Davis v. United States

• Citation: 133 US App. DC 167,409 F.2d 453
• Decision Date: 18 February 1969
• Docket Number: 21779,22101.,No. 21723,21723
• Parties: Gregory A. DAVIS, Appellant, v. UNITED STATES of America, Appellee. Leroy JOHNSON, Appellant, v. UNITED STATES of America, Appellee. Alphonzo M. BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

133 US App. DC 167, 409 F.2d 453 (1969)

Gregory A. DAVIS, Appellant, v. UNITED STATES of America, Appellee.

Leroy JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

Alphonzo M. BROWN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21723, 21779, 22101.

United States Court of Appeals District of Columbia Circuit.

Argued November 1, 1968.

Decided February 18, 1969.

Petition for Rehearing Denied March 17, 1969.

Mr. Harry E. Wood, Washington, D. C. (appointed by this court) for appellant in No. 21,723.

Mr. Stephen S. Millstein, Washington, D. C. (appointed by this court) for appellant in No. 22,101, also argued for appellant in No. 21,779. Mr. Jay S. Weiss, entered an appearance for appellant in No. 22,101.

Messrs. James S. Gardiner and John J. Baker, Washington D. C. (both appointed by this court) were on the brief for appellant in No. 21,779.

Mr. Robert S. Bennett, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Miss Carol Garfiel, Asst. U. S. Attys., were on the brief, for appellee.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

The principal question raised on this appeal of three defendants jointly tried and convicted under a single-count indictment charging robbery,¹ is the trial court's ruling limiting defense counsel on the use of the complainant's record of prior convictions for impeachment purpose. We find no reversible error and affirm.

1. The background facts are developed in the testimony of Samuel Lee Evans, the victim and sole eyewitness. On Saturday, January 14, 1967, after leaving work and having a couple of beers, he walked up Seventh Street, N.W., Washington, D. C., some time past midnight. While walking in the 1500 block he "passed" a laundromat and "saw four fellows * * * standing in the window." He "glanced at them"² and "started to move." One of the four men, identified as Johnson, came out and asked "Where did Joe go?" Immediately thereafter, apparently, complainant was assaulted by a second man, identified as Davis,³ and then robbed. Brown was also subsequently identified as one of the group.

Some days later Evans saw appellants at a neighborhood bar.⁴ While he was sitting there Johnson and Davis, accompanied by Brown, walked in. They approached Evans and offered to sell him a coat. On the pretext of calling his wife to obtain the money Evans went and telephoned the police.

The sequence of events leading up to the arrest of appellants is somewhat unclear. Evans testified that "when the police came they appellants ran out and went down the street." Detective Jenkins, the plainclothesman who responded to Evans' call, arrived at the bar around 6:45 p. m. He testified that he observed appellants Davis and Brown "walking at a fast pace in the Seventh, the 1500 block." Detective Jenkins "got out of the automobile south of them while Detective Monaco pulled the cruiser up in front of them." When Detective Jenkins called Brown and Davis back, Evans made a positive identification. Within a few seconds defendant Johnson approached and inquired as to what was going on. Evans identified Johnson, and all three appellants were placed under arrest.

The three defendants each sought to establish an alibi defense. Counsel for Davis called Leola Jackson, whose daughter had "been going" with Davis at the time in question. Mrs. Jackson testified that Davis had come to her home on the evening of the 14th and left early Sunday morning around 4:00 or 5:00 a. m.⁵ Her account was corroborated by her daughter. Appellant Davis also took the stand on his own behalf and denied involvement in the robbery.

The other defendants' presentations paralleled in pertinent essentials Davis's defense. Defendant Brown, like Davis, took the stand and denied participation in the crime, and counsel for both Brown and Johnson produced alibi witnesses in behalf of their respective defendants.

