398 F.2d 159 (3rd Cir. 1968), 16751, United States v. Evans

Docket Nº:16751.
Citation:398 F.2d 159
Party Name:UNITED STATES of America v. Paul Calvin EVANS, Anthony Walter Andrzejewski, and Charles Joseph Harriston, Paul Calvin Evans, Appellant.
Case Date:June 27, 1968
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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398 F.2d 159 (3rd Cir. 1968)



Paul Calvin EVANS, Anthony Walter Andrzejewski, and Charles Joseph Harriston, Paul Calvin Evans, Appellant.

No. 16751.

United States Court of Appeals, Third Circuit.

June 27, 1968

Argued Feb. 20, 1968.

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Michael A. Querques, Querques & Isles, Orange, N.J. (Harvey Weissbard, Orange, N.J., on the brief), for appellant.

Wilbur H. Mathesius, Asst. U.S. Atty., Newark, N.J. (David M. Satz, Jr., U.S. Atty., Newark, N.J., on the brief), for appellee.

Before KALODNER, FREEDMAN and VAN DUSEN, Circuit Judges.


FREEDMAN, Circuit Judge.

Defendant, Evans, appeals from his conviction and sentence under 18 U.S.C.§ 659 of theft from an interstate shipment.

Evans was indicted with two others, Andrzejewski and Harriston. Harriston pleaded guilty before trial. Evans and Andrzejewski were tried twice. The jury was unable to agree at their first trial and on retrial both were found guilty and sentenced to imprisonment. Evans alone has appealed.

Evans argues that the trial court committed plain error which requires reversal notwithstanding counsel's failure to object when the judge charged the jury that 'Ordinarily, it is assumed that a witness will speak the truth. * * *'

We have recently condemned a jury instruction that a witness is 'presumed' to speak the truth, because it derogates from the jury's right to determine the credibility of witnesses and in a criminal case conflicts with the presumption of the defendant's innocence. United States v. Meisch, 370 F.2d 768, 773-774 (3 Cir. 1966); United States v. Johnson, 371 F.2d 800, 804-805 (3 Cir. 1967).

The present case differs from Meisch and Johnson in a number of respects. In the first place, although the charge in the

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three cases was taken from a form book, the draftsmen altered the recommended charge, and it is the altered form which appears here for the first time. In Meisch and Johnson the charge was that a witness was 'presumed' to speak the truth, whereas here 'presumed' has been changed to 'assumed' and is prefaced with 'ordinarily'. 1

We condemned as undesirable the charge in Meisch and Johnson not because it established a presumption in the technical legal sense, but rather because there was a substantial likelihood that it might mislead a jury of laymen. Their responsibility to determine the credibility of the witnesses was not to begin artificially at some initial starting point after an assumption or presumption 2 that the witnesses spoke the truth, but by a general application to the testimony of their everyday worldly knowledge regarding its inherent credibility and the effect of the witnesses' interest and demeanor as they observed it in the courtroom. See Government of the Virgin Islands v. Aquino, 378 F.2d 540, 548 (3 Cir. 1967). 3 We conclude therefore that substantially the same charge using an assumption rather than a presumption of the truthfulness of a witness is equally undesirable in a criminal case where it conflicts with the presumption of the defendant's innocence. The adverbial addition of 'Ordinarily' does not effectually diminish the pervasiveness of the error. Nor is the error in such a charge overcome by a general discussion of the role of the jury in determining credibility or by an explanation of some of the factors which are relevant in determining credibility. The harm is not the product of what the charge says after it establishes the foundation of an original assumption or presumption, but lies in the creation of such a foundation in the first place. It is of course possible that a charge may so fully instruct the jury on the manner in which they are to determine the credibility of witnesses that the error in establishing this foundation might thereby be overcome, 4 but this is not accomplished by a charge which deals in generalities and fails to focus the jury's attention on the individual elements of the testimony of individual witnesses.

