Awkard v. United States

• Citation: 352 F.2d 641
• Decision Date: 03 June 1965
• Docket Number: No. 18723.,18723.
• Parties: Irene A. AWKARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

352 F.2d 641 (1965)

Irene A. AWKARD, Appellant, v. UNITED STATES of America, Appellee.

No. 18723.

United States Court of Appeals District of Columbia Circuit.

Argued November 5, 1964.

Decided June 3, 1965.

Miss Diana K. Powell, Washington, D. C., for appellant.

Mr. Henry H. Jones, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Miss Barbara A. Lindemann, Asst. U. S. Attys., were on the brief, submitted on the brief for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

WASHINGTON, Circuit Judge.

Appellant was convicted of simple assault and assault with intent to kill. The facts were disputed, but there was clearly sufficient evidence for the jury to convict.

Although the trial judge conducted the trial with great caution, we think error was committed requiring reversal. As a part of her defense, appellant put on two character witnesses to testify to her good reputation.¹ The prosecuting attorney, on cross-examination, asked both of them whether they had heard of appellant's two previous arrests for assault with a dangerous weapon and her conviction for disorderly conduct.² This jurisdiction apparently has endorsed the general rule that the prosecutor can in some circumstances inquire on cross-examination whether a defendant's character witness "has heard" of defendant's prior arrests or convictions.³ Such cross-examination is not admitted to establish that such events took place, but only to test the foundations and reliability of the witness' testimony.⁴ It is, in general, inadmissible to establish the defendant's bad character or his propensity to commit the crime charged, and the defendant is entitled to a limiting instruction. Nonetheless, the risks of undue prejudice to the defendant are great;⁵ and the inadequacy of a cautionary instruction to protect the interests of the defendant is obvious. Michelson v. United States, 335 U.S. at 484-485, 69 S.Ct. at 222-223. Cf. Jones and Campbell v. United States, 119 U.S. App.D.C. 213, 214, 215 n. 4, 338 F.2d 553, 554-555 n. 4 (1964); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

The use of such evidence must be closely supervised by the trial judge, not only to assay the prosecuting attorney's good faith but to consider whether the probative value of the information which might be elicited outweighs the prejudice to the defendant. The Supreme Court's Michelson decision, while it sustained the practice of cross-examining character witnesses on the defendant's prior arrests, stressed the need for the exercise of judicial discretion in deciding whether to permit this line of cross-examination. "Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse." 335 U.S. at 480, 69 S.Ct. at 221.⁶ Yet the rules as formulated in this jurisdiction⁷ might appear to suggest that the judge's role is a mechanical one: if the defendant puts on a character witness, the prosecutor may ask if the witness has heard of defendant's prior arrests or convictions, without a further exercise of judicial discretion. The supposed automatic operation of the rule is suggested by the metaphorical statement that the defendant "has opened the door." But the Supreme Court has made it clear that even though the defendant has opened the door, the trial judge is to decide what passes through. Cf. Luck v. United States, 121 U.S.App.D.C. ___, 348 F.2d 763 (1965).

In the light of these principles, the trial judge in the instant litigation clearly erred in permitting the prosecuting attorney to cross-examine defendant's character witnesses on appellant's prior arrests and conviction. It is unclear whether the trial judge knew that it is within his discretion to exclude this line of questioning.⁸ The information about the prior arrests came in during the cross-examination of defendant's first character witness, Reverend Norman Kelly. The witness testified on direct that defendant had been a member of his church choir, and that her reputation for peace and good order in Spencerville, Maryland, about fifteen miles from the District, had been good. Cross-examination brought out that Reverend Kelly knew defendant when "she was just a kid," and that she had left Spencerville about three years previously. He knew nothing about her reputation in Washington, where she had lived since leaving Spencerville. The defendant's arrests and conviction had all taken place after she left Reverend Kelly's community. With these facts established, defense counsel asked for a bench conference and "questioned the admissibility" of the prior conviction and arrests. The judge ruled that this line of questioning was proper.⁹ The information elicited was highly prejudicial; the character witness' testimony was weak to begin with since it went to an earlier period and a different community; it had already been impeached and could be impeached further without reference to the prior arrests. Indeed, the prosecuting attorney could have had the character testimony stricken since it did not relate to defendant's reputation in the community in which she lived or worked at the time of the alleged crime. Lomax v. United States, supra, 37 App.D.C. at 417-418. Under these circumstances, the trial judge abused his discretion in permitting cross-examination on defendant's prior arrests and conviction.

