Hood v. United States, No. 19650

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: McGOWAN, TAMM and LEVENTHAL, Circuit
• Citation: 125 US App. DC 16,365 F.2d 949
• Parties: Samuel H. HOOD, Appellant, v. UNITED STATES of America, Appellee. Harry A. JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: 19651.,No. 19650
• Decision Date: 30 June 1966

125 US App. DC 16, 365 F.2d 949 (1966)

Samuel H. HOOD, Appellant,
v.
UNITED STATES of America, Appellee.
Harry A. JACKSON, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 19650, 19651.

United States Court of Appeals District of Columbia Circuit.

Argued June 10, 1966.

Decided June 30, 1966.

Petition for Rehearing Denied October 13, 1966.

365 F.2d 950

Mr. Julian P. Freret, Washington, D. C. (appointed by this court), for appellants.

Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Richard M. Coleman, Asst. U. S. Attys., were on the brief, for appellee.

Before McGOWAN, TAMM and LEVENTHAL, Circuit Judges.

Petition for Rehearing En Banc in No. 19650 Denied October 13, 1966.

McGOWAN, Circuit Judge.

On these appeals from a jury conviction of robbery, two alleged errors in the course of the trial itself are advanced as requiring reversal.¹ One has to do with the failure of the trial court to direct the Government that it could not use a conviction to impeach appellant Hood. The other derives from the failure to restrict the cross-examination of appellant's alibi witness. We affirm because we do not believe reversal is necessitated by either, or both together.

I

At the close of the Government's case, defense counsel approached the bench to report that appellant Hood had earlier been convicted of a felony in the District Court after being waived from the Juvenile Court. Counsel then requested the court to rule on whether, if Hood took the witness stand, the Government would be permitted to bring out this prior conviction. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). The court ruled that it could come in for impeaching purposes as contemplated in 14 D.C.Code § 305 (Supp. V, 1966). Hood did not testify; and it is now urged

365 F.2d 951

upon us that this circumstance was unduly prejudicial to both Hood and Jackson

No representation was made to the trial court as to what Hood's testimony would be, or why it was important that, at least in this case, the court's discretion should be exercised to prohibit introduction of the prior conviction. Indeed, the court was not even told the nature of the crime for which Hood had previously been convicted.² Defense counsel simply asked for a ruling and referred to Luck. On this kind of a record, we are not prepared to find that there has been an abuse by the trial court of the discretion which we have held to be reposed in it. If Luck made anything clear, it was that the defense is ill-advised to content itself simply with citing Luck. That case establishes only that Congress, in legislating to the effect that prior convictions may be used to impeach, left some room for the play of judicial discretion over the unfolding circumstances of the immediate trial. The alert and experienced trial judge presiding over a criminal case has a grasp of how the interests of justice are best served in the case taking shape before him. He may conclude that the defendant's story should be heard by the jury; and Luck gives him some flexibility in this regard. But Luck is the...