Government of Virgin Islands v. Toto

Decision Date29 January 1976
Docket NumberNo. 75--1312,75--1312
Parties1 Fed. R. Evid. Serv. 200 GOVERNMENT OF the VIRGIN ISLANDS v. Schiller TOTO, Appellant.
CourtU.S. Court of Appeals — Third Circuit

George M. Alexis, Federal Public Defender, Charlotte Amalie, St. Thomas, V.I., for appellant.

Julio A. Brady, U.S. Atty., Ishmael A. Meyers, Asst. U.S. Atty., District of the Virgin Islands, Charlotte Amalie, St. Thomas, V.I., Frank W. Dunham, Jr., Asst. U.S. Atty., Eastern District of Virginia, for appellee.

Before ALDISERT, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Appellant Schiller Toto was convicted of distributing marihuana in violation of the Virgin Islands Controlled Substances Law, 19 V.I.C. § 604(a)(1). He testified at his trial and, in response to the prosecutor's questioning on cross-examination, admitted that he had previously pleaded guilty to the misdemeanor of petit larceny. Defense counsel timely objected. The government seeks to justify the questioning on the ground that the prior conviction was brought out to impeach appellant. In the alternative, it argues that any error was harmless because the trial judge charged the jury to disregard the testimony concerning the prior conviction. We hold that appellant's conviction for petit larceny does not come within the ambit of the rule, long established in this circuit, that a witness may be impeached by evidence of a prior conviction only if the conviction is for a felony or for a misdemeanor in the nature of crimen falsi. United States v. Evans, 398 F.2d 159, 164 (3d Cir. 1968); United States v. Montgomery, 126 F.2d 151, 155 (3d Cir.), cert. denied, 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754 (1942). We also hold that the error in allowing evidence of the prior conviction was not cured by the trial judge's charge, and requires that appellant's conviction be reversed. 1

The facts are neither complicated nor controverted. During appellant's testimony at the trial the following colloquy occurred:

Q. (The prosecutor:) Sir, you stated that at one time you lost your job at Sparky's when you were arrested.

A. (Appellant:) Yes.

Q. Now, are you referring to this arrest?

A. No.

Q. A previous arrest?

A. Yes.

Q. With respect to that arrest, sir, were you convicted of a crime?

MR. ALEXIS: Objection.

THE COURT: I overrule the objection. The witness may answer.

A. I plead guilty.

Q. And do you recall what you pleaded guilty to?

A. Petit larceny.

There was no further questioning on the point.

Following the close of testimony, the district judge discussed his proposed jury charge with counsel. It was not disputed that petit larceny, under Virgin Islands law, is a misdemeanor. 14 V.I.C. §§ 2, 1084. The government contended, however, that the petit larceny conviction was properly admitted on the theory that any conviction, felony or misdemeanor, involving moral turpitude was admissible to impeach a witness. The district judge disagreed and, in the body of his jury charge, specifically instructed the jury as follows:

(Appellant) testified that he entered a plea of guilty to the offense of petit larceny. Here I would think that the court erred in permitting that testimony because it serves absolutely no useful purpose in this trial. Counsel, I have to say was quite correct when he said it is as though those words had never been uttered. He is not on trial for petit larceny. The fact that he was convicted on his plea of guilty for petit larceny has no bearing on whether he is to be believed by you in this case or not, because the law says you may discredit the testimony of a witness by a showing that he has been convicted of a felony or a lesser crime, including falsehood or false statements. Petit larceny is just not that.

Petit larceny is the theft of personal property of a value less than a hundred dollars, so his conviction for that is not to be taken into consideration by you. Even had he been convicted of a felony, it would not render him incompetent as a witness. So you will kindly disregard totally testimony that he pleaded guilty to petit larceny. Under no circumstances should you consider that fact.

On appeal the government appears to concede that a conviction of petit larceny in the Virgin Islands does not come within the rubric of a misdemeanor in the nature of crimen falsi, and presents alternative contentions. First, it asks this court to depart from its traditional rule and to adopt the rule of those circuits 2 which are more liberal in the reception of impeachment evidence. Second, because the district court attempted to fashion a curative instruction, the government urges that the reception of the conviction evidence can be construed as harmless, and not reversible, error.

I.

