432 F.2d 1330 (D.C. Cir. 1970), 22919, United States v. Bussey

Docket Nº:22919.
Citation:432 F.2d 1330
Party Name:UNITED STATES of America v. Allen S. BUSSEY, Appellant.
Case Date:July 21, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1330

432 F.2d 1330 (D.C. Cir. 1970)

UNITED STATES of America

v.

Allen S. BUSSEY, Appellant.

No. 22919.

United States Court of Appeals, District of Columbia Circuit.

July 21, 1970

         Argued April 17, 1970.

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          Mr. G. William Hammer, Falls Church, Va. (appointed by this Court) for appellant.

         Mr. John Ellsworth Stein, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee.

         Before BAZELON, Chief Judge, and WRIGHT, Circuit Judge, and MATTHEWS, [a1] Senior District Judge.

         

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         BAZELON, Chief Judge:

         Appellant challenges his convictions 1 for robbing the Edison Sewing Machine Company at 2626 Bladensburg Road, N.E., at 4:20 p.m. on February 23, 1968; he contends that the jury should not have been permitted to hear evidence which indicated that he had also robbed the General Transmission Company, 2912 Bladensburg Road, N.E., at 4 o'clock that afternoon. Bussey did not take the stand himself, but his girlfriend testified that he was with her at her house in Southeast Washington from 12:30 p.m. to 8:30 p.m., except for the period from approximately 3:20 to 3:50, when he went out to buy a sandwich and some medicine. The Government attempted to discredit this alibi evidence by presenting, over defense objections, two witnesses to the General Transmission holdup, who testified to the details of the robbery and identified Bussey as one of the perpetrators. At this time, a newspaper article recounting the two robberies was also read to the jury. 2 This newspaper clipping had been identified during the Government's case-in-chief as having been found on Bussey when he was arrested on February 26, 1968.

         I.

         Prior to trial, the prosecution moved to consolidate the trials for the two robberies, under F.R. Crim.P. 8. Bussey opposed this motion, arguing that prejudice would arise from the jury's tendency to cumulate the evidence from the various offenses and to infer a criminal disposition on Bussey's part. He also pointed to the 'less tangible, but perhaps equally persuasive, element of prejudice * * * in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one.' Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964). Accordingly, the District Court denied the Government's motion to consolidate.

         As we observed in Drew, 'the same dangers appear to exist' when evidence of one crime is admitted at trial for another offense as 'when two crimes are joined for trial.' 3 Yet in the present case the evidence which had been excluded by one district judge's refusal to permit joinder was allowed in by another judge at appellant's trial. Furthermore, admitting this evidence runs up against the 'general rule * * * that, upon the trial of an accused person, evidence of another offense, wholly independent of the one charged, is inadmissible.' Bracey v. United States, 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). 4 The Government contends, however, that the evidence was properly admitted under exceptions to that rule, because it proved 'identity' and because the two crimes were 'so nearly identical in method as to earmark

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them as the handiwork of the accused.' 5

         As we have recently recognized in a related area, the trial court in exercising its discretion over the admission of evidence must 'weigh the probative value of the convictions * * * against the degree of prejudice which the revelation of * * * past crimes would cause.' 6 The large 'potential for prejudice' which we detected in the admission of evidence of prior convictions is exceeded in inflammatory impact by the 'other crimes' evidence of the sort involved here. In the Luck-Gordon situation, the jurors are asked to doubt a defendant's veracity on the basis of the simple documentary record of a prior conviction for which he has already 'paid his debt to society,' while in the present situation, they were presented with the full details of a criminal act for which the defendant had not yet been convicted or punished. 7 The temptation to punish him for both crimes was undoubtedly very great. Accordingly, we must decide whether the probative value of the evidence in question was sufficient to outweigh the likelihood that it would cause the jury to draw the 'improper inference' that appellant had a 'disposition to commit crime.' 8

         II.

