectly." The defendant had never talked to Mrs. Caldwell either. T.R. 561. However, the FBI had interviewed Mrs. Caldwell and the assistant United States attorney stated that Mrs. Caldwell would not testify in the manner the defendant had suggested. T.R. 559. At that point, we had waited, at defense counsel's request, for more than two hours. Defense counsel asked that the trial be continued until the following Monday. T.R. 559. I refused to do so.
A movant must show that due diligence has been exercised to obtain the attendance of the witness, that substantial favorable testimony would be tendered by the witness, that the witness is available and willing to testify, and that the ...