The cross-examination of defendant's other character witness, Delores Thomason, her former supervisor, was also improper. On direct examination, Miss Thomason testified that she did not know defendant's reputation in the community for peacefulness and good order, the character traits relevant to the crime charged. The prosecuting attorney could have objected at this point and had her testimony excluded. See Morris v. District of Columbia, supra.¹⁰ Miss Thomason testified only that she had "never had any complaints about Irene's appellant's behavior or any complaints about her work." On cross-examination, the prosecuting attorney immediately established that the witness knew nothing about appellant after 1961. Despite this fact the prosecuting attorney asked whether the witness had heard of appellant's arrests in 1963 and 1964 for assault with a dangerous weapon and her conviction for disorderly conduct in 1962. Her ignorance of these post-1961 events could not have impeached her testimony; her repeated assertions that she knew nothing about the defendant since 1961 precluded any likelihood that she would know of arrests subsequent to that year. This line of questions could not be thought to test the accuracy, reliability, or credibility of the testimony; it served only to prejudice the defendant by the introduction of past offenses.¹¹

Intimations of past crimes, especially crimes similar to the crime charged, are extremely damaging to an accused. Merely putting the question, even if the witness has no knowledge of the events adverted to, creates in the minds of the jurors the impression that the events had occurred.¹² Cautionary instructions, copiously provided by the trial judge in this case, do not give the accused adequate protection. They cannot prevent the jury from considering prior actions in deciding whether appellant has committed the crime charged. The courts need not rest on the assumption that juries can compartmentalize their minds and hear things for one purpose and not for another. The Supreme Court took the lead in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), by going behind the historic assumptions of the law of evidence and considering the psychological reality of the jury's functioning, in that case as it related to its consideration of the voluntariness of confessions.¹³

The use of this mode of impeachment must be closely supervised and cautiously limited. In the instant case the cited questions were clearly improper; their effect was highly prejudicial, and they did not fulfill the only purpose for which such cross-examination is admitted. The use of cross-examination of a character witness to show defendant's prior arrests has been much criticized but widely practiced. We do not reverse this long practice at this time. We do, however, urge the trial judges to confine the use of such cross-examination to those situations in which it is highly relevant to establish a character witness' reliability; and even in those situations, to exercise their discretion and exclude the cross-examination where prejudice outweighs probative value.¹⁴

In the light of these principles, the trial judge in the instant case clearly abused his discretion in permitting the prosecuting attorney to cross-examine defendant's character witnesses on appellant's prior arrests. The case is therefore

Reversed.

1 McCORMICK EVIDENCE § 158 (1954). In this jurisdiction the reputation subject to proof is supposed to be defendant's good reputation for the trait of character involved in the offense charged. Morris v. District of Columbia, 75 U.S. App.D.C. 82, 124 F.2d 284 (1941). The reputation to be proved should be the defendant's reputation in the community in which he lives at the time of the alleged crime or shortly preceding that time. Lomax v. United States, 37 App. D.C. 414, 418 (1911).

2 Appellant had been arrested in 1963 and 1964 for assault with a deadly weapon. Both arrests grew out of domestic quarrels, upon complaint of her husband. The "conviction" was a forfeiture of collateral, also arising from a domestic quarrel.

3 The precise scope for cross-examination on these matters is unclear. See Sacks v. United States, 41 App.D.C. 34 (1913); Clark v. United States, 57 App. D.C. 335, 23 F.2d 756 (1927) (matters raised on cross-examination must "bear reference to the nature of the charge against" the defendant); Stewart v. United States, 70 App.D.C. 101, 104 F.2d 234 (1939) "the...