In the present case the trial judge correctly told the jury that they were the sole judges of the credibility of the witnesses, that each defendant was presumed to be innocent and that the government

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had the burden of establishing his guilt beyond a reasonable doubt. After reviewing briefly the testimony of the witnesses for the government the judge took up the witnesses for the defense. He mentioned the claim of Evans and Andrzejewski that they had not even been present at the freight terminal where the theft occurred and recalled that Patricia El Badihy had testified as an alibi witness for Evans. At this point the judge charged the jury that credibility was the 'great issue' which the jury faced and that he would therefore go into it somewhat further. He then read from the form book of Mathes and Devitt 5 as follows:

'You as jurors are the sole judges of the credibility of the witnesses, of the weight their testimony deserves. Ordinarily, it is assumed that a witness will speak the truth, but this assumption may be dispelled by the appearance and conduct of the witness or by the manner in which the witness testifies or by the character of the testimony given or by evidence to the contrary of the testimony given.

'You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified and every matter in evidence which tends to indicate whether a witness is worthy of belief. Consider each witness's intelligence, motives and state of mind and demeanor and manner while on the stand. Consider, also, any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict and the extent to which, if at all, each witness was either supported or contradicted by other evidence in the case.'

The generalities which follow the assertion of the existence of an assumption of truthfulness are so broadly stated that they add virtually nothing to the common sense knowledge which jurors already possess. They cannot be said, therefore, to dissipate the charge that consideration of the question of credibility ordinarily begins with an assumption of the truthfulness of testimony of the witnesses.

The error here therefore is in effect the same as that in Meisch and Johnson. Unlike Meisch and Johnson, however, the two defendants here testified on their own behalf and called witnesses to support their defense. Again, unlike Johnson, the defendants made no objection to the charge at trial. 6 There is, of course, a significant difference in the effect of a charge that an assumption or presumption of the truthfulness of witnesses exists if the defendant offered no testimony, for then the assumption or presumption runs exclusively in favor of the prosecution and is entirely in collision with the presumption of the defendant's innocence. If the defendant himself takes the stand and calls other witnesses on his behalf, however, it may in some cases appear that such a charge is of greater benefit to the defense than to the government, which may have called but a few witnesses or have relied largely on documentary evidence. It is therefore less clear in the present case that the error condemned in Johnson and Meisch is so substantial as to require reversal in the absence of an exception at trial.

The problem presented to us, however, is complicated by other errors at trial which add to the effect which the erroneous charge may have had on the jury. These deal with the judge's charge regarding the testimony of the accomplice, Harriston, and the admission of evidence that Evans' alibi witness, Patricia El Badihy, had earlier been convicted of crime.

At the time of the trial Harriston, who had pleaded guilty, was awaiting sentence.

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he was an accomplice who as Judge Coffin said in McMillen v. United States, 386 F.2d 29, 36 (1 Cir. 1967), had not 'paid (his) price to society' nor was he 'free from carrot or stick.' He was the principal government witness against Evans and it was he alone who placed Evans at the scene of the crime. He had a powerful inducement to seek the favor of the prosecution when he testified, since he had not yet been sentenced. His credibility was a matter of the utmost importance to the defendants. Yet when the jury deliberated they had no special instruction admonishing them to consider his testimony with great caution. 7 Instead they had the general instruction that ordinarily a witness is assumed to speak the truth.

An examination of the record reveals that defendants' counsel had originally requested a charge which in effect would have stated that Harriston's testimony should be given 'very careful scrutiny.' The court refused the request and granted an exception. 8 Subsequently the court offered to give a similar charge, but defendant's counsel retreated and said that he was satisfied with the charge already given. At the court's insistence it was made clear that the defendants personally agreed. 9

The conduct of counsel here amounts to an abandonment of the objection to the court's failure to charge that the jury should scrutinize carefully the testimony of the accomplice, Harriston, but the colloquy makes it clear that counsel's action resulted from his belief that the manner in which the charge would be given would open the question whether the jury should find that Harriston was in fact an accomplice.

Whatever the reason for the abandonment of the request for charge regarding the testimony of an accomplice, the absence of such an instruction allowed the effect of the erroneous

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charge that a witness is assumed to speak the truth to apply to the testimony of the accomplice. The jury, therefore, had a right to believe that in the...

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