         A. The testimony of the General Transmission witnesses did not evince a particular pattern to the two robberies which would mark them as distinctly the 'handiwork' of the same men. The facts common to the two robberies 9 do not distinguish them from any number which have come before this court recently, and for which persons other than appellant have been convicted. 10 The conduct of the robbers was certainly not 'so unusual and distinctive as to be like a signature.' 11 Nor was this evidence probative of 'identity' as that concept has traditionally been employed. The fact that the witnesses identified appellant as a participant in the General Transmission holdup fell short of showing 'former conduct of his, known to be the conduct of the perpetrator' 12 of the Edison robbery. 13

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This evidence did, however, place Bussey at the General Transmission Company at a time when his alibi witness said he was home with her. As such, it was admissible as rebuttal to her testimony. Bracey v. United States, supra. But the direct examination of the General Transmission witnesses was not 'presented with scrupulous care to avoid any intimation to the jury that appellant had engaged in another robbery minutes before the one in issue.' Hood v. United States, 125 U.S.App.D.C. 16, 18, 365 F.2d 949, 951 (1966). Rather than limiting the witnesses to testimony rebutting the alibi, the prosecutor invited them to 'tell us (the court and jury) the details' of the General Transmission holdup. 14 The admission of this evidence was error; its probative value on the relevant point was insufficient to outweigh its inflammatory effect on the jury. While the other evidence of appellant's guilt is strong, it cannot be said 'that the error did not influence the jury.' 15 The jurors might have substantially disbelieved the Edison witnesses and still have returned their guilty verdict on the basis of the General Transmission witnesses' testimony. Consequently, we conclude that allowing this testimony into evidence was prejudicial error. 16

         Moreover, no instruction was given at the time this testimony was admitted, to caution the jurors on the limited purpose for which it was being received, and it blinks reality to think that on the basis of the instruction given as part of the charge-in-chief 17 the jury was capable of the 'mental gymnastic' 18

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of disregarding this evidence in 'any respect' except as to the one purpose permitted by the trial court. The 'hazard' that the jury will ignore even 'concededly clear' limiting instructions leaves the situation 'the same as if there had been no instruction at all.' Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). 19 Thus the prejudice to appellant in the admission of evidence of the other alleged offense was not cured.

         It is unfortunate that this prejudice occurred, for it was unnecessary; the prosecution had a strong case without the evidence of the other holdup, and the rebuttal testimony itself could easily have been kept within proper bounds. Had defense counsel attempted on cross-examination to cast doubt on the witnesses' recollection that Bussey was in the auto shop at 4 o'clock, an opportunity might have arisen for them to explain the reasons they definitely remembered that he was there. 20 To introduce this testimony, the prosecutor should have requested, at the bench, that the trial court rule whether the other crimes evidence was 'necessary' and therefore admissible despite its inflammatory content. 21 Since the evidence in this case was on an alleged crime which had not been reduced to a final judgment, the court should also have conducted an initial inquiry, out of the jury's presence, 22 to determine that the defendant was connected with the other crime by 'clear and convincing evidence,' before allowing the jury to hear the details of the General Transmission holdup. 23

         B. The newspaper article found on appellant after he was arrested was headed 'Two Firms Robbed in Five Minutes.' The text of the article conveyed the impression that the robberies had been committed by the same two men, 'along with a third man' at the second robbery. In other words, the admission of the newspaper clipping posed the same dangers as the testimony of the General Transmission witnesses, in that it introduced evidence of one crime into the trial of another. But the clipping suffered from the added liability that nothing it related actually substantiated the inference that the same men had perpetrated both holdups; no descriptions were given of the robbers themselves or of their conduct which would show 'identity' or similar 'handiwork.' 24 Moreover,

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if taken as proof of what it described, the article would clearly have been inadmissible as hearsay.

         The trial court attempted to avoid this problem by telling the jury not to rely on the article 'for the truth of the statements contained therein.' It is apparent, in fact, that the real value to the prosecution in this evidence was based on the inference that someone who possesses a clipping describing a crime is the person who committed that crime. Such an inference is certainly not unreasonable; innocuous noncriminal conduct may sometimes give rise...

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