Jones v. United States

• Decision Date: 29 September 1967
• Docket Number: No. 20679.,20679.
• Parties: Aaron JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 36, 385 F.2d 296 (1967)

Aaron JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 20679.

United States Court of Appeals District of Columbia Circuit.

Argued June 6, 1967.

Decided September 29, 1967.

Mr. Joseph Patrick Clancy, Washington, D. C. (appointed by this court), for appellant.

Mr. William R. Weissman, Sp. Atty., Office of the United States Atty., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and ROBINSON, Circuit Judge.

PER CURIAM:

Appellant was charged with the second degree murder of John Hyland Rinker and convicted by a jury of manslaughter. At the trial, he admitted that he shot and killed Rinker with a pistol but claimed that he acted in self-defense.

The uncontradicted evidence revealed that following an altercation in an elevator involving appellant, Rinker, and one Robert Houston,¹ appellant went to his apartment on the third floor of the building, armed himself with a pistol, and proceeded to the fifth floor, where the fatal episode occurred. Appellant testified that he went to the fifth floor "to see why the man kicked me, after I hadn't done anything to him." There, he avowed, he observed Rinker and Houston walking down the corridor toward him, and heard Houston say "there he is." Appellant added that at the time the fatal shot was fired Houston had a butcher knife in his hand, and that Rinker had his hand in his pocket and "come toward me as if he were going to take something out of it, do something to me." A police detective, who arrived on the scene shortly after the shooting, testified that he found Rinker lying in the corridor with his hand in his pocket, and that in his hand was a penknife with the blade open.

One of the witnesses called by the Government was Maria Ann Davis, who was in appellant's apartment at the time these events transpired. She testified on direct examination that appellant came there, went to a desk where he kept a gun, and left immediately, and that she noticed that "he had a spot on the back of his pants, looked like somebody had kicked him." When appellant returned to the apartment, she recounted, he put a gun in the desk drawer, and "just told me he was going to jail, that he shot a man."

On cross-examination, counsel for appellant asked her to restate what appellant had said to her on his return, and she replied: "He told me he had shot a man. And I didn't believe him at first. But I asked him why, and he said he went upstairs and asked the man why did he kick him. And the other man — one man came out after him with a butcher knife and the other one went in his pocket, so he did it to protect himself." On redirect examination by the Government, the following exchanges took place:

"Q. Now, on May 22, 1966, when you were at the Homocide sic Squad, do you recall being asked the following question and giving the following answer:

"`Question: Did Aaron tell you of any argument he had with the man?

"`Answer: The only — he said was that the man was drunk on the elevator and he kicked him and the dog and he asked him not to kick the dog or step on the dog. He didn\'t say anything else about it.\'

"Do you recall that question and answer?

"A. Yes, I do.

"Q. Do you deny making that statement?

"A. No.

* * * * * *

"Q. Do you recall being asked this question and giving this answer:

"`Question: Is there anything you wish to add to the statement that has not been covered?

"`Answer: No. I don\'t have anything else to add.\' "Do you recall being asked that question and giving that answer?

"A. I guess so, if it is on there.

* * * * * *

"Q. Now, page five of your Grand Jury testimony, which I have already shown to defense counsel, Your Honor.

"`Question: Did he tell you at any time about an argument he had with a man on the elevator about kicking his dog?

"`Answer: He told me the guy kicked the dog and he asked him not to or step on the dog. My dog is very playful. He asked him not to kick the dog again and the guy pushed him off the elevator.\'

"Do you recall that question and that answer?

"A. (Witness nods assent)."

The Government then offered in evidence the exhibits containing these prior statements "solely with respect to this witness' credibility," claiming that it had been surprised by her testimony. Counsel for appellant stated that he had no objection, and the exhibits were introduced. The trial judge did not instruct the jury as to the limited purpose for which the statements were received, either at that time or in his charge. Appellant's attorney never requested such an instruction, and expressed satisfaction with the judge's charge when it was concluded. Appellant now contends, however, that the judge committed reversible error in not giving sua sponte, a cautionary instruction, both when the statements were let into evidence and at the close of the case.²

Any resolution of this issue importantly involves our statute confining "the party producing a witness," in the use of prior inconsistent extrajudicial statements by the witness, to "the purpose only of affecting the credibility of the witness,"³ and our interpreting decisions in Bartley v. United States⁴ and Coleman v. United States,⁵ none of which the Government saw fit to mention, much less to discuss, in its brief. In Bartley, we held that a trial judge's failure at some time to instruct the jury as to the narrow purpose for which incompatible declarations previously made by a party's own witness are permitted consideration was plain error which under the circumstances affected substantial rights.⁶ In Coleman, we affirmed a conviction where the trial judge's charge had informed the jury that statements of that type might be accredited only for their bearing on the credibility of the witness, but we nonetheless stated that "from this day forward * * * we read the statute as contemplating a ruling by the trial court which comprehends, in addition to a finding of surprise, an immediate representation to the jury as to the purpose for which the impeaching statements are being permitted to come in."⁷

The Government argues that the divergence from Bartley and Coleman in this case should stand because appellant's failure to contest the admission or request an admonitory instruction was the product of a tactical choice,⁸ and so a waiver of any objection to their general use. The Government's theory is that appellant preferred to forego limiting instructions in order to avoid the risk of focusing attention on variations between appellant's testimony⁹ and that given by Miss Davis on her redirect examination. But not only is the record silent as to any such decision by appellant or his counsel, but it discloses that appellant's attorney, on recross-examination of Miss Davis, specifically mentioned the apparent contradiction of her trial testimony by her pretrial statements, and elicited from her an explanation of the discrepancy. This seems to us to be irreconcilable with an ambition to divert the jury's attention from an embarrassing testimonial conflict.¹⁰

The Government also contends that by questioning Miss Davis concerning appellant's statements following the shooting, appellant's counsel raised new matter on his cross-examination, and that to this extent Miss Davis became appellant's witness.¹¹Bartley and Coleman, we repeat, were decided under a statute which in terms deals only with impeachment of a party's own witness, which the Government says was not the case when it again questioned Miss Davis on redirect examination on the matter. We do not accept this premise. The Government, on direct examination, specifically asked the witness to relate what appellant had said on returning to the apartment after the shooting. By eliciting further testimony on this same point, appellant's counsel did not improperly expand the scope of cross-examination.¹² Nor, in our view, would the Bartley Coleman doctrine become inefficacious even if the premise were correct.

The rule that a party may not impeach his own witness is distinct from the rule that an earlier contradictory statement made extrajudicially by a nonparty witness, since it is hearsay, may be received only for its tendency to demonstrate that the witness is unworthy of belief. The statute merely codifies a common law exception to the first rule,¹³ and the second rule is as applicable to impeachment of another's witness as it is to impeachment of one's own.¹⁴ Our Bartley and Coleman decisions, in going beyond the explicit requirements of the statute, represent our strong and continuing endorsement of the principle that hearsay statements are not to be considered by juries, and the rationale of these cases cannot logically or justifiably be restricted to instances of impeachment of the party's own witness. We hold that the salutary instructions they demand when a party seeks to impeach by inconsistent...