The term crimen falsi has roots in the common law doctrine that persons convicted of certain kinds of crimes were disqualified from testifying. See Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (1885); 2 Wigmore, Evidence § 520 (3d ed. 1940). While the doctrine of testimonial disqualification has withered from our law, the term crimen falsi has retained vitality in the context of impeachment. The established law in this circuit is that a witness may be impeached by evidence of a prior conviction only if it is for (a) a felony or (b) a misdemeanor in the nature of crimen falsi. United States v. Gray, 468 F.2d 257, 262 (3d Cir. 1972); United States v. Remco, 388 F.2d 783, 785 (3d Cir. 1968). The specific contours of crimen falsi are uncertain. Crimen falsi describes crimes involving, or at least relating to, communicative, often verbal, dishonesty; we have said that they are 'crimes which touch the question of the honesty of the witness,' United States v. Evans, supra, at 164. For our purposes here, we have no difficulty in accepting the government's formulation of the concept: 'Although the term 'Crimen Falsi' has been subject to many definitions, the generally accepted scope of the term would be crimes that are in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense or any other offense the commission of which involves some element of deceitfulness, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.' Appellee's Brief at 4. Absent special circumstances, 3 and as the district court so aptly put it: 'Petit larceny is just not that.'

The question remains whether we ought to embrace the government's invitation to change the law of the circuit in favor of a more liberal impeachment standard. We decline to do so. In 1968 we were invited to broaden our rule and we rejected that invitation. United States v. Evans, supra. Today we reaffirm that rejection, for the reasons Judge Freedman articulated succinctly:

This is not the universal rule and many jurisdictions permit impeachment by showing conviction of a crime which is not a felony if it involves moral turpitude. . . . (W)e believe it undesirable to broaden the rule to allow merely generally discrediting evidence to be introduced as any indication of testimonial unreliability. Whatever residuary relevance a witness's conviction of some other violation of law may have on the question of his credibility is far out-weighed by the prejudicial effect of discrediting him for conduct which is extraneous to the proceeding. In the practical reality of a trial the use of such convictions to aid the jury in determining the honesty or trustworthiness of a witness is a device for the far greater advantage of dishonoring him.

Ibid. at 164--65.

We are further motivated to retain our traditional rule by Congress' adoption of a closely parallel formulation in Rule 609(a) of the recently enacted Federal Rules of Evidence:

(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 Report of the House and Senate Conferees discloses precisely what is meant by 'dishonesty or false statement':

By the phrase 'dishonesty and false statement' the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.

(quoted in K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 192 (1975)). Thus, it would appear the congressionally enacted Federal Rule tracks the substance of our long-standing practice.

The new Federal Rules of Evidence took effect on July 1, 1975; appellant's trial took place in March, 1975. The new rules, therefore, can have no literal application to this appeal. Nevertheless, the enactment of Rule 609(a) buttresses our conclusion that the law of this circuit with respect to impeachment by prior convictions is not unduly restrictive. Furthermore, because trials after July 1, 1975, will be governed by the new statutory rules, a judge-made change in the law at this time would be not only improvident, but also utterly futile.

This does not end our inquiry. We must now decide whether the district court's later instruction to the jury cured the earlier, improper reception of evidence of the prior petit larceny conviction.

II.

In United States v. Clarke, 343 F.2d 90 (3d Cir. 1965), the prosecutor elicited testimony that the defendant had participated in a crime unrelated to the offense for which he was being...

To continue reading

Request your trial
164 cases
  • Rugemer v. Rhea
    • United States
    • Oregon Court of Appeals
    • April 15, 1998
    ...hear such evidence: "A drop of ink cannot be removed from a glass of milk." Id. at 106, 806 P.2d 110 (quoting Government of Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir.1976)). Another reason to require a showing by a preponderance of the evidence that the other act occurred is that th......
  • U.S. v. Papia
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 19, 1977
    ...824, 827 (2d Cir. 1977), quoting United States v. Smith, 551 F.2d 348, 364 n.28 (D.C. Cir. 1976); accord Government of Virgin Islands v. Toto, 529 F.2d 278, 281 n.3 (3d Cir. 1976). Such a showing was made in the case at In the course of a conference between counsel and the court outside the......
  • U.S. v. Lipscomb, 81-1895
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 15, 1983
    ...v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977); Government of the Virgin Islands v. Toto, 529 F.2d 278, 281 n. 3 (3d Cir.1976) (applying pre-Rule 609 common law but noting that the Rule accords with existing Third Circuit practice); cf......
  • U.S. v. Grayson
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 11, 1986
    ...we must apply the "highly probable" standard of appellate review to determine the harmlessness of the error. Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.1976). "High probability" requires that the court have a "sure conviction that the error did not prejudice the defenda......
  • Request a trial to view additional results
2 books & journal articles
  • Brecht v. Abrahamson: harmful error in habeas corpus law.
    • United States
    • Journal of Criminal Law and Criminology Vol. 84 No. 4, January 1994
    • December 22, 1994
    ...that the error had no substantial effect (something like a "clear and convincing" standard), Government of Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir. 1976), to a standard forbidding reversal unless the petitioner proves a "reasonable probability" of substantial harm, United State......
  • Trial
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...integrity of the presumption of innocence. A drop of ink cannot be removed from a glass of milk.” Government of Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976). Here any introduction of evidence of F’s past crimes or “bad acts,” especially because they are similar in nature to the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT