Brown v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation119 US App. DC 203,338 F.2d 543
Docket NumberNo. 18487.,18487.
PartiesRonald R. BROWN, Appellant, v. UNITED STATES of America, Appellee.
Decision Date15 October 1964

Mr. Lawrence Speiser (appointed by the District Court), Washington, D. C., for appellant.

Mr. B. Michael Rauh, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, BURGER and WRIGHT, Circuit Judges.

BURGER, Circuit Judge.

Appellant was convicted of assault with intent to commit robbery under 22 D.C. CODE ANN. § 501 (1961), after the Juvenile Court waived jurisdiction pursuant to D.C.CODE ANN. § 11-914 (1961, Supp. II 1963). On appeal in forma pauperis he assigns numerous errors relating to his trial; we discuss in detail three of his contentions.

The testimony showed that one M. G. Hayes was accosted by two assailants at about 2:30 a. m., who knocked him down and took property from his person. His attackers fled when an Armed Services Police cruiser approached. The occupants of that car, two military police officers, witnessed the entire affray, gave chase and captured appellant. Their testimony constituted the bulk of the case for the Government. The only other witnesses for the prosecution were Metropolitan Police Officers. A Metropolitan Police Officer, who made the formal arrest, testified that at approximately 3:00 a. m. that morning he had assumed custody of appellant from the two military policemen; another officer testified on rebuttal as to certain statements made at the Juvenile Receiving Home by appellant and appellant's alleged companion, one Belton, who had turned himself in and was retained within the jurisdiction of the Juvenile Court. Belton testified for the defense that he alone had made the assault and gone through Hayes' pockets. Appellant's testimony in his own behalf was substantially to the same effect. The complainant, Hayes, was not produced by the Government, although personally served;1 a stipulation of his Grand Jury testimony was read to the trial jury.

(1)

The trial judge elected to conduct the voir dire examination of the jury pursuant to FED.R.CRIM.P. 24(a):

"The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper."

Appellant requested that the District Judge make the following query on voir dire: "Would you give greater credence to the testimony of a law enforcement officer merely because he is an officer as compared to any other witness." Although the trial court possesses a "broad discretion as to the questions to be asked" on voir dire, the exercise of that discretion is "subject to the essential demands of fairness." Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). In Sellers v. United States, this court held to be reversible error the District Court's failure to ask on voir dire, when requested, whether any juror would be "* * * inclined to give more weight to the testimony of a police officer merely because he is a police officer than any other witness * * *." (Emphasis added.) 106 U.S.App.D.C. 209, 210, 271 F.2d 475, 476 (1959) (per curiam). Accord, Chavez v. United States, 258 F.2d 816, 819 (10th Cir. 1958) (dictum), cert. denied sub nom. Tenorio v. United States, 359 U. S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577 (1959). Here, the District Court denied the almost identical requested question, relying on Gorin v. United States, 313 F. 2d 641, 646-47 (1st Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963). The Gorin case is, of course, not controlling in this jurisdiction and should not be followed by the District Court at the expense of our own holding in the Sellers case.2 In the present case, as in Sellers', "virtually the entire case for the prosecution" consisted of testimony from law enforcement officers. The circumstances of the Sellers case are very similar and compel reversal here; moreover, we do not read Sellers as having been narrowly decided.3 We construe that case as establishing that when important testimony is anticipated from certain categories of witnesses, whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination is not only appropriate but should be given if requested. Failure to make appropriate inquiry, when requested, does not necessarily require reversal; 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. In this case, at the opening of trial, the Government had announced that it would not be able to produce the complainant, who had left the jurisdiction, but would rely on the testimony of the two military police officers who had witnessed the assault and apprehended appellant. That the two Metropolitan Police Officers were also members of this police category serves only to emphasize the need for the requested inquiry to the panel.4 Responses to the requested query might have supplied defense counsel, or indeed the prosecutor, with relevant and useful information for exercising peremptory challenges or challenges for cause. We hold that under the Sellers case failure to inquire of the jury panel as requested regarding possible predilections concerning police testimony was reversible error in this case. We emphasize that independent of the scope of the requested query, the phrasing of the court's inquiry should include whether any juror would tend to give either more or less credence because of the occupation or category of the prospective witness.

Since we remand for a new trial, we shall treat certain other of appellant's contentions raising important questions which are likely to arise on retrial.

(2)

When appellant's juvenile companion, Belton, testified, the prosecutor on cross-examination asked him where he was then residing. Defense counsel twice made timely and pointed objection to this question and the probable response, claiming at the bench that the answer would be "The National Training School" where appellant had been committed for complicity in another charge. The question was allowed and the predicted answer was forthcoming. The prosecutor then asked: "For what particular crime? Was it for this crime?"; Belton replied, "No, sir."

The Government contends that this line of questioning was proper to lay a foundation for cross-examination of Belton on his opportunity to discuss the case with appellant and fabricate testimony. This argument suffers from two basic falacies. First, the testimony relevant to this argument was brought forth subsequently when Belton admitted that he and appellant had been together at the Receiving Home, not the National Training School, where Belton had been placed only one day prior to testifying. We assume that the prosecutor was unaware of this fact and that his attempt to lay a foundation of opportunity for collusion was in good faith; nevertheless it was his responsbility to appraise the possible prejudice of the predicted answer before asking a question otherwise probably inadmissible. Secondly, while in Juvenile Court custody pending decision on waiver of jurisdiction, appellant would have been detained on this charge only at the Receiving Home, a place of "temporary detention" provided by the Commissioners of the District of Columbia under the supervision of the Department of Public Welfare.5 A juvenile would be committed to the National Training School for Boys, which is under the aegis of the Director of the Bureau of Prisons, acting for the Attorney General,6 only after a Juvenile Court finding of involvement in a charged offense.7 Accordingly, the prosecutor's purported purpose of demonstrating opportunity for collusion between appellant and his juvenile companion at the National Training School was impossible of realization in this case; appellant could not have been there on this charge. Thus, the question as to where Belton was then residing elicited information irrelevant even on its purported justification.8

The Government does not contend that the inquiry was permissible on impeachment grounds; it was not. Although conviction of certain criminal offenses is a valid subject of examination aimed toward impeachment of a witness,9 a finding of involvement in law violation resulting in commitment to the National Training School is not the equivalent of a criminal conviction on any theory. Thomas v. United States, 74 App.D.C. 167, 169-171, 121 F.2d 905, 907-909 (1941) (alternative ground).10 The District of Columbia Code11 only makes provision for impeachment upon showing "conviction of crime."12 Indeed, the prosecutor's question to Belton characterized the occasion for his commitment to the National Training School as "for a crime." The very form of the question ignored both the intent of the statute on impeachment and the essential nature and purpose of the Juvenile Court Act. Because of the purpose of the Juvenile Court Act and the absence of procedural safeguards, a finding of involvement against a juvenile does not have the same tendency to demonstrate his unreliability as does a criminal conviction for the adult offender.13

Moreover, the juvenile himself has a protected interest in maintaining the credibility of his public testimony. Whereas a convict — barring pardon — is forever faced with...

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