Fred Andrew Johnson v. Lou v. Brewer, Warden, Fort Madison Penitentiary , 521 F.2d 556 ( 1975 )

VAN OOSTERHOUT, Senior Circuit Judge

(dissenting).

I respectfully dissent. I share the majority concern about the low type of persons used by the government as informers. However, the use of this type of witness has been repeatedly sanctioned. The credibility of any witness is to be determined by the jury, not by this court. Although the government’s evidence in this case is not strong, it is sufficient if believed to support the conviction.

The critical issue on this appeal is whether the refusal of the state trial court to permit petitioner to offer the extrinsic evidence pointed out in the majority opinion relating to the witness-informer Nabors’ conduct violates any constitutional right of the defendant.

[FJederal courts possess only limited authority to consider state court evi-dentiary rulings in a habeas corpus proceeding by a state prisoner. Cunha v. Brewer, 511 F.2d 894, 898 (8th Cir. 1975).

See Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Donnelly v. DeChristofo-ro, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The scope of our inquiry is limited to an examination of whether federally guaranteed constitutional rights have been withheld. “The wisdom of evidentiary rulings will not be reviewed in habeas corpus unless they rise to [a] due process standard.” Cage v. Auger, supra at 1232.

The Iowa Supreme Court affirmed Johnson’s conviction. State v. Johnson, 219 N.W.2d 690 (Iowa 1974). In so doing the court held that under the circumstances of this case Iowa law precluded the admission of extrinsic evidence of misconduct to impeach a witness and specifically found no constitutional error.

Chief Judge McManus, before whom this habeas corpus case was tried, in a well-reasoned unreported opinion, likewise held no constitutional error was established and dismissed the petition. Federal Rule of Evidence 608(b), effective July 1, 1975, provides in pertinent part: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.” The foregoing rule re-states the pre-existing law. See United States v. Burch, 490 F.2d 1300, 1302 (8th Cir. 1974); United States v. Whiting, 311 F.2d 191, 196 (4th Cir. 1962); United States v. Masino, 275 F.2d 129, 133 (2d Cir. 1960).

The majority states Hutchings v. State, 518 P.2d 767 (Alaska 1974), is the only case found containing reasonably parallel facts and cites it as supporting a reversal. Hutchings is clearly distinguishable from the case before us. In that case the reversal was based on the trial court’s refusal to permit cross-examination of a witness on the bias issue. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), bases a reversal on unduly restricted cross-examination of a witness which was held to violate the right to confrontation. Neither of the two cases just cited deal with the right to offer extrinsic evidence to impeach a witness.

As stated by Chief Judge McManus in his opinion, petitioner was given a wide latitude in cross-examining Nabors. No error or abuse of discretion was committed with respect to the scope of Nabors’ cross-examination.

For the reasons stated in the opinion of the Iowa Supreme Court and in Chief Judge McManus’ memorandum, I would hold that the petitioner has failed to demonstrate any violation of a constitutional right and would affirm the dismissal of the habeas corpus petition.