Kinard v. United States, 13712.

• Docket Nº: No. 13712.
• Citation: 416 A.2d 1232
• Case Date: June 20, 1980
• Court: Court of Appeals of Columbia District

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416 A.2d 1232 Jerome KINARD, Appellant,
v.
UNITED STATES, Appellee. No. 13712. District of Columbia Court of Appeals. Submitted May 10, 1979. Decided June 20, 1980.

John E. Ormond, Jr., Washington, D.C., appointed by the court, was on briefs for appellant.

Earl J. Silbert, U. S. Atty. when the brief was filed, Washington, D.C., and John A. Terry, Peter E. George, and Margaret Ellen, Asst. U. S. Attys., Washington, D.C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted by a jury of attempted petit larceny. D.C. Code 1973, §§ 22-103, -2202. He contends that the trial judge erred in refusing to give the jury the so-called "falsus in uno" instruction.¹ We affirm.

I

Appellant's trial was brief. The first of the government's two witnesses was Henry Tydings, a special police officer for the Hecht Company department stores. He testified that while he was on duty in the linen department of the downtown store, he saw appellant remove a Hecht Company shopping bag from a canvas bag appellant was carrying and place what appeared to be several bed sheets inside the shopping bag. Tydings alerted other store detectives by radio as to what was transpiring. He then followed appellant, who walked past several cash registers without paying for the goods, went down an elevator, and headed toward an exit on the first floor. As appellant attempted to leave, Tydings pointed him out to another security officer, Claude Nelson, who stopped appellant short of the door. Four sheets and two pillowcases were recovered from appellant's possession.

On cross-examination, Officer Tydings testified that after appellant was arrested,

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he claimed that he had been attempting to exchange the sheets. Additionally, Tydings stated that he had not discussed appellant's case with the other officer who was to testify that day.

That other officer was Officer Nelson. Nelson corroborated Tydings' testimony about an internal radio alert and the stop. On cross-examination, however, he said that he had discussed appellant's case with Officer Tydings prior to trial. He also stated that he had not heard appellant claim that he had been attempting to exchange the merchandise.

In an endeavor to further the exchange theory, the defense put on its sole witness, appellant's aunt. She testified that on the day of appellant's arrest she had given him a "set of sheets and pillowcases," which she previously had purchased at the Hecht Company, to exchange for her. She added that those items were in a Hecht Company bag. Unfortunately for appellant, however, on cross-examination his aunt testified that the set she gave him to return consisted of two sheets, rather than the four which were found in the bag by the security officers.

At the close of the evidence, defense counsel requested that the trial court include the falsus in uno instruction in its charge to the jury, asserting that the instruction was appropriate due to the discrepancy between Tydings' and Nelson's testimony concerning their discussing the case prior to trial. The court denied that request, stating, inter alia, that (1) it did not believe that the evidence warranted the instruction, (2) the jury's ability to account for any discrepancy in the testimony would be well covered by the general standard instructions on credibility, and (3) in light of the credibility instructions, defense counsel would be free to argue the disparity in the officers' testimony to the jury.²

Consistent with that ruling, in closing argument defense counsel emphasized the disputed testimony to the jurors, who, nevertheless, found appellant guilty of attempted petit larceny. Appellant now asserts that the trial court abused its discretion by not giving the requested instruction.

II

The instruction sought by appellant has its historical antecedent in the maxim falsus in uno, falsus in omnibus, meaning "false in one thing, false in everything." The maxim originated from the common-law

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rule that conviction of a felony disqualified a witness; thus, since perjury was a felony, jurors were required to disregard the testimony of one whom they found to have perjured himself at trial. See Virginian Railway Co. v. Armentrout, 166 F.2d 400, 405 (4th Cir. 1948); 3A Wigmore evidence § 1009 (Chadbourn rev. ed. 1970). This rule was carried over to this country in the form of a mandatory instruction which directed that if jurors believed that a witness had willfully testified falsely as to any material matter, then they were to disregard the witness' entire testimony. See Annot., 4 A.L.R.2d 1077, 1081 (1949). However, this harsh rule was never widely followed and today it is applied only in Georgia, where it is preserved by statute. Id., at 1083; see Anthony v. Douglas, 201 So.2d 917, 918 (Fla.App.1967).

Despite the demise of the mandatory instruction, a vestige of the original maxim lingers on in several jurisdictions in the form of a "permissive" charge, which — like the subject standardized instruction in the District of Columbia — states that jurors may disregard all or part of the testimony of a witness whom they believe to have testified falsely as to a material matter. See Fuchs v. Aronoff, D.C.Mun.App., 46 A.2d 701, 703 (1946). However, even this permissive form of the concept has been rejected by many courts. See, e. g., United States v. Taglianetti, 456 F.2d 1055, 1056 (1st Cir. 1972) (not error to refuse instruction based on maxim); United States v. Harris, 346 F.2d 182, 185 (4th Cir. 1965) (same); Knihal v. State, 150 Neb. 771, 36 N.W.2d 109, 112-14 (1949) (same); Rowland v. St. Mary's Bank, 93 N.H. 246, 40 A.2d 741, 742 (1944) (maxim is "worthless"); State v. Harris, 106 R.I. 643, 262 A.2d 374, 377 (1970) (error in future cases to give instruction based on maxim). Moreover, even when out of deference to precedent courts have not flatly rejected the instruction, they have been uniformly critical of it and counseled that it should be avoided. See, e. g., Smith v. United States, D.C.App., 269 A.2d 446, 447-48 (1970) (Hood, C. J., concurring); Beavers v. Boykin, 273 Ala. 413, 142 So.2d 10, 11 (1962); Anthony v. Douglas, 201 So.2d 917, 918-19 (Fla.App. 1967); Greenfield v. Unique Theatre Co., 146 Minn. 17, 177 N.W. 666, 668 (1920); State v. Leavitt, 103 R.I. 273, 237 A.2d 309, 316-17, cert. denied, 393 U.S. 881, 89 S.Ct. 185, 21 L.Ed.2d 155 (1968). The reasons for such criticism were stated as follows by the Fourth Circuit...