Jackson v. United States

• Decision Date: 04 November 1965
• Docket Number: No. 19134.,19134.
• Citation: 122 US App. DC 324,353 F.2d 862
• Parties: Henry W. JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 324, 353 F.2d 862 (1965)

Henry W. JACKSON, Appellant, v. UNITED STATES of America, Appellee.

No. 19134.

United States Court of Appeals District of Columbia Circuit.

Argued June 16, 1965.

Decided November 4, 1965.

Mr. George U. Carneal, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Dean W. Determan, Sp. Asst. to Atty. Gen., for appellee. Messrs. David C. Acheson, U. S. Atty. at the time the brief was filed, and Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief for appellee. Mr. Patrick H. Corcoran, Asst. U. S. Atty. at the time the brief was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

WRIGHT, Circuit Judge:

This case is before us for the second time following appellant's conviction on two counts of narcotics violations. On the appeal from the conviction, we held that the trial judge had erred in refusing to allow appellant to cross-examine the police officer concerning the reliability of the informant who had given the information which led to appellant's arrest. The case was remanded for a hearing on the issue of the informant's reliability. Jackson v. United States, 118 U.S.App. D.C. 341, 336 F.2d 579 (1964). On remand, after hearing the testimony of the police officer and the informant, the trial court concluded that "probable cause for the defendant's arrest existed and that he suffered no prejudice because of the arrest and therefore no new trial is required."

Officer Bello testified that on November 15, 1962, he and another officer were approached by one Ethel Gaskins who informed them that "a Negro male, five foot nine, 25 to 27 years, wearing a brown cap, a tan zipper waist-length jacket, green corduroy trousers, dark complexion," was in the Franklin Delicatessen and had heroin in his possession. On this information alone — the officers had never heard of appellant — the policemen entered the store, found appellant and another Negro male, and asked both of them to step outside. Once outside, a search first of the person arrested with appellant was unproductive. A subsequent search of appellant disclosed he was carrying contraband narcotics.

The District Court concluded that the quality of the information the officer allegedly received was clearly such as would normally lead directly to the suspect, and that the informant was reliable as she had previously given accurate information to Officer Bello. We agree that the information was sufficiently detailed so that the officers should have been led directly to the suspect. But we reject as clearly erroneous the District Court's assumption or implied finding that the officers in fact received this detailed information. It follows that the conclusion of probable cause is unacceptable. See Jackson v. United States, supra, 118 U.S.App.D.C. at 342, 336 F.2d at 580.

I

A distinction seems to exist in reviewing judge-made findings in criminal cases between cases where the judge sits in the place of the jury, with the appellate court reviewing his finding of guilt, and where the judge sits and decides matters which traditionally or by statute have been allocated to him. In the former situations, this court applies the same rule it applies in reviewing criminal jury cases: The conviction must be reversed if it is clear "that upon the evidence a reasonable mind could not find guilt beyond a reasonable doubt."¹

When dealing with findings of a judge on issues other than guilt, however, the test for review, as indicated by the Supreme Court, varies. In cases where the lower court acts concerning matters peculiarly within its discretion, a narrow test is applied.² But fact findings unrelated to the exercise of trial court discretion are subjected to a broader test. While the Federal Rules of Criminal Procedure establish no particular test for review, Rule 57(b), FED.R. CRIM.P., authorizes courts, "if no procedure is specifically prescribed by rule, * * * to proceed in any lawful manner not inconsistent with these rules or with any applicable statute." Thus, in reviewing facts in such cases, courts apply the "clearly erroneous" standard of Rule 52(a), FED.R.CIV.P.³ For example, the Supreme Court, in Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963), applied the "clearly erroneous" standard in reviewing a finding of a trial court, pursuant to a motion under the Jencks Act, 18 U.S.C. § 3500(e) (1), that a certain report was actually a copy of the notes of an interview and therefore was a "statement" under the Act. See also Davis v. United States, 328 U.S. 582, 593, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Other courts have applied the same test in criminal proceedings.⁴ We apply it here.

