Diggs v. Lyons, 83-1803

Citation741 F.2d 577
Decision Date14 May 1984
Docket NumberNo. 83-1803,83-1803
Parties16 Fed. R. Evid. Serv. 1 Charles DIGGS, Marvon Merritt, William Stovall and Leroy Edney v. Superintendent Edmond LYONS, Warden David Owens Deputy Warden Daughn, Sergeant Dunlevey, Correction Officers Wiley, Marlowe, Upshur, Vasquez, Bozack, Widdop and all unknown correctional officers. Appeal of Charles DIGGS, William Stovall and Leroy Edney. . Submitted Under Third Circuit Rule 12(6)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Charles Diggs, pro se.

William Stovall, pro se.

Leroy Edney, pro se.

Thomas F. Crawford, Barbara W. Mather, City Sol. of Philadelphia, Barbara R. Axelrod, Deputy City Sol., Ralph J. Luongo, Asst. City Sol., Philadelphia, Pa., for appellees.

Before GIBBONS, GARTH and MARIS, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

The plaintiffs, Charles Diggs, Marvin Merritt, William Stovall and Leroy Edney, brought suit in the district court under 42 U.S.C. Sec. 1983 alleging unconstitutional use of excessive force by the defendants in preventing their escape from Holmesburg county prison in Philadelphia and denial of access to legal assistance. At the close of the plaintiffs' case the trial judge directed a verdict in favor of all the defendants on the access to legal assistance claim and in favor of defendants Lyons, Owens and Daughn on the excessive use of force claim. The trial then proceeded and at the close the jury returned a verdict in favor of the remaining defendants on the excessive use of force claim. Plaintiffs Diggs, Stovall and Edney then made a timely motion for judgment n.o.v. or for a new trial. The motion was denied by the district court and the three plaintiffs filed a notice of appeal from that denial within five days thereafter.

Our court has jurisdiction of the appeal. While technically it was taken from the denial of plaintiffs' motion for judgment n.o.v. and a new trial, the plaintiffs' motion was timely filed after the entry of the original judgment and the notice of appeal was timely filed after the denial of that motion. We therefore consider the appeal as taken from the final judgment. Jackman v. Military Publications, Inc., 350 F.2d 383 (3d Cir.1965). Two of the appellants, Stovall and Edney, have failed, however, to file briefs or otherwise prosecute the appeal and the appellees' motion to dismiss the appeal as to them will be granted. Appellant Diggs, however, has prosecuted the appeal and we accordingly proceed to consider its merits.

Appellant Diggs argues that there was insufficient evidence to support the verdict and that it was therefore error for the trial judge to deny him judgment n.o.v. Our review of the evidence satisfies us, however, that it was sufficient to support the verdict and that judgment n.o.v. was properly denied. Appellant Diggs also urges that the trial judge committed errors which require a new trial and that the court therefore committed error in denying his motion to that end. One of the alleged errors was as to the trial judge's instruction to the jury as to the amount of force a correctional officer may use to prevent a prisoner's escape from custody. As to this we need only say that we have considered the instruction and are satisfied that, taken as a whole, it correctly stated the law.

There remains for consideration appellant Diggs' other alleged ground for a new trial. This is that the trial judge erred in admitting evidence of plaintiff's prior criminal convictions for impeachment purposes. Over objection by Diggs' counsel, the trial judge permitted counsel for the defendants to prove on cross-examination of him that he had been convicted within 10 years from the date of trial of the crimes of murder (two convictions), bank robbery, attempted prison escape and criminal conspiracy. In so doing the trial judge relied on Rule 609(a) of the Federal Rules of Evidence which he held to require the admission on the issue of credibility of evidence of convictions of felonies (crimes punishable by death or imprisonment in excess of one year) suffered by the witness within 10 years prior to trial. The trial judge held that the only exception to the mandatory nature of the rule, the balancing or weighing test which it contains, relates only to evidence which might be prejudicial to the defendant and therefore did not apply to evidence of prior crimes by a plaintiff witness. Moreover, the trial judge held that Rule 403 of the Federal Rules of Evidence, which permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, was not applicable since it was not designed to override specific rules, such as Rule 609, but rather to provide a guide for handling situations for which no specific rules have been formulated. Finally, the trial judge stated at trial and reiterated in the opinion of the district court denying a new trial that he would have admitted the evidence, even if possessed of the discretion to exclude it, because of its relevance to credibility, which was very important in the case, and because of the lesser prejudice to the plaintiffs arising from the fact that the jury knew they were incarcerated.

