Appeal from the United States District Court for the Western District of Wisconsin. No. 73-C-63(H.C.) JAMES E. DOYLE, Judge.
Castle, Senior Circuit Judge, Campbell, Senior District Judge,*fn* and Jameson, Senior District Judge.*fn**
JAMESON, Senior District Judge.
Thomas Monsoor, an inmate of the Wisconsin Correctional Institution, has appealed from a dismissal of his petition for a writ of habeas corpus in which he claims that he is in custody in violation of the United States Constitution.
Following a jury trial in the circuit court of La Crosse County, Wisconsin, Monsoor was convicted of selling marijuana, in violation of Wis. Stats. 161.30(2) and 161.30(12) (d), and was sentenced to two years imprisonment.
The facts are undisputed.*fn1 The state's case against Monsoor rested upon the testimony of Kim Kasabuske, an agent of the Wisconsin Department of Justice. Kasabuske testified that he worked as an undercover agent wearing a disguise and using an assumed name; that he tried to appear to be a member of the drug oriented community; that on March 16, 1971, while working with an informer named Bowman, he purchased a quantity of marijuana from Monsoor at Monsoor's residence. Bowman did not testify at the trial. Over objection, Kasabuske testified that the purchase was initiated by a March 16 telephone call from Bowman to Monsoor. Kasabuske related Bowman's side of the telephone conversation as follows:
"I can't recall it word for word, but he said, 'Hi, Tom' and made some small talk, 'What's up,' something like that and then he asked, 'Do you have anything?' and at this point he turned to me and said, 'He's got some grass.' I said, 'Fine.' He turned back to the telephone and he said, 'We'd like some. Can I bring a friend over?' and he said, 'Well, we'll be right over' and hung up."
Monsoor's defense was entrapment, based upon his claim that Bowman and Kasabuske had persuaded him to sell them marijuana by playing on his sympathetic instincts, that the marijuana which he sold actually belonged to someone else and that he never made any other sales, although persistently solicited by Bowman and Kasabuske to do so.
Monsoor took the stand on his own behalf, and also called as witnesses five of his friends. The defense witnesses testified that on numerous occasions Monsoor had refused to sell marijuana to Bowman, although Bowman had persistently pleaded with him to do so. In addition, defense witness Robert D. Lyons, Jr., a former roommate of Monsoor, testified that he was the person who received the telephone call from Bowman on March 16, 1971.*fn2 Lyons related the telephone conversation as follows:
"[Bowman] just asked 'Is Tommy home.' I said no. He wanted to find a friend of Tom's and he asked me if this friend had any grass. I said, 'I don't know.' He asked me for the phone number and I said, 'I don't know the phone number.' He asked me if I had any grass and I said no. He said, 'Does Tommy have any grass,' and I said, 'Why ask me. If you want some ask him for yourself' and that was the extent of it right there and I hung up."
On cross-examination the prosecutor questioned Lyons extensively about his previous criminal record. At one point he asked Lyons whether he had ever smoked marijuana at Monsoor's residence or whether he knew anyone else who had done so. Lyons refused to answer these questions, citing the Fifth Amendment. The prosecutor then moved that Lyons' entire testimony be stricken, on the ground that Lyons was refusing to be cross-examined. The trial court granted the motion over the objection of Monsoor's counsel.
Monsoor's conviction was affirmed by the Supreme Court of Wisconsin, State v. Monsoor, 56 Wis. 2d 689, 203 N.W. 2d 20 (1973). The court held that "the trial court abused its discretion in striking the entire testimony of Robert Lyons",*fn3 but declined to reverse on the ground that the trial court's error was not such as to have "probably affected the result of the trial". Id. at 27.
Two questions are presented on this appeal: (1) whether the striking of Lyons' testimony denied Monsoor his right to have compulsory process for obtaining witnesses in violation of the Sixth and Fourteenth Amendments, and (2) if so, whether the constitutional error was harmless beyond a reasonable doubt.
In Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) the Court held that a state law which prevented a defendant from calling an accused accomplice as a witness was in violation of the Sixth Amendment. The district court recognized that Washington held that the constitutional right to compulsory process is applicable to the states under the Fourteenth Amendment, but reasoned that this right does not extend to the testimony of a witness and merely affords a defendant the right ...