To buttress the impeachment on cross-examination of the credibility of these alibi witnesses,⁶ the prosecutor recalled Detective Jenkins, who testified, over objection, that after their arrests appellants Brown and Johnson made phone calls to persons (Dolores Brown and Sandra Foster), who turned out to be their respective alibi witnesses. The prosecution sought to establish the inference that Brown and Johnson had alerted Mrs. Brown and Miss Foster to the need for an alibi.⁷

2. We now focus on appellants' efforts to impeach the credibility of Evans by reference to his prior criminal record. The background facts related above highlight the character of the trial as essentially a credibility contest. Under the circumstances it was crucial that both parties be afforded every reasonable opportunity to adduce at trial evidence pertinent to the credibility of the witnesses. However, the prerogative of impeachment is subject to limitation by the trial judge in the exercise of his discretion. "The question * * * is whether rejection of appellants' * * * efforts to impeach the credibility of Evans did not withhold from the jury information necessary to a discriminating appraisal of his trustworthiness to the prejudice of appellants' substantial rights." Gordon v. United States, 344 U.S. 414, 417, 73 S.Ct. 369, 372, 97 L.Ed. 447 (1953).

The record is somewhat unclear as to the precise details of Evans' prior record. Apparently between 1953 and 1966, he had been seven times convicted of major offenses.⁸

The trial judge permitted defense counsel to inquire into three of Evans' convictions: for attempted robbery, 1954; burglary, 1956; and auto theft, 1959. He excluded inquiry concerning Evans' convictions for assault, 1953; felonious assault, 1961; and assault, 1966, and also excluded inquiry as to the conviction for rape, 1963. It appears that the trial judge accepted the Government's view that the point at issue is governed by the doctrine of Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

3. There is little doubt that the ruling, if made as to impeachment of a defendant witness, would be sustained as within the ambit of the judge's discretion.⁹ The rulings excluding impeachment by reference to assault and rape and permitting impeachment by reference to auto theft, robbery and burglary, fall within the guidelines developed as a "rule of thumb" in Gordon v. United States,¹⁰ 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968).

Appellants' basic point is that different considerations are applicable where the witness is the complainant rather than the defendant, and that the trial judge erred in failing to take these differences into account. While there are some differences in the considerations applicable to the two types of witnesses, and in an appropriate case they may properly lead the trial judge to exercise his discretion so as to provide differences in his rulings, we do not think the differences suggest an abuse of discretion in the case at bar.

The similarities, indeed, loom larger in legal impact than the differences. Both defendant-witnesses and other witnesses are governed by the same statute so far as impeachment by conviction is concerned, see 14 D.C.Code § 305. This statute has been authoritatively interpreted in Luck to mean that prior criminal convictions are not to be automatically received into evidence for purposes of impeachment, and may be excluded by the trial judge in the exercise of his discretion:

The statute * * * leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. 121 U.S.App.D.C. at 156, 348 F.2d at 768.

The ruling establishing a discretion in the trial judge is applicable to all witnesses.

We have pointed out that the sound exercise of discretion should take into account the kind of conviction offered as impeachment, and that a distinction is to be drawn between acts reflecting on honesty as contrasted with acts of violence, which may result from a combative nature, etc., having little direct bearing on honesty and veracity. Gordon v. United States, supra, 127 U.S. App.D.C. at 347, 383 F.2d at 940. Those considerations are fully applicable to all witnesses.

There is some difference between witnesses in regard to the risk to which they may be exposed. A defendant-witness runs the risk that evidence offered by way of impeachment will be used by the jury to a material extent as the basis for conviction, notwithstanding reasonable doubt as to responsibility in the case at bar, because of the human temptation to shut away a "bad man."

While that precise risk is not present where impeachment is offered against the complainant, there is the distinct possibility that the jury will acquit a man plainly guilty of crime because of their distaste for the victim. They may, for example, conclude that an established rapist is not one to complain of a street corner affray, or even robbery. The jury system that provides the sense of justice of the community may also at times inject unwelcome and unpredictable peccadillo, and even prejudice. Rules of law, however, must seek to further what the courts discern as enduring values in the administration of criminal justice. One of these, surely, is the community interest in convicting those guilty of crime, even though the particular conviction is odious for some reason.

There is a more subtle consideration involved. At a time when crime besets the inner cities where many residents have, unhappily, some criminal record, we are increasingly concerned that too many offenses go unreported, and that police protection should be increased rather than diminished in these areas. These people, too, must be assured that they have a stake in our society, and that they can achieve justice by application to the law and its guardians. Yet the rule urged by appellants with its invitation to a confusion of values would tend to go contrary to our...