Pinkney v. United States, No. 19925.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BASTIAN, Senior Circuit , and WRIGHT and LEVENTHAL, Circuit
• Citation: 124 US App. DC 209,363 F.2d 696
• Parties: Yvonne PINKNEY, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 19925.
• Decision Date: 08 July 1966

124 US App. DC 209, 363 F.2d 696 (1966)

Yvonne PINKNEY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 19925.

United States Court of Appeals District of Columbia Circuit.

Argued June 16, 1966.

Decided July 8, 1966.

363 F.2d 697

Mr. Robert M. Lichtman, Washington, D. C., with whom Mr. Lawrence J. Bernard, Jr., Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Sidney M. Glazer, Attorney, Department of Justice, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BASTIAN, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

Appellant was indicted for second degree murder and convicted of manslaughter. She alleged trial court error (1) in admitting in evidence appellant's prior convictions of disorderly conduct,¹ vagrancy² and soliciting prostitution³; (2) in admitting into evidence a knife found in the patrol wagon some time after appellant was a passenger therein; (3) in charging the jury with respect to decedent's arrest for assaulting a police officer; and (4) in permitting the prosecutor to question a key defense witness regarding prior inconsistent statements, which the witness denied, without showing any basis for the questions, at the time they were asked or later in the trial.

Since we reverse for a new trial on other grounds, we find it unnecessary to pass on the allegations of error with respect to the charge and the prosecutor's

363 F.2d 698

questions to the defense witness.⁴ We find that the knife was properly admitted in evidence, it having been accurately described by an eye witness to the homicide before the knife was found and identified by him on trial as being similar to the homicide weapon. The prior record of appellant, however, should not have been admitted in evidence to impeach her testimony over her objection

This court has recognized that evidence of prior convictions must be received with caution, for such evidence "not only permits the prosecutor to throw doubt upon the defendant's testimony regarding the facts of the case being tried, but also may result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community." Richards v. United States, 89 U.S.App. D.C. 354, 357, 192 F.2d 602, 605, 30 A.L.R.2d 880 (1951), cert. denied, 342 U.S. 946, 72 S.Ct. 560, 96 L.Ed. 703 (1952). Even cautionary instructions "cannot prevent the jury from considering prior actions in deciding whether appellant has committed the crime charged. The courts need not rest on the assumption that juries can compartmentalize their minds and hear things for one purpose and not for another." Awkard v. United States, 122 U.S.App.D.C. 165, 170, 352 F.2d 641, 646 (1965).⁵

Since the adoption in 1901 of 14 D.C.CODE § 305,⁶ this court has never expressly determined whether the term "crime" in that statute encompasses so-called petty offenses to which the right of trial by jury does not apply. Indeed, on two occasions we have indicated that the question is an open one. Jones v. United States, 119 U.S.App.D.C. 213, 214-215 n. 4, 338 F.2d 553, 554-555 n. 4 (1964) (per curiam); Sanford v. United States, 69 App.D.C. 44, 46, 98 F.2d 325, 327 (1938) (per curiam). We have held that § 305 does not apply to convictions involving violations of municipal ordinances. Clawans v. District of Columbia, 61 App.D.C. 298, 62 F.2d 383 (1932). In so holding, we relied on Schick v. United

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States, 195 U.S. 65, 70, 24 S.Ct. 826, 49 L.Ed. 99 (1904), where the Supreme Court construed the word "crimes" in the jury trial provision of Article III⁷ of the Constitution as excluding petty offenses. Clawans, supra, 61 App.D.C. at 299, 62 F.2d at 384. Thus the rationale of our holding in Clawans is not based on the fact that the impeachment...