Smith v. United States

• Citation: 312 A.2d 781
• Decision Date: 14 December 1973
• Docket Number: No. 7051.,No. 7085.,7051.,7085.
• Parties: John N. SMITH, Appellant, v. UNITED STATES, Appellee. James D. BRINKLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

312 A.2d 781

John N. SMITH, Appellant, v. UNITED STATES, Appellee.

James D. BRINKLEY, Appellant, v. UNITED STATES, Appellee.

No. 7051.

No. 7085.

District of Columbia Court of Appeals.

Argued September 13, 1973.

Decided December 14, 1973.

Frederick S. Hird, Jr., Washington, D. C., appointed by this court, for appellant Smith.

Silas J. Wasserstrom, Washington, D. C., appointed by this court, for appellant Brinkley.

Joseph B. Valder, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Charles J. Harkins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before KERN, GALLAGHER and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

Appellants in this case, John N. Smith and James D. Brinkley, were tried jointly before a jury and convicted of armed robbery¹ and assault with a dangerous weapon.² They appeal from their convictions, jointly and separately assigning various errors which will later be discussed. We affirm Smith's conviction for armed robbery, find the assault count was merged therein, and reverse both the convictions of Brinkley.

At 2:30 a. m. on July 20, 1972, the victim, John A. Webster, received a phone call from a person who identified herself as "Carolyn". The caller asked Webster if he would pick her up at 52nd and Division Avenue and take her home. Webster agreed and drove to that address. He did not see her there, but after circling the block encountered Janis McIlwain, who was known to him, and who told him that Carolyn couldn't go. When she asked him to give her a ride home, Webster agreed. While sitting in the car in front of her home his door was yanked open by a man, later identified as appellant Brinkley, who pointed a gun at him and told him to get out of the car. The man led Webster to an alley where he took from him his watch, valued at $365. His accomplice, later identified by Webster as Smith, took $1200 in cash from Webster's wallet and front pocket. Webster called the police and reported the incident.

On August 31, 1972, plainclothesman Robert Pettis of the Metropolitan Police Department showed Webster nine photographs, two of which were of appellants. (Earlier Pettis had obtained information as to the identity of appellants from Janis McIlwain.) Webster selected the photographs of appellants, later identified the two men in a lineup, and again identified them at trial.

On November 3, 1972, six days before trial, Officer Pettis was at the home of Janis McIlwain, a prospective government witness, when someone knocked at her front door. He went to the kitchen where he was able to overhear a conversation between Miss McIlwain and the visitor. Pettis testified that he heard a male voice, which he recognized to be that of appellant Smith, say the following to Miss McIlwain:

"You should have kept your mouth shut as to who James and I were. You let that damn black detective fool you into telling us [sic] who we were."

Pettis further testified that he heard the voice say

that he and James could get fifteen years for this and that he was not going — or James — neither one was not [sic] going to go and serve fifteen years in jail and leave their families unless they took her with them.

Miss McIlwain did not testify.

At the trial Officer Pettis admitted that he had told an untruth at the preliminary hearing when he testified under oath that he did not know if there were any other witnesses to the crime (other than Webster). In fact Officer Pettis knew that Janis McIlwain had witnessed the crime. Pettis' explanation for having lied was that he was attempting to protect Miss McIlwain. The trial judge refused to give the standard instruction concerning testimony of an admitted perjurer instead giving his own instruction regarding a witness who has admittedly lied under oath. The instruction did not use the word perjury and indicated that the explanation for the untrue testimony might be considered in evaluating the witness' testimony.

Both appellants assign as error the trial court's refusal to give the standard jury instruction regarding testimony of an admitted perjurer,³ with respect to Officer Pettis' testimony.

There is no reason to believe that only the exact wording of the standard jury instruction will adequately inform a jury as to the need to "receive with caution and scrutinize with care" the testimony of one who has previously lied under oath. A comparison of the standard jury instruction (see note 3, supra) with the instruction given by the trial court judge⁴ reveals that the instruction given contained both elements of the standard instruction. It recited that Officer Pettis admitted he lied under oath, a reasonable definition of perjury, and it told the jury that Pettis' testimony was to "be received with caution and scrutinized with care", the exact words of the standard instruction.

