U.S. v. Givens

• Decision Date: 29 July 1985
• Docket Number: No. 84-5190,84-5190
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Joseph GIVENS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 574

767 F.2d 574

UNITED STATES of America, Plaintiff-Appellee. v. Joseph GIVENS, Jr., Defendant-Appellant.

No. 84-5190.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1985.

Decided July 29, 1985.

James Asperger, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Carlton F. Gunn, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, ALARCON, and NORRIS, Circuit Judges.

ALARCON, Circuit Judge:

Joseph Givens, Jr. appeals from his conviction for armed postal robbery, in violation of 18 U.S.C. Sec. 2114, and from his sentence of twenty-five years imprisonment pursuant to 18 U.S.C. Sec. 4205(b)(2).

I

Givens seeks reversal on the following grounds:

One. The district court erred in ruling that Givens' prior convictions would be admissible for impeachment purposes if he chose to testify.

Two. The district court erred in allowing an eyewitness to make an in-court identification of Givens after the eyewitness had been exposed to a potentially suggestive pretrial identification procedure.

Three. The district court erred in ruling that the government was not required to disclose to Givens, prior to trial, testimony and exhibits introduced to rebut defense testimony.

Four. The district court erred in failing to dismiss the "armed" count of the indictment for armed postal robbery because the government neglected to include in the indictment an allegation that Givens' gun was loaded.

Five. The district court erred by refusing to consider at sentencing inadmissible polygraph evidence which suggested that Givens was innocent.

We discuss each issue and the facts pertinent thereto under separate headings.

II ADMISSIBILITY OF PRIOR CONVICTIONS

Givens contends that the trial court erred in ruling that evidence of his prior robbery convictions could be used to impeach him if he chose to testify. We review the district court's decision to admit prior convictions as impeachment evidence for an abuse of discretion. United States v. Field, 625 F.2d 862, 871 (9th Cir.1980).

A. Reviewability

At a threshold level, the government argues that Givens did not preserve his right to raise this issue on appeal. Subsequent to the filing of Givens' opening brief before this court, the Supreme Court held that a defendant must testify in order to preserve for review the claim of improper impeachment with a prior conviction. See Luce v. United States, 469 U.S. ----, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). At the time of Givens' trial, the law of this circuit required that the defendant do two things to preserve the issue for review: (1) establish on the record that he will in fact take the stand and testify if his challenged Givens contends that retroactive application of Luce to preclude review of his claim would be fundamentally unfair because he did everything necessary to preserve his right to appeal under the law applicable at the time of his trial. We agree. Although judicial decisions generally apply retroactively, the Constitution does not require retroactive application of a new rule of law. Solem v. Stumes, --- U.S. ----, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984). In determining whether to give retroactive effect to a decision, we consider: (1) whether the decision establishes a new principle of law, (2) whether retroactive application will further or retard the purposes of the rule in question, and (3) whether applying the new decision will produce substantial inequitable results. Barina v. Gulf Trading & Transportation Co., 726 F.2d 560, 563 (9th Cir.1984) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) ).

                prior convictions are excluded, and (2) sufficiently outline the nature of his anticipated testimony so that the trial court and reviewing court can perform the balancing required by Rule 609.   See United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980).    Luce expressly overruled Cook on this point.   Luce, 105 S.Ct. at 463 n. 3
                

In the instant case, Luce establishes a new principle of law which would, if applied retroactively, wreak a substantial inequity by precluding Givens from challenging the admissibility of proof of his prior convictions. Although application of the Luce principle to the present case arguably would further the purpose of the rule by providing the trial court with concrete testimony on which to base its ruling (Luce, supra, 105 S.Ct. at 463), the first and third factors militate so strongly against retroactive application that they outweigh the second factor. See United States v. Portillo, 633 F.2d 1313, 1321-22 (9th Cir.1980), (Cook requirement for preserving right to appeal from ruling on admissibility of prior convictions not retroactively applicable to defendant whose trial was held before Cook was decided), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 1764, 68 L.Ed.2d 241 (1981).