"A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."⁵ It is clear now that the rule applies whether or not there were conflicts in testimony which the lower court resolved. See generally 2B BARRON & HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE § 1132 (Wright ed. 1961). The test simply becomes narrower when credibility is involved, a result consistent with the language of Rule 52(a), FED.R. CIV.P. So, while courts applying the rule have rejected findings based upon credibility in both civil, e. g., Riddell v. Guggenheim, 9 Cir., 281 F.2d 836 (1960), and criminal cases, e. g., Maxwell v. United States, supra Note 1, this power should be exercised with great caution. See Marsh v. United States, 2 Cir., 29 F.2d 172, cert. denied, 279 U.S. 849, 49 S.Ct. 346, 73 L.Ed. 992 (1928) (L. Hand, J.). The one thing that seems certain in this area is that the "truth" is elusive. To a large extent, therefore, we must rely upon the trial court's judgment based upon its observation of the witnesses. See generally FRANK, COURTS ON TRIAL (1949).

II

It remains our responsibility, however, to review fact findings and to reject them when we are firmly convinced they are wrong, when the probability of error is too great to tolerate. This involves, in some contexts at least, an evaluation of the credibility of the witness or witnesses upon whose testimony the finding is based. While the trial judge's observation of demeanor must be given appropriate weight, it must be remembered that "credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 9 Cir., 314 F.2d 718, 749 (1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Thus, to the extent that the credibility of the police officers in this case turns on their demeanor, we must defer. But that the officers seemed to be telling the truth does not end the matter. A number of other factors often considered in judging credibility must be examined, such as whether the witness was interested in the outcome, his reputation, his degree of recall, the internal inconsistencies in his testimony, and the likelihood of his story.⁶

A close scrutiny of the record in this case is required because of circumstances which seriously hampered the opportunity of the judge at the hearing on mandate fully to evaluate credibility. The testimony in this case is spread out in three transcripts which were compiled over a nearly two-year period.⁷ The serious in consistencies in the officers' testimony become clear only by studying the first transcript and comparing it with the second and third. Significantly, the judge who presided at the trial and at the hearing on mandate did not preside at the first hearing; nor is there adequate proof that he familiarized himself with or considered the transcript of the first hearing.⁸ Apparently the trial judge did not consider the possibility that Bello's testimony should be rejected. Had he done so specifically, he probably would have dealt with some of the matters we discuss below. As it is, we cannot assume that he gave Bello's credibility the attention it deserved.

Normally, as an appellate court, we accept the testimony of police officers and other witnesses credited by the trial court. But we are not compelled to accept the testimony of any witness. See, e. g., Kelly v. United States, 90 U.S. App.D.C. 125, 194 F.2d 150 (1952); Herter v. United States, 9 Cir., 27 F.2d 521 (1928), both rejecting police testimony. Officer Bello's testimony was corroborated by Ralls, his fellow officer,⁹ but, as the Supreme Court has stated, the doctrine that if witnesses concur in proof of a material fact they ought to be believed "can be received only under many qualifications, and with great caution." The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 338, 5 L.Ed. 454 (1822) (Story, J.). In some cases police testimony, like other testimony, will simply be too weak and too incredible, under the circumstances, to accept.

Officer Bello's ability to recall dates and events was unimpressive. See, e. g., 3 Tr. 29, 39. The only thing he claimed to remember in detail was the description of Jackson. Furthermore, there are important inconsistencies in his testimony. For example, Bello testified at the first hearing that the officers arrested the man who was in the delicatessen with Jackson because "we wanted to be sure of our identification. They resembled each other." 1 Tr. 19. At the trial he claimed the arrest was made because the officers did not "want to make it too obvious that we had information that he had the narcotics on him" 2 Tr. 39, and at the hearing on mandate he said the description tallied as soon as he saw Jackson 3 Tr. 25-26. This and other inconsistencies contribute to our conviction that the credibility of Bello's testimony was questionable at best.¹⁰

Our conviction that Bello's testimony should have been discredited, however, is...