Appellants claim, however, that the instruction was erroneous insofar as it additionally told the jury that it could weigh the explanation given by Officer Pettis for having lied. We think it entirely reasonable for the judge to inform the jury that they could take into account, in evaluating Pettis' testimony, his explanation for having previously lied. When a similar situation arose in United States v. Ross, 322 F. 2d 306, 307 (4th Cir. 1963), where a witness admitted to having given perjured testimony before the grand jury because of his fear of retaliation, the court there said:

His admission of his earlier inconsistent testimony and his explanation of it created issues of credibility which were properly submitted to the jury. When the Court clearly instructed the jury that, in considering the credibility of a witness, they might take into account his earlier inconsistent statements, it was not essential that the Court also instruct the jury further as to the weight to be given the testimony of a perjurer.

The jury was entitled to accept as true the trial testimony of the bellboy. If it believed it, as it must have. . . . (Emphasis added.)

We find no error in the court's instruction on perjured testimony.

Appellant Smith cites as error the admission into evidence against him, over his objection, of Officer Pettis' testimony as to the conversation he overheard at Miss McIlwain's apartment between Smith and Miss McIlwain. This evidence, supra, consisted of a threat by Smith against Miss McIlwain concerning testimony she might give against him. Inextricably entwined in the threat was language which constituted implied admissions of participation in the crime charged. Smith contends that this evidence constituted evidence of another crime (obstruction of justice) and as such it could not be admitted against him unless it was shown that its probative value outweighed its prejudice.

In Bradley v. United States, 140 U.S. App.D.C. 7, 11-12, 433 F.2d 1113, 1117-1118 (1969), the court commented on the admissibility of evidence of crimes other than those with which the defendant has been charged.

Few doctrines are more firmly established than the "principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged." . . . (Emphasis in original, footnote omitted.)

The case before us does not fall within the above doctrine regarding the inadmissibility of evidence of other crimes since the evidence was not admitted for the purpose of proving "disposition to commit crime"; it was, rather, admitted directly to prove guilt, inasmuch as it contained an admission of complicity in the crime.

What we have before us is a situation where an admission, directly relevant to guilt, is entwined with other evidence, a threat, such other evidence tending to prove another, but unrelated criminal act, obstruction of justice. Smith contends that the otherwise admissible evidence of the admission is rendered inadmissible by the presence of the threat evidence. We disagree.

In Bradley v. United States, supra the court said that (quoting 2 J. Wigmore, Evidence § 416 (3d ed. 1940))

"where a circumstance is relevant for some purpose, the incidental revelation, in offering it, of other criminal conduct by a defendant does not stand in the way of receiving the evidence." [140 U.S. App.D.C. at 13, 433 F.2d at 1119 (emphasis in original).]

The court, however, also suggested that such evidence though relevant would not be admissible when its prejudicial effect outweighed its probative value. The rule recited was that

evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it, but otherwise inadmissible. . . . [Harper v. United States, 99 U.S.App.D.C. 324, 325, 239 F. 2d 945, 946 (1956) (emphasis added).] That evidence of an admission of complicity in a crime is highly probative as being "substantially relevant to the offense charged", is beyond question.⁵ The fact that its use results in the revelation of other criminal activity is merely incidental. The testimony was therefore admissible.

In People v. Cruz, 260 Cal.App.2d 55, 66 Cal.Rptr. 772 (4th Dist. 1968), cited by Smith, it was held that evidence of a threat against a prosecution witness, made after the witness had testified, lacked the probative value necessary to overcome its prejudicial effect and therefore was inadmissible. The only relevance of this evidence stemmed from the inference that only a guilty person threatens witnesses; there is no indication in the case, as reported, that the threat contained an admission of complicity in the crime charged, which factor gives the evidence in the instant case probative value independent of any inference which may be drawn from the threat itself.

Smith further contends that, even if the testimony was admissible, it was admissible for the...