Luck v. United States, No. 18408.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: DANAHER, WRIGHT and McGOWAN, Circuit
• Citation: 121 US App. DC 151,348 F.2d 763
• Parties: Charles M. LUCK, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 18408.
• Decision Date: 21 May 1965

121 US App. DC 151, 348 F.2d 763 (1965)

Charles M. LUCK, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18408.

United States Court of Appeals District of Columbia Circuit.

Argued September 23, 1964.

Decided May 21, 1965.

Petition for Rehearing Denied August 16, 1965.

348 F.2d 764

Mr. Dennis J. Tuchler (appointed by this court), Washington, D. C., for appellant.

Miss Carol Garfiel, Atty., Dept. of Justice, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Mr. Max Frescoln, Asst. U. S. Atty., also entered an appearance for appellee.

Before DANAHER, WRIGHT and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant was convicted of housebreaking and larceny after a trial at which he put forward an alibi defense. His principal contentions upon appeal are that the District Court erred in (a) receiving in evidence appellant's admission of guilt, and (b) allowing the Government to show by way of impeachment his prior conviction of grand larceny.

Police testimony offered at the trial as a part of the prosecution's case was as follows: At 10:04 P.M. on June 8, 1963, a burglar alarm company received a signal

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from a laundry. Police were alerted and arrived at the scene within a few minutes. With officers stationed at various points around the building, a detective climbed a ladder leading to the roof of the laundry building, where he discovered appellant hiding in an exhaust duct. Appellant was brought to the ground, placed in a cruiser, and driven around to the front of the building. There, presently, a guard from the burglar alarm company unlocked the front door of the laundry and the officers, with appellant, entered. It was discovered that a soft drink machine had been broken open and a coin receptacle was on the floor. Appellant was searched, and two $1 bills and $6.40 in silver were found in his right rear pocket. An officer asked appellant if he had broken into the machine, and appellant stated that he had. Asked how he had gained access to the building, appellant explained that he had entered through a large exhaust fan

Appellant, testifying in his own defense, denied the foregoing version. He said that, at some point between 10:30 and 10:45 on the evening in question, he had just left a companion and was walking along the street several blocks from the laundry. A police cruiser drew up beside him; two officers got out, handcuffed him and took him into custody, saying something to the effect that they "had him this time." He was taken to the laundry, where he arrived at about five minutes of eleven. There he was questioned. At first he denied having robbed the machine or entered the building, but thereafter said what he was told to say because he was tired of questioning. He stated that he had in his possession four $1 bills and $1.40 in change, which was later taken from him at the precinct station. He expressly claimed that any admissions made by him were "not voluntary."

When, during the Government's case and in the presence of the jury, the police officer testified to what appellant had said in answer to a question about the vending machine, defense counsel objected that the admission was the result "of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever." The court overruled this objection, contenting itself with addressing two or three questions to the police officer as to whether any promises or threats had been made.

This handling of the issue of voluntariness raised by counsel's objection does not comport with the procedural standards prescribed by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We note preliminarily that the court here permitted, and indeed invited, the officer's answer to be forthcoming in the jury's presence even before counsel's objection could be fully articulated.¹ It seems to us ill-advised to let the damaging answer be heard by the jury when it is clear what is about to happen and that the defense is raising an objection. A stake is thereby

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created in avoiding a mistrial which is likely to be operative, at least subconsciously, in any subsequent inquiry conducted out of the presence of the jury into the issue raised by the objection. In any event, the factual bases of a voluntariness objection are always to be first explored out of the presence of the jury, with opportunity to both sides to give their versions, unless it is clear that the objection is wholly frivolous. We cannot say that it was so here.² An adequate recognition of the long-established practice in the District of Columbia would have entailed a hearing outside the presence of the jury at the time the objection was made, and, unless a conclusion of involuntariness was reached, a subsequent submission of that issue to the jury. Jackson v. Denno has now made clear that, in those jurisdictions which permit the jury to determine this issue, a hearing is to be held at which the judge shall determine the issue of voluntariness; and he shall do so in full recognition that, in the words of the Supreme Court, "proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant's will has been overborne." 378 U.S. at 385, 84 S.Ct. at 1785. In the record before us it appears that, although the court held no hearing, it did instruct the jury that it could disregard the confession if it accepted the defendant's testimony at the trial as to involuntariness. Thus the requirements of our own practice were met, except for the hearing before the judge. But this, plus a determination by the judge of the issue of voluntariness, are precisely what Jackson v. Denno holds to be essential. Thus, as in Jackson v. Denno, we remand with directions that a hearing of the kind contemplated in that case be held on the issue of voluntariness, with the contingency of a new trial to abide that event.³

The second issue raised on this appeal warrants some discussion. While appellant was testifying, he was asked by the prosecutor whether he had pleaded guilty to grand larceny in the District Court on March 15, 1961. Over objection, he was permitted to answer that he had. The ground of the objection was that appellant was a juvenile at the time of the earlier crime, and that a conviction for it could not be introduced in evidence for any purpose, including impeachment of credibility. The Government contended that, because, at the time of the 1961 offense, the Juvenile Court had waived jurisdiction over appellant and he had been treated as an adult in the District Court and sentenced under the Youth Corrections Act, this prior conviction was admissible for impeachment purposes.

Appellant relies in this regard upon the provisions of Section 2308(d) of Title

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16 of the D.C.Code, which are designed to relieve proceedings in the Juvenile Court from the consequences which customarily accompany conviction of crime in a tribunal of general criminal jurisdiction.⁴ The Government points out, however, that that statute is in terms addressed to adjudications made by the Juvenile Court in the exercise of its jurisdiction, and that it has no application when that jurisdiction has been expressly waived by the Juvenile Court. Here, appellant was waived out of the jurisdiction of the Juvenile Court, and the District Court was authorized to, and did, try and sentence him as an adult. Such a conviction, so it is said, carries with it the usual incidents, including subsequent exposure to impeachment by reason of the earlier conviction as authorized by 14 D.C.Code § 305 (1961)

We agree with the Government to this extent, namely, that we find no clear purpose on the part of Congress to withdraw from the reach of this last-mentioned statute convictions of juveniles in the District Court as adults following upon waivers of jurisdiction by the Juvenile Court. Just as more severe sentencing provisions are available for the punishment of those who are waived, so does conviction entail the consequence that the Government may seek to use it to attack credibility in a later proceeding. Such harsher consequences are always arguments against the wisdom of waiver in an individual case, but their very persuasiveness for this purpose rests upon the existence of such consequences. This is implicit in Judge Youngdahl's statement, made in support of his conclusion to proceed against a defendant as a juvenile and not as an adult, that to do otherwise would mean that the defendant would "be branded with the mark of `criminal' for the rest of his life * *." United States v. Anonymous, 176 F.Supp. 325, 326 (D.D.C.1959).⁵

To the extent, however, that the Government's position implies that the prosecution is always entitled to introduce a juvenile's earlier conviction as an adult following upon waiver of jurisdiction over him by the Juvenile Court, we do not agree. Section 305 is not written

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in mandatory terms.⁶ It says, in effect, that the conviction "may," as opposed to "shall," be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.⁷ There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of...