The appellant argues that the district court erred in construing Rule 609(a) as mandatorily requiring the admission of evidence of his prior felony convictions. We proceed, therefore, to consider the legislative history of Rule 609(a) in order to determine its nature and intended effect. Rule 609(a) as it was enacted by the Congress 1 is as follows:

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

The rule was the result of a long process of formulation. As originally drafted by the Advisory Committee on Rules of Evidence of the Judicial Conference of the United States, it provided:

For the purpose of attacking the credibility of a witness evidence that he has been convicted of a crime is admissible, but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted [commonly referred to as felonies] or (2) involved dishonesty or false statement regardless of the punishment [commonly referred to as crimen falsi]. 2

The Advisory Committee noted that the rule had been drawn in accordance with the congressional policy embodied in the congressional amendment of Sec. 14-305 of the District of Columbia Code made by the Act of July 29, 1970, P.L. 91-358, 84 Stat. 473. That act had followed the weight of traditional authority which allowed the use of felonies generally without regard to the nature of the particular offense and of crimen falsi without regard to the grade of the offense. It is thus quite clear that Rule 609(a) as originally formulated, adopted by the Supreme Court and submitted to the Congress was fully mandatory and left no area of discretion to the trial judge.

In the Congress diverging views developed. There were three schools of thought. (1) That evidence of all felonies and crimen falsi should be admitted without any weighing procedure. This was what had recently been enacted by the Congress for the District of Columbia. It represented the plan embodied in the rule as submitted to the Congress by the Supreme Court and it was urged in the House by Representative Hogan 3 and in the Senate by Senator McClellan. 4 (2) That evidence of crimen falsi should be freely admissible but that the weighing procedure should be applied in the case of felonies other than crimen falsi. This point of view was advanced by Representative Smith in the House. 5 It was adopted by the House subcommittee 6 but rejected by the House Judiciary Committee 6 and the House. 7 (3) That evidence of crimen falsi alone should be admissible. This view was advanced by Representative Dennis 8 and the House Judiciary Committee 6 and was the version adopted by the House which voted down positions (1) and (2). 7

When the rule came to the Senate, the Judiciary Committee proposed a compromise. 9 With respect to defendants, only convictions of crimen falsi might be used. With respect to other witnesses, convictions of felonies might also be used subject to the balancing test. On the floor of the Senate Senator McClellan offered an amendment 4 providing for admission of all felonies and crimen falsi with no balancing test, in effect, the version originally prepared by the Advisory Committee and forwarded by the Supreme Court. Senator McClellan's amendment was adopted by the Senate. 10 Thus, the Conference Committee of the two houses was presented with a House draft permitting only crimen falsi to be admitted and a Senate draft which made all felonies freely admissible in addition to crimen falsi.

The present form of Rule 609(a) is the compromise between the two houses proposed by the Conference Committee. Its effect was to accept the McClellan amendment which the Senate had adopted, with the modification that the weighing test be applied to the admission of felonies but only with respect to the "prejudicial effect to the defendant". In their report the conferees on the part of the House stated:

With regard to the discretionary standard established by paragraph (1) of rule 609(a), the Conference determined that the prejudicial effect to be weighed against the probative value of the conviction is specifically the prejudicial...

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  • US v. Gatto
    • United States
    • U.S. District Court — District of New Jersey
    • September 4, 1990
    ...Mazzola's conviction for armed robbery and conspiracy to commit armed robbery, however, are not crimen falsi. See Diggs v. Lyons, 741 F.2d 577, 581 (3d Cir.1984) (admissibility of robbery conviction considered under Rule 609(a)(1)), cert. denied, 471 U.S. 1078, 105 S.Ct. 2157, 85 L.Ed.2d 51......
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    ...evidence. The Court of Appeals summarily affirmed the District Court's uling, following Circuit precedent established in Diggs v. Lyons, 741 F.2d 577. Diggs held, inter alia, that Rule 609(a)(1) of the Federal Rules of Evidence—which specifies that evidence that a witness has been convicted......
  • Donald v. Wilson
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    • U.S. Court of Appeals — Sixth Circuit
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    ...judge has no discretion under that rule to exclude prior felony convictions when offered to impeach a plaintiff. See Diggs v. Lyons, 741 F.2d 577 (3d Cir.1984). See also Garnett v. Kepner, 541 F.Supp. 241, 245 (M.D.Pa.1982). In reaching that result, the Third Circuit relied on the plain lan......
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    • United States
    • US Code Federal Rules of Evidence Article VI. Witnesses
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