We are mindful of the fact that in a memorandum decision, the Supreme Court has granted certiorari, vacated the judgment of the Eleventh Circuit in United States v. DiMatteo, 716 F.2d 1361 (11th Cir.1983), and remanded for "further consideration in light of Luce v. United States, 469 U.S. ----, 105 S.Ct. 460, 83 L.Ed.2d 443 (1985)." The Supreme Court did not discuss the basis for its brief order. United States v. DiMatteo, --- U.S. ----, 105 S.Ct. 769, 83 L.Ed.2d 267 (1985).

DiMatteo is clearly distinguishable from the facts presented in the record before us. In DiMatteo, when the defendant indicated that he was prepared to call Caldevilla to testify on his behalf, the government advised the court that its cross-examination concerning the witness' participation in an independent drug smuggling conspiracy might cause him to assert his privilege against self-incrimination. Id. at 1365. The district court ruled that the cross-examination would be permitted. The defendant then chose to forego calling Caldevilla as a witness. On appeal to the Eleventh Circuit, DiMatteo argued that the court's ruling was error. The government argued that the alleged error had not been preserved because Caldevilla did not testify. After noting that the issue had not been previously addressed by the Eleventh Circuit, the court held that "error is preserved when evidence is withdrawn following an anticipatory ruling by the trial court." Id. Thus, the defendant in DiMatteo did not rely on the law of the circuit in attempting to lay a foundation for the presentation of the error for appellate review because the issue had not been presented to the Eleventh Circuit.

In the instant matter, Givens faithfully relied on the law of this circuit in making his record before the trial court to preserve the alleged error for appellate review. We believe that it would be grossly unfair to

                apply Luce under these circumstances.  Nothing in the Supreme Court's order in DiMatteo requires us to be unjust.  We do not read the Court's brief remand order in DiMatteo as creating an inflexible rule of retroactivity applicable to all cases without regard to any injustice which might result.  As in Portillo, we refuse to impose subsequently-created requirements for preserving a claim on appeal on a defendant who did all that was necessary to comply with the law applicable at the time of his trial.  By doing so, we avoid " 'the brutal absurdity of commanding a man today to do something yesterday.' "   Portillo, supra, at 1321 (quoting L. Fuller, The Morality of Law 59 (1964) ).  Because Givens did all that was required at the time of trial to preserve his right to appeal on this issue, we hold that Luce is not retroactively applicable to bar his appeal from the district court's ruling on the admissibility of his prior convictions
                

B. Admissibility of Prior Convictions

Givens contends that the district court abused its discretion in ruling that his prior convictions were admissible by failing to make an adequate record of the factors which contributed to the court's decision, and by incorrectly weighing the probative value of the evidence against its prejudicial effect as required by Fed.R.Evid. 609(a)(1). We reject both contentions.

The prior convictions at issue are Givens' 1975 conviction for robbery and his 1976 conviction for attempted robbery and assault with a deadly weapon on a police officer. ¹ The record shows that the trial judge was aware of the requirements of Rule 609(a)(1). He stated that he had considered the five factors set forth in Cook which are relevant when balancing the probative value of a conviction against its prejudicial effect. United States v. Cook, supra, at 1185 n. 8. ² The judge summarized his findings as follows:

[T]here is a prejudicial effect ... [but] credibility here is [an] extremely ... important part of this case ... [including] credibility as to the ... defendant's testimony and his explanation for knowing certain things, as well [as] his alibi.

The district court's summary of its reasons for admitting the evidence of prior convictions meets the requirements imposed by this court. We have found a district court's record adequate where the trial judge states that he performed the balancing required by Rule 609(a)(1). See Portillo, supra, at 1322; see also Field, supra, at 872 n. 6 (fact that the trial court granted defendant's motion in limine to exclude one prior conviction while overruling the motion as to another conviction "amply indicate[d] that ... [the judge] was engaged in the process of balancing"). In Cook, supra, in reviewing the trial judge's ruling that the probative value of admitting evidence of the defendant's prior convictions outweighed the prejudicial effect, we commented as follows [The trial court's] balancing of the respective values contemplated in Rule 609 at best was inarticulate, and at worst revealed that he misconceived the...