409 F.2d 453 (D.C. Cir. 1969), 21723, Davis v. United States

Docket Nº:21723, 21779, 22101.
Citation:409 F.2d 453
Party Name: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.
Case Date:February 18, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 453

409 F.2d 453 (D.C. Cir. 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.

February 18, 1969

Argued Nov. 1, 1968.

Page 454

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

Page 455

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...

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