Hale v. United States

• Decision Date: 23 July 1976
• Docket Number: No. 8900.,8900.
• Citation: 361 A.2d 212
• Parties: William G. HALE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 212

361 A.2d 212

William G. HALE, Appellant, v. UNITED STATES, Appellee.

No. 8900.

District of Columbia Court of Appeals.

Argued Jan. 6, 1976.

Decided July 23, 1976.

Frederick J. Sullivan, Washington, D. C., appointed by this court, for appellant.

John L. Kern, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and Peter A. Chapin, Asst. U. S. Attys., were on the brief, for appellee. Jason D. Kogan, Asst. U. S. Atty., Washington, D.C., also entered an appearance for appellee.

Before KELLY, FICKLING and KERN, Associate Judges.

FICKLING, Associate Judge:

Appellant was convicted after a jury trial of assault with a dangerous weapon (D.C.Code 1973, § 22-502) and carrying a pistol without a license (D.C.Code 1973, § 22-3204). This appeal raises five alleged errors which appellant argues require reversal of his conviction: (1) impeachment of appellant on cross-examination with a robbery conviction which had been reversed on appeal, (2) the prosecutor's reference in his summation to appellant's convictions for "various crimes," (3) the trial court's rendition of the missing witness instruction, (4) the trial court's refusal to instruct on self-defense, and (5) selection of a new jury from the same panel as the original jury after a mistrial had been declared. We affirm.

Appellant's first trial began on June 24, 1974. After a jury had been sworn, but before the first witness was called, a mistrial was declared. A new jury was selected from the same panel as the original jury, and appellant was retried on June 24 and 25.

At his second trial, appellant took the stand and denied that he had shot the complainant. He testified that his girl friend, Brenda Johnson, had committed the offense. Although Ms. Johnson had testified before the grand jury, she did not testify at trial. On cross-examination, appellant was impeached with evidence of prior convictions for robbery (D.C.Code 1973, § 22-2901) and possession of narcotics (D.C.Code 1973, § 33-402), despite the fact that appellant's robbery conviction had been reversed.¹ The prosecutor referred in closing argument to the fact that appellant had been convicted of "various crimes" in arguing that appellant's testimony could not be believed.

At the end of closing argument, the trial court granted the prosecutor's request for a missing witness instruction as to Ms. Johnson, but refused to instruct the jury on self-defense as requested by appellant, because there was no evidence to support appellant's theory of self-defense.

Appellant initially contends that the trial court committed reversible error in denying his motion for a mistrial based upon appellant's impeachment with a prior robbery conviction which had been reversed on appeal. D.C.Code 1973, § 14-305, authorizes the use of prior convictions for purposes of impeachment. Subsection (d) provides:

The pendency of an appeal from a conviction does not render evidence of that conviction inadmissible under this section. Evidence of the pendency of such an appeal is admissible.

It is appellant's position that the appeal from his prior conviction for robbery was not pending within the meaning of § 14-305(d), since the decision of the United States Court of Appeals reversing his robbery conviction had been issued, although the mandate vacating the judgment of conviction had not been issued to the trial court.

Prior to the enactment of § 14-305(d) pursuant to the District of Columbia Court Reform and Criminal Procedure Act of 1970,² the District of Columbia Circuit, construing § 14-305, prohibited impeachment of a witness with a prior conviction if the time for appeal had not expired or if the appeal from his prior conviction was still pending. Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124 (1958); Beasley v. United States, 94 U.S.App.D.C. 406, 218 F.2d 366 (1954), cert. denied, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243 (1955); Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949); cf. United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973) (en banc).

[I]t seems to us wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later reversed, the defendant has suffered, unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction. . . . [Campbell v. United States, supra, 85 U.S.App.D.C. at 135, 176 F.2d at 47.] Accordingly, prior to amendment of the statute, a witness could be impeached only by a "final" conviction.

