Stevens v. United States

• Decision Date: 20 October 1966
• Docket Number: No. 19883.,19883.
• Citation: 370 F.2d 485,125 US App. DC 239
• Parties: Algie T. STEVENS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

125 US App. DC 239, 370 F.2d 485 (1966)

Algie T. STEVENS, Appellant, v. UNITED STATES of America, Appellee.

No. 19883.

United States Court of Appeals District of Columbia Circuit.

Argued September 26, 1966.

Decided October 20, 1966.

Petition for Rehearing Denied December 1, 1966.

Mr. Robert A. Metry, Louisville, Ky., with whom Mr. William W. Greenhalgh, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Scott R. Schoenfeld, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY and TAMM, Circuit Judges.

Petition for Rehearing En Banc Denied December 1, 1966.

JUDGMENT

PER CURIAM.

This case came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by this court that the judgment of the District Court appealed from in this case is hereby affirmed.

FAHY, Circuit Judge, dissenting.

Appellant was convicted of robbery (D.C.Code § 22-2901), assault with a dangerous weapon (D.C.Code § 22-502), and mayhem (D.C.Code § 22-506), all growing out of a single incident. His defense was an alibi. The evidence was sufficient to support the jury's verdicts, but it was not without conflict and some uncertainty. The landlady of the house where the crimes were committed, for example, testified appellant was not the man.

Appellant testified in support of his alibi. On cross-examination, without objection by his counsel or restraint by the trial court, the prosecution elicited from appellant that he had been convicted of the following offenses:

Grand larceny, in February 1935;

Larceny, in August 1938;

Grand larceny, in December 1938;

Robbery, in November 1942;

Operating a disorderly house, in October 1959;

Petit larceny, in March 1960;

Petit larceny, January 1961;

Maintaining a gambling premise, in February 1963.

The trial occurred almost five months after the decision in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, where this court pointed out the discretion, and considerations bearing thereon, available to the trial court in permitting evidence of prior convictions to be introduced on the issue of credibility under D.C.Code § 14-305 (Supp. V, 1966). We said:

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 § 305, 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 the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.8 Footnotes omitted.

No discretion appears to have been exercised at appellant's trial, and it is clear that the evidence of numerous prior convictions had a prejudicial effect which outweighed its probative relevance to appellant's credibility. The failure of trial counsel to rely upon our Luck decision to seek at least some limitation upon this type of evidence should not prevent our finding plain error affecting substantial rights in the failure of the court to apply the Luck decision. Rule 52(b), Fed.R.Crim.P.

Walker v. United States, 124 U.S.App. D.C. 194, 363 F.2d 681, does not require affirmance, for there the record of only one prior conviction was admitted. Moreover, the absence of objection by defense counsel was not an oversight, for our opinion states:

even when the prosecutor, with commendable sensitivity to the significance of the matter, interrupted his cross-examination for the purpose of approaching the bench to inform the court and defense counsel that he was about to ask about the prior convictions, no objection of any kind was made.

And in Hood v. United States, 125 U.S.App.D.C. ___, 365 F.2d 949, the facts are so different as to render the opinion inapposite.

A serious question of...