Smith v. United States
| Decision Date | 23 April 1964 |
| Docket Number | No. 17959.,17959. |
| Citation | 118 US App. DC 133,332 F.2d 720 |
| Parties | Bernard SMITH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Jo V. Morgan, Jr., and Gilbert Hahn, Jr., Washington, D. C. (both appointed by this court), with whom Mr. Mark B. Sandground, Washington, D. C., was on the brief, for appellant.
Mr. William H. Willcox, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.
Before FAHY, DANAHER and McGOWAN, Circuit Judges.
On appellant's first appeal from a conviction of housebreaking and rape, we reversed because of the prosecutor's prejudicial references in closing argument to a medical report not in evidence. A second trial also resulted in convictions on both counts.
Appellant now contends the trial judge should have granted his motion for acquittal because of allegedly insubstantial corroboration of the complainant's testimony. We do not agree, for we are satisfied that ample evidence was presented upon which the jury might properly find corroboration1 of the complainant's version of the occurrences.
Appellant also attacks a ruling with respect to evidence which tended to impeach his credibility. He had testified at trial that the complaining witness had consented to his having relations with her. On cross-examination, the Government produced appellant's pretrial affidavit prepared in support of his motion for the issuance of subpoenas. Rule 17(b)2 spells out the requirements for the showing which an indigent defendant must make. Appellant accordingly had sworn that he expected "to establish that I was not at the scene of the crime at the time it was committed" and that the evidence he sought was material to his defense "because it will establish my alibi."3 Under such circumstances, use of the affidavit for purposes of impeachment was again permitted at the second trial following this court's decision on appellant's first appeal.4 That opinion is controlling here; indeed, we may note that after the instant appeal had been filed, this court denied appellant's motion for a hearing en banc as to this very issue.5
Finally, the appellant claims error in the denial of his motions for a mistrial. He argues that he was prejudiced by a ruling which permitted a showing that at the first trial he testified his income was derived, in part at least, from "writing numbers."
The transcript shows that just before the first trial got under way according to the appellant's testimony during that trial, he abandoned his intended defense of alibi and decided that he was "going to set up a defense of consent." In aid of his position, the appellant testified that on each of two occasions he had paid the complaining witness $25 to secure her consent to relations with him. His lawyers had asked, he testified, how he was able to have available $25 out of a salary of $65 per week.
That testimony was given without objection; perhaps as a matter of trial tactics, the defense thought it strengthened the appellant's claim.
At the second trial the appellant again took the stand and testified in great detail. It was brought out that he had been convicted of robbery in the District of Columbia on February 22, 1952, and was imprisoned at Lorton, as he put it, for "five years, five months and seventeen days." At some point following his release, the appellant's wife, mother of the complaining witness, went elsewhere to reside. The appellant commenced living with a woman named Jones. He testified that on one occasion he left her bed in the middle of the night to bring food to the complaining witness, and then had relations with her for which he paid nothing. As at the first trial, he testified he had paid her $25 on each of two occasions to engage in intercourse with him.
In the evening before the crime, according to the appellant, he had taken his stepdaughter to ride in his automobile, had procured whisky for her and had bought a sandwich for her. On the night of the crime he handed her a roll of bills which she put under the pillow. After relations with her, she discovered that he had paid her only $17. Then, she began to scream and threatened him with a butcher knife, and her complaint followed. Such was the nature of his claim of "consent" which developed into an outcry only because he lacked $8, he testified.
On cross-examination, it was developed that he knew the complaining witness had three small children in the house and was then four months pregnant by her husband who had left for overseas service in the Navy. Answering the prosecutor's questions, the appellant admitted various convictions in South Carolina in 1935,6 in Spartanburg for burglary in 1936; in the District of Columbia for robbery in 1952. He testified that he was earning $65 per week. He was then asked: "Was it a little steep for you to pay Mrs. Taylor $25 when you had sexual relations with her?" "No, sir," he answered, explaining that he had other "income" from loans. Further cross-examination on various details as to appellant's financial situation led to his saying he tried to borrow additional funds from a co-worker to whom he identified his stepdaughter as the intended recipient. Still bearing upon the appellant's claim of having paid $25 for intercourse with his stepdaughter, the prosecutor asked:
Upon objection by defense counsel the judge struck the question and the answer.
Promising to connect up the subject matter, the prosecutor then with the transcript of the first trial at hand, undertook question and answer references to the appellant's testimony at the first trial. The defense moved for a mistrial which was denied. At a bench conference the trial judge observed to appellant's attorneys: "When someone has beeen convicted of all the things he has been convicted of, it seems to me answering a question of numbers is of no significance at all." The judge explained that when the earlier ruling was made "I did not know that he had given testimony saying that he did write numbers."
Because of the deference due to the views of our colleague, we have carefully considered the entire record in this case.7 We are convinced that no substantial rights of this appellant were affected. As the trial judge remarked, supra, it is inconceivable that the jury would have given more than the slightest weight to this appellant's admission that at the first trial he had testified to having engaged in "writing numbers."8 Rule 529 provides that any "error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." We are satisfied that even were we to say that the judge here had erred, the ruling could have had only slight effect.10
Affirmed.
The decision of this court when the case was here before, Smith v. United States, 114 U.S.App.D.C. 140, 312 F.2d 867 (1962), sustains the admissibility for impeaching purposes of the affidavit of appellant under Rule 17(b). Except for the controlling effect of the prior decision I would reconsider the question.
As to the admission at the trial now under review of the evidence that appellant had engaged in "writing numbers," the Government quite correctly, as it seems to me, at least inferentially concedes error. It contends, however, that the evidence was harmless, pointing out that it pertained merely to the credibility of appellant, and urging that his credibility was so strongly challenged by other evidence that the...
To continue reading
Request your trial
-
United States v. Hoffa, 16634.
...and compelling circumstances, appellate courts should not relitigate issues which they already have decided. Smith v. United States, 118 U.S.App.D.C. 133, 332 F.2d 720-721 (1964); United States v. Meredith, 172 F.2d 745, 746 (7 Cir., 1949); 1B Moore's Federal Practice Sec. 0.404 (10) at pag......