Dixon v. United States

• Decision Date: 31 January 1972
• Docket Number: No. 5829.,5829.
• Citation: 287 A.2d 89
• Parties: Alvin J. DIXON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

287 A.2d 89

Alvin J. DIXON, Appellant, v. UNITED STATES, Appellee.

No. 5829.

District of Columbia Court of Appeals.

Argued October 12, 1971.

Decided January 31, 1972.

Rehearing and Rehearing En Banc Denied February 18, 1972.

Harvey L. Zuckman, Washington, D. C., appointed by this court, for appellant.

John A. McCahill, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and Robert P. Watkins Asst. U. S. Attys., were appellee.

Before HOOD, Chief Judge, and KERN and REILLY, Associate Judges.

KERN, Associate Judge:

At issue in this appeal is the constitutionality of the statute enacted by Congress for the purpose of circumscribing in this jurisdiction the so-called "Luck" rule.¹ (The pertinent portions of the statute, both prior to and after amendment, are set forth in the Appendix).

The facts of this case can be stated briefly. A construction company security officer testified for the Government that he saw appellant remove a drill from the back of his company's truck. After the security officer hailed him, appellant kept the drill and began to run. During the chase, which ended with appellant in the clutches of a police officer (who was the only other prosecution witness), appellant dropped the drill. In defense, appellant testified that he was at the construction site looking for a job and someone, whom he had never seen before but thought was a workman, directed him to go over and pick up the drill and bring it back. As he was doing so, appellant claimed that the security officer shouted at him and that he became frightened and ran. The security officer took the stand in rebuttal and stated that he saw no such workman as testified to by appellant. The jury, 15 minutes after it had retired, returned a verdict of guilty of grand larceny² and appellant was committed for three to nine years pursuant to 18 U.S.C. § 4253 (The Narcotic Addict Rehabilitation Act) (1970).

While appellant was on the witness stand, the Government was allowed by the trial court to introduce a petit larceny conviction which he had incurred five years earlier. The prior conviction was introduced after a bench conference in which appellant's trial attorney³ merely inquired as to the applicability of the new standards of D.C. Code 1967, § 14-305 (Stipp. IV, 1971, as amended) which were effective when this trial took place. Appellant's trial attorney did not request an immediate cautionary instruction to the jury concerning the Government's use of the prior conviction and the trial judge refrained from instructing the jury on this matter until both sides had finished presenting their cases. In the general charge, the jury was instructed, among other things, that it must consider appellant's prior petit larceny conviction only as it showed whether he was telling the truth at trial and not whether he had committed the crime for which he was charged.⁴

Appellant assails his judgment of conviction with a brace of arguments: (A) The amended statute under which his credibility was impeached by a prior conviction is unconstitutional; (B) even if the statute, as amended, is constitutional, the application of that statute to appellant's case violates the ex post facto clause of the Constitution; (C) the trial court committed reversible error by failing to give an immediate cautionary instruction sua sponte, following the introduction of appellant's prior conviction during his cross-examination; and, (D) the evidence concerning the value of the drill was insufficient for a jury to find beyond a reasonable doubt that the said value exceeded $100 (the minimum amount for grand larceny).

1.

At the outset, we take cognizance of the proposition that an appellate court has discretion to decline to consider constitutional questions raised for the first time on appeal, as is true of this case, and we note that the United States Court of Appeals for the District of Columbia Circuit has declined on several occasions to review the constitutionality of the statute in question, prior to its recent amendment, e. g. Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269 (1969), cert. denied, 395 U.S. 927, 89 S.Ct 1785, 23 L.Ed.2d 245 (1969); Trimble v. United States, 125 U.S.App.D.C. 173, 369 F.2d 950 (1966). Nevertheless, the constitutional issue has been carefully and clearly ventilated by the parties to this appeal and is a recurring problem for the trial court.⁵ On balance we are persuaded that we should face up to and decide the constitutional issue vigorously argued to us in this case.

Appellant contends that the introduction of his prior petit larceny conviction under D.C.Code 1967, § 14-305 (Supp. IV, 1971), as amended,⁶ at his trial on the grand larceny charge denied him due process of law and a trial by impartial jury in violation of his fifth and sixth amendment rights because it created the very real danger that the jury relied upon the impeaching material rather than the evidence adduced to find him guilty.

Appellant's argument relies heavily upon a series of decisions by our Circuit Court which questioned the ability of juries in criminal trials to differentiate between the issues of impeachability and guilt and which sought to lay down guidelines under the predecessor of the statute in question that might alleviate undue prejudice resulting from the introduction of prior convictions for impeachment purposes. See Blakney v. United States, 130 U.S.App.D.C. 87, 89, 397 F.2d 648, 650 (1968) (concurring opinion per McGowan, J.); Barber v. United States, 129 U.S.App.D.C. 193, 195, 392 F.2d 517, 519 (1968); Gordon v. United States, 127 U.S.App.D.C. 343, 347, 383 F.2d 936, 940 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968); Brown v. United States, 125 U.S.App.D.C. 220, 222, 370 F.2d 242, 244 (1966); Pinkney v. United States, 124 U.S.App.D.C. 209, 211, 363 F.2d 696, 698 (1966).

In particular, the decision in Weaver v. United States, supra, implied that, notwithstanding appropriate limiting instructions, the introduction of prior convictions for purposes of impeachment may be violative of defendants' fifth amendment rights to due process. We also take note of commentators who have questioned the balance between the probative value of such evidence for impeachment and its potential for prejudice.⁷

Nevertheless, appellant has presented no cases in this or any other jurisdiction, and we have found none, which specifically find that due process is denied in criminal trials solely because a defendant who has taken the witness stand is impeached by the introduction of a valid prior conviction.⁸ On the contrary, our reading of recent federal and state cases indicates quite clearly that the tradition of utilizing evidence of valid prior convictions for purposes of impeachment is in no manner being considered as violative of due process, e. g., McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Spencer v. Texas, 385 U.S. 554, 560-564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Wilson v. Wiman, 386 F.2d 968, 970 (6th Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed. 2d 303 (1968); State v. Hawthorne, 49 N. J. 130, 228 A.2d 682 (1967). Compare United States v. Tucker, 404 U.S. ___, 92 S.Ct. 589, 30 L.Ed.2d 592 (No. 70-86, decided Jan. 11, 1972); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). As the majority state in Spencer v. Texas, supra 385 U.S. at 561, 87 S.Ct. at 652,⁹ "the conceded possibility of prejudice is believed to be outweighed by the validity of the State's purpose in permitting introduction of the evidence."

Therefore, assuming proper instructions concerning the jury's consideration of such evidence are given (discussed infra), we conclude in accordance with the overwhelming majority of American jurisdictions that the potential for prejudice is outweighed by the probative value of prior convictions as it relates to credibility.

Appellant's reliance on Chief Justice Taft's famous statement in Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927)¹⁰ is misplaced. In Tumey's long and colorful history as a leading case of judicial disqualification,¹¹ we have found no case which has even suggested that evidence of prior convictions for the purposes of impeachment offers the type of "temptation" to juries to forget the burden of proof in a criminal case about which Chief Justice Taft was concerned.

Likewise, we do not find appellant's references to Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971) and Estes v. Texas, 381 U.S. 532, 543, 565, 85 S.Ct. 1628, 14 L.Ed.2d 543 (concurring opinion by Warren, C. J.) (1965), both of which involved situations where pre-trial publicity seriously endangered the right to trial by an impartial jury, to be persuasive. See also United States v. Smith, 200 F.Supp. 885 (Vermont 1962). Valid prior convictions introduced for purposes of impeachment during a criminal defendant's cross-examination, coupled with appropriate instructions to the jury, have never been considered to be, and we do not now consider them to be, the means of creating partiality on the part of the jury toward the Government's case in violation of the sixth amendment rights of the defendant.

Given the presumption of constitutionality which attaches to Acts of Congress, United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561, rehearing denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d 13 (1963); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, rehearing denied, 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77 (1960), we hold that appellant has not demonstrated that Section 14-305, as amended is inherently prejudicial to his fifth and sixth amendment rights to a fair trial by an impartial jury.

2.

Appellant's alternative contention is that even if the fifth and sixth amendments do not prohibit outright the use of all prior convictions...