Other circuits adopted a contrary position favoring admission of evidence of a prior conviction for impeachment purposes, notwithstanding the fact that an appeal was pending from the conviction.³ United States v. Cisneros, 491 F.2d 1068 (5th Cir. 1974); United States v. Allen, 457 F.2d 1361 (9th Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 195, 34 L.Ed.2d 119 (1972); United States v. Escobedo, 430 F.2d 14 (7th Cir. 1970), cert. denied, 402 U.S. 951, 91 S.Ct. 1632, 29 L.Ed.2d 122 (1971). The rule was based upon the premise that the conviction extinguished the presumption of innocence and that the judgment of conviction constituted a final determination until such time as it was set aside. Thus, in United States v. Empire Packing Co., 174 F.2d 16 (7th Cir.), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949), the court held that impeachment of a witness with a prior conviction is permissible as long as the conviction is then pending and undecided. In so ruling, the court said:

Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding said conviction solely for the purpose of testing credibility. [Id. at 20.]

This passage strongly suggests that after the conviction has been reversed, it cannot thereafter be used for purposes of impeachment. Moreover, the foregoing cases permit impeachment with a prior conviction pending appeal only "unless and until" the conviction is subsequently reversed on appeal. The logical implication of these cases is that evidence of a prior conviction is not admissible where the conviction has already been reversed. See United States v. Williams, 484 F.2d 428 (8th Cir. 1973).

The legislative history of the Court Reform Act does not disclose the purpose of the amendment, but it seems likely that § 14-305(d) was enacted specifically to abolish the requirement that a witness could be impeached only by a "final" conviction. Although the amended statute allows impeachment with a prior conviction during the pendency of an appeal, it seems unlikely that Congress intended to allow impeachment with a prior conviction which has already been reversed.

The majority of state courts which have considered this issue have held that the pendency of an appeal does not preclude the use of a prior conviction for impeachment purposes, even where the conviction was later reversed on appeal. See 16 A.L.R.3d 726 (1967); cf. State v. Kiser, 111 Ariz. 316, 529 P.2d 215 (1974); State v. Murray, 12 Wash.App. 328, 529 P.2d 1152 (1974). Contra, Adkins v. Commonwealth, 309 S.W.2d 165 (Ky.Ct.App. 1958); State v. Blevins, 425 S.W.2d 155 (Mo.1968); State v. Blue, 129 N.J.Super. 8, 322 A.2d 174 (1974). Courts which allow impeachment by a prior conviction pending appeal allow such impeachment only while the conviction is pending and undecided. A conviction which has been reversed at the time of trial may not be introduced for purposes of impeachment. See Suggs v. State, 6 Md.App. 231, 250 A.2d 670 (1969); cf. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); People v. Miller, 27 Ill.App.3d 788, 327 N.E.2d 253 (1975); State v. Blevins, supra; State v. Hill, 83 Wash.2d 558, 520 P.2d 618 (1974). The court in State v. Blevins, supra, stated:

It seems perfectly clear that if an appellate court reverses a conviction outright, or reverses and remands the case for a new trial, the original conviction is wiped out and after the date of the appellate decision may not be shown for impeachment purposes. . . .

[Id. at 158; emphasis supplied.]

While we recognize that the "pendency" of an appeal from a prior conviction will not render evidence of that conviction inadmissible for impeachment purposes, we hold that an appeal is not pending within the meaning of § 14-305(d) if the decision of the appellate court reversing the conviction has been published. It would be fundamentally unfair to permit the use of such prior conviction for purposes of impeachment simply because the mandate vacating the conviction had not been issued. The entry of the order vacating the conviction requires nothing more than a ministerial act, which does not go to the merits of the case.⁴ The possibility that the decision of the Court of Appeals might have been overturned is not a good reason for allowing appellant to be impeached by a prior conviction which had already been reversed. The evidence of appellant's prior conviction for robbery should have been excluded.

Although the trial court erred in admitting evidence of appellant's robbery conviction for purposes of impeachment, the error was unquestionably harmless since the evidence of appellant's guilt was overwhelming⁵ and since appellant was also impeached with a prior narcotics conviction (which was properly before the jury). See Drummond v. United States, 350 F.2d 983 (8th Cir. 1965); Edwards v. United States, 333 F.2d 588 (8th Cir. 1964).⁶

Appellant next challenges the trial court's instructions to the jury, arguing that the missing witness instruction was improper because the witness Johnson was not peculiarly within the power of appellant to produce. Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893). Since the witness was present at the alleged assault, her testimony clearly could have elucidated the transaction, and ...