Government of Virgin Islands v. Grant, 84-3422

• Decision Date: 17 October 1985
• Docket Number: No. 84-3422,84-3422
• Citation: 775 F.2d 508
• Parties: , 19 Fed. R. Evid. Serv. 620 GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Sheldon GRANT, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 508

775 F.2d 508

54 USLW 2278, 19 Fed. R. Evid. Serv. 620

GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Sheldon GRANT, Appellant.

No. 84-3422.

United States Court of Appeals Third Circuit.

Argued April 22, 1985.

Decided Oct. 17, 1985.

Linda D. Hopkins (argued), Asst. Atty. Gen., Christiansted, St. Croix, V.I., for appellee.

Lolita d'Jones (argued), Christiansted, St. Croix, V.I., for appellant.

Before ADAMS, GARTH and EDWARD R. BECKER, Circuit Judges.

OPINION OF THE COURT

EDWARD R. BECKER, Circuit Judge.

This is an appeal from a judgment of the District Court of the Virgin Islands affirming a judgment of conviction by the Territorial Court of the Virgin Islands against appellant Sheldon Grant on charges of assault in the third degree, V.I.Code Ann. tit. 14, Sec. 297(2) (1971), and possession of a dangerous weapon during a crime of violence, id. Sec. 2251(a)(2)(B) (1974). The appeal presents two interesting questions concerning the law of character evidence, more specifically: (1) whether testimony that a defendant has never been arrested or charged with a crime is admissible as character evidence and entitles the defendant to a good character charge; and (2) whether evidence of a lack of prior arrests is admissible on any other grounds. ¹ The appeal also raises two significant points concerning the sentencing authority of Virgin Islands courts. For the reasons that follow, we will affirm the conviction.

I.

On October 10, 1982, Sheldon Grant was employed as a cook at the Binnacle Bar and Restaurant located in the Caravelle Hotel in Christiansted, St. Croix. He reported to work sometime before 7:00 a.m. to prepare for the morning's breakfast. Grant was the first employee to arrive and, because there had been incidents involving missing bar goods, he waited for a waitress to appear so that the two of them could enter the restaurant together. When it became apparent that the waitress was going to be late, however, Grant used his key and entered the restaurant alone.

There is no dispute that at approximately 7:00 a.m., a confrontation took place between Grant and Franklin Parris, the prosecuting witness. Parris, the government's principal witness, claimed that he sought entry to the restaurant to have breakfast, but that Grant cursed at him and refused to let him in whereupon the argument grew more intense, with both parties exchanging obscenities. Parris testified that while he (Parris) remained outside, Grant went to the kitchen and obtained a butcher knife, exited the restaurant, and, after a struggle, stabbed him with the knife in the left leg.

Grant's version of the incident was very different. He testified that Parris arrived at the restaurant door and started to bang on it while cursing at Grant. Grant stated that, feeling threatened, he attempted to lock Parris out of the restaurant but that Parris, a much larger man, prevented him from doing so. According to Grant, there was no means of escape (the rear door was locked and Grant did not have a key), so he ran to the kitchen area, picked up a knife, and ran back to the door. Grant testified that Parris then forced his way into the restaurant, lunged at Grant, and that they "rumbled about," but that, as he was trying to escape the fracas, both he and Parris sustained injuries from the knife.

The case thus resolved essentially into a credibility dispute between the complainant and defendant. After a two-day trial, the case was submitted to the jury, which found Grant guilty on both counts.

II.

The most difficult question on appeal arises out of an incident during trial when Grant, whose only character witness was unavailable, ² attempted to testify that he had never been arrested or charged with a crime. Grant also asserted that such testimony would support a good character charge. The Territorial Court held that the proffered testimony was not proper character evidence and that, in any event, only a third party can testify to a defendant's good character (by evidence of opinion or reputation). ³ The Territorial Court therefore excluded the testimony and refused to charge the jury that evidence of good character is circumstantial evidence that could weigh in favor of an acquittal. The district court, reviewing the case on appeal pursuant to V.I.Code Ann. tit. 4, Sec. 33 (1972), affirmed.

Grant's attempt to obtain a good character charge in the manner described raises the issues we have described above. We consider them seriatim.

A.

Evidence of a person's character is generally not admissible to prove that he acted in conformity therewith on a particular occasion. Fed.R.Evid. 404(a). One exception to this rule is that, in a criminal case, an accused may introduce evidence of his own good character in order to suggest the inference that someone with good character would not have committed the crime with which the accused is charged. Fed.R.Evid. 404(a)(1).

The methods by which character evidence may be introduced are prescribed by Fed.R.Evid. 405. Section (a) of this rule, applicable where character is used circumstantially to prove another fact (here, the ultimate fact of innocence), provides:

Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. ⁴

The first question before us is whether testimony that an accused has never been arrested is an acceptable method for proving character under Fed.R.Evid. 405(a) and, consequently, whether this kind of testimony entitles the defendant to a good character charge. As indicated in part I.A., Rule 405(a), which applies when character is being used as circumstantial evidence of some other fact, allows proof of character solely by means of reputation or opinion testimony and prohibits by implication, inquiry into specific instances of conduct. This is in contrast to Rule 405(b) which clearly permits it. See supra, n. 3. Professors Wright and Graham succinctly state the rationale for the approach in Rule 405(a):

The common law rules [upon which Rule 405 is based] were justified in terms of fairness and efficiency. While specific instances of conduct were recognized as the most reliable proof of character, the costs of proving a sufficient number of instances in terms of court time, potential prejudice to a party, and possible confusion of the jury were thought to be too high where character was being used only as circumstantial evidence of conduct.

Wright & Graham Sec. 5262 at 567. ⁵

Some commentators argue that the prohibition against the introduction of specific instances of conduct should not apply to an accused's attempt to prove his good character, inasmuch as a major reason for the prohibition--the potential for unfair prejudice to the accused that would result from having to rebut evidence regarding multiple instances of bad conduct--is not implicated in this situation. See J.H. Wigmore, 1 Evidence in Trials at Common Law Sec. 195 (3d ed. 1940); J. Weinstein & M. Berger, 2 Weinstein's Evidence p 405 (1982) (hereinafter "Weinstein"); see also State v. Braddy, 254 Ga. 366, 330 S.E.2d 338, 340 (1985) (plurality of the court would make an exception to the rule that specific instances of conduct may not be introduced to prove character where such evidence is introduced through the defendant's own testimony). There is no disagreement among the commentators, however, that Rule 405(a) does not accommodate this policy by making an exception for accused persons seeking to prove their good character by specific acts. See, e.g., Weinstein p 405.

The literal language of Fed.R.Evid. 405(a) does not specifically address the situation in the present case, because the evidence proffered by Grant was of the absence of specific instances of conduct, i.e., evidence of bad conduct that would have resulted in his arrest. Professors Wright and Graham imply that testimony as to the absence of specific acts is akin to reputation evidence and argue that it should be admissible under Rule 405(a). They offer the example of an accused who calls the minister of his church to testify that the accused had been the church treasurer for twenty years, during which time the church never lost a penny. Professors Wright and Graham conclude that there is little reason to exclude testimony of this kind because it is probative of character, involves no prejudice, and takes little time to elicit. Wright and Graham Sec. 5266, at 595-98. ⁶

On the other hand, testimony as to the lack of prior bad acts is, in essence, testimony as to multiple instances of good conduct, and its admission would appear to violate a strict reading of Rule 405(a). In addition, this kind of testimony is generally less probative of good character than general reputation or opinion evidence, for one's good reputation presumably reflects not only the absence of specific bad acts, but also one's good acts and general public conduct. Indeed, testimony that one has never been arrested is especially weak character evidence; a clever criminal, after all, may never be caught. Cf. Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948) ("Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness.")

Moreover, inasmuch as the Federal Rules of Evidence provide a clear method of proving character, we see no reason to stretch them to make testimony as to absence of an arrest record sufficient to trigger a character charge. On the contrary, there is good reason to adhere to a more literal reading of the rule. Evidence sufficient to invoke a character evidence charge presumably would be sufficient to open the door to rebuttal evidence by the prosecutor. Thus, in addition to restricting defendant's use of conduct evidence, close...