U.S. v. Gilliland, 77-2099
| Decision Date | 22 November 1978 |
| Docket Number | No. 77-2099,77-2099 |
| Citation | 586 F.2d 1384 |
| Parties | 3 Fed. R. Evid. Serv. 1614 UNITED STATES of America, Plaintiff-Appellee, v. Roy Valentine GILLILAND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard D. Judd, Denver, Colo., for defendant-appellant.
Charles Lee Waters, Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee.
Before SETH, BARRETT and LOGAN, Circuit Judges.
This is an appeal from a jury conviction of Roy Valentine Gilliland for transportation of a stolen automobile across state lines in violation of the Dyer Act, 18 U.S.C. § 2312.
The issues upon appeal relate to the propriety of certain questions asked of Gilliland's stepson, Billy Tull, who appeared as a defense witness, concerning criminal convictions of Gilliland 14 to 34 years prior to the offense involved in this trial.
The federal prosecutors presented their case based principally upon stopping defendant near Guymon, Oklahoma while he was driving a vehicle stolen a few hours earlier in Dumas, Texas. The totality of the government's evidence was ample to support the jury conviction, in the absence of the error discussed herein. The defense was that Gilliland did not steal the car, but bought it on approval from a purported car salesman in a bar in Oklahoma, with a portion of the consideration being repayment of a gambling debt owed by the salesman to Gilliland. Defendant's stepson Billy Tull was a defense witness presented as one who had been present at the transfer and who had personally observed much of the paper work in the exchange of title. After Tull had so testified the government attorney initiated his cross-examination as follows:
Q How long have you known this Defendant, your step father?
A Approximately 11 years.
Q As I understand it, you are telling the ladies and gentlemen of the Jury, he is just the kind of man that would not do this thing; is that right?
A Yes, sir.
Q He is the kind of man who would not steal a car and take it across the state line; it is that correct?
A Yes, sir.
Q And he is certainly the kind of man who would not forge items like you have in front of you there; is that correct?
A Yes, sir.
Q He just wouldn't do that?
A No, sir.
Q (By Mr. Miller) Mr. Tull, did you know that your step father in 1942 in Del Rio, Texas, in the Federal Court there was convicted of the Dyer Act, which is transporting motor vehicles across the state line, and was sentenced to two years in the Federal Reformatory?
A I knew he had been in prison, but I did not know why.
Q Mr. Tull, did you know that your step father in October of 1961 was convicted of Dyer Act, which is transporting a motor vehicle across the state line in Los Angeles, California, and was sentenced to five years in the Federal Penitentiary?
A No, sir, I did not know about that.
Q Mr. Tull, did you know that your step father was convicted in November of 1950 in Sacramento, California, of two separate counts of Forgery and was convicted and sentenced to a term of 1 to 14 years on each one of those counts?
A No, sir.
Q Mr. Tull, did you know that your step father was convicted in February of 1962 of Interstate Transportation of Forged Securities in Federal Court in Fort Worth, Texas that is wrong. It would have been in California that he was convicted, but he was sentenced at that time to another five years in the Federal Reformatory and he was in a Reformatory in Fort Worth, Texas. Did you know that?
A No, sir.
Q Now let me ask you this: Do you think your step father is capable of stealing cars and taking them across the state line?
A Sir, for the 11 years that I have known him, I would say no.
Q Do you think your step father is capable of forging documents like you have got right there in front of you?
A I would say no.
After Tull, defendant's wife also appeared as a witness and was asked upon direct examination about Gilliland's previous criminal "trouble," of which she acknowledged some knowledge. The prior convictions were probed again in cross-examination of Mrs. Gilliland. Defendant Gilliland himself later took the stand and attempted to explain the convictions to which previous references had been made.
The judge's jury instructions referenced the criminal record evidence only in the following terms:
Evidence has been permitted to come before you in this case tending to show, if you believe it to be true, that the Defendant may have committed or participated in the commission of other and distinct offenses from one charged in the indictment. In this connection you are reminded that your verdict in this case must respond only to the specific charge set forth in the indictment and that a person may not be convicted of one offense by evidence tending to show that he may have committed or participated in the commission of other offenses. Such evidence as may have tended to show the commission of other offenses was admitted for the purpose of establishing, if same does establish, a plan, scheme or design to commit the specific offense charged in the indictment or to establish unlawful intent, if in the judgment of the jury same does tend to establish such. Furthermore, if you believe that the Defendant has been heretofore convicted as claimed by the prosecution, then you may, in your discretion, consider the same as such facts may or may not, in your judgment, affect the weight and credit which you will give to the testimony of the Defendant. A person may not be convicted of one offense or crime by any proof tending to show that he may or may not have been convicted of another offense.
No objection was made to the jury instructions at the time of trial, but it was raised in this Court as "plain error" requiring reversal.
Although defendant's appeal is predicated upon the Billy Tull cross-examination quoted above, its effect upon the presentation of the defendant's case, and the jury instructions, we note one other item deserving of our consideration under the "plain error" doctrine. Following the questioning of Billy Tull excerpted above, the government prosecutor made the following inquiry of Tull:
Q Could you tell me why if you were really in a bar in Texhoma, Oklahoma, and watched your step father purchase a car, why wouldn't your step father when questioned by the FBI agent tell the FBI agent that?
Q (By Mr. Miller) Do you know why he wouldn't tell the FBI agent that?
A No, sir, I do not know why he would tell the FBI agent that.
Q Do you live in Denver?
A Boudler, (sic) Colorado.
Q You live in Boulder?
A Yes, sir.
Q Do you know why your step father would tell the FBI agent that you lived in Denver?
A No, sir, I don't know why he would tell them that.
Q Do you know why he would tell the FBI agent that he didn't have any idea how to get in touch with you, didn't know anything other than who you were and you lived in Denver?
A I have a pretty good idea.
A Because he is not his lawyer. He is not trying to help him. He is trying to hurt him. So in my opinion, I would have done the same thing.
Q How is that going to hurt your father to tell the truth about where he was?
A I don't know.
Q Well, you just said that it would hurt him. I would like to know how it could hurt him. I don't know how it could do anything but help him.
The government attempts to justify its inquiry into the criminal convictions on grounds that Tull was testifying as to the character of the defendant. The general rule is, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Fed.R.Evid. 404(b). The rationale for this exclusionary rule is well-stated by Mr. Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 218-219, 93 L.Ed. 168 (1948):
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469 but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy is excluding such evidence, despite its admitted probative value, is the practical...
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