Pinkney v. United States
Decision Date | 08 July 1966 |
Docket Number | No. 19925.,19925. |
Citation | 124 US App. DC 209,363 F.2d 696 |
Parties | Yvonne PINKNEY, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
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 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 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 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 evidence admitted there involved municipal ordinances, but rather that the violations of municipal ordinances, being petty offenses, were not triable to a jury and thus were not included in the "crimes" referred to in § 305.
In the present case the prosecutor was permitted by the trial court, over the objection of defense counsel, to impeach appellant's credibility by referring to thirteen prior convictions of petty offenses — vagrancy, disorderly conduct and soliciting prostitution. Although these are District of Columbia Code offenses, as distinguished from municipal ordinances, none of them is triable by jury.8 16 D.C.CODE § 705(b) (Supp. V, 1966). See District of Columbia v. Clawans, 300 U.S. 617, 625-629, 57 S.Ct. 660, 81 L.Ed. 843 (1937). Consequently § 305 is not applicable to them.
Our holdings in Murray v. United States, 53 App.D.C. 119, 288 F. 1008, cert. denied, 262 U.S. 757, 43 S.Ct. 703, 67 L.Ed. 1218 (1923), Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636 (1937), cert. denied, 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095 (1938), and Campbell v. United States, 85 U.S.App. D.C. 133, 176 F.2d 45 (1949),9 relied on by the Government, are not to the contrary. As far as available records disclose, all of those cases involved misdemeanors punishable by more than ninety days in jail and therefore triable to a jury. 16 D.C.CODE § 705(b). In view of the disposition made herein, it is unnecessary to consider appellant's contentions predicated on Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
Reversed.
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