Hood v. United States

Decision Date30 June 1966
Docket Number19651.,No. 19650,19650
Citation125 US App. DC 16,365 F.2d 949
PartiesSamuel H. HOOD, Appellant, v. UNITED STATES of America, Appellee. Harry A. JACKSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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 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 beginning of the discretionary process, not its end. And where, as here, the defense treats it as the latter, we are without warrant in the record for setting the trial judge's determination at naught. There was not in this instance what could be regarded as a meaningful invocation of judicial discretion; and we are not disposed in such case to find abuse. Compare Walker v. United States, 124 U.S.App.D.C. ___, 363 F.2d 681, decided June 9, 1966.

II

The case for the defense of both appellants consisted of one alibi witness who testified that appellants were at his apartment on the evening in question and had left at approximately 7:10 or 7:15. The crime for which appellants were on trial was the armed robbery of a retail store within three blocks of the witness's apartment; and eye witnesses of this robbery had testified that it had happened between 7:00 and 7:30. Accordingly, at this point in the alibi testimony the prosecutor approached the bench to announce that he was going to cross-examine on the circumstances under which appellants had been at the apartment, and that he expected to elicit the fact that they had been engaged in holding up the witness. The defense objected to this line of cross-examination, but the court ruled that the questions could be asked. When asked, the questions got responses to the effect that appellants had robbed the witness at gunpoint and had left running. A police officer subsequently testified that the radio call on this incident had been received at 7:15.

We see no...

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