U.S. v. Johnson

• Citation: 610 F.2d 194
• Decision Date: 06 December 1979
• Docket Number: No. 77-1430,77-1430
• Parties: UNITED STATES of America, Appellee, v. Leon JOHNSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 194

610 F.2d 194

UNITED STATES of America, Appellee, v. Leon JOHNSON, Appellant.

No. 77-1430.

United States Court of Appeals, Fourth Circuit.

Argued July 10, 1979.

Decided Dec. 6, 1979.

Herbert W. Louthian, Columbia, S.C., for appellant.

Lionel S. Lofton, Asst. U.S. Atty., Charleston, S.C. (Thomas E. Lydon, Jr., U.S. Atty., and Thomas P. Simpson, Asst. U.S. Atty., Columbia, S.C., on brief), for appellee.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

Leon Johnson, together with his co-defendant, J. Paul Scott, was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and § 2. Johnson and Scott were tried jointly and a third defendant, Donald Anderson, testified against them under a grant of immunity pursuant to a plea bargain. Upon appeal, Johnson contends that Anderson's response to a question put to him upon cross-examination improperly put Johnson's character in issue, and that the trial court committed reversible error in denying his motions for a mistrial or severance.

In September of 1978, three masked bandits robbed a branch of the Spartanburg Bank and Trust Co. in Spartanburg, South Carolina. At the trial of Johnson and Scott, Anderson testified that he was one of those three. He identified defendants Johnson and Scott to be the others involved in the robbery. He testified extensively as to the planning and preparation for the robbery and also the events involved in the robbery itself. His story was corroborated by the witnesses to the robbery and by others. Paraphernalia used in the robbery had been found much as Anderson had described. Since the three men wore ski masks, coveralls, and gloves, no identification of Johnson was made by any witness other than Anderson. His testimony, therefore, was of much importance to the government.

Neither Johnson nor Scott testified. During the cross-examination of Anderson, Scott's counsel asked the following question and received the following response:

Q. All right. Now Mr. Anderson, when you robbed the bank at Taylorsville, Georgia, who was with you?

A. Leon Johnson and Melvina Satterfield and Charmane Garrett.

Counsel for Johnson immediately moved for a mistrial or, in the alternative, a severance, alleging that the response to the question was too prejudicial to be cured by an instruction to the jury. After a hearing outside the presence of the jury, the trial court denied the motions. The trial court then gave an extensive instruction to the jury, admonishing them to disregard that part of Anderson's testimony. ¹

It is, of course, well settled that only a defendant can put his character into issue in a criminal trial. ² Closely akin to that broad concept is the widely accepted rule that evidence of other crimes not charged in the indictment is not admissible as part of the case against the defendant. ³ The rule has many exceptions, ⁴ but we find it unnecessary to venture into this troublesome area since, in our opinion, the dispositive question on this appeal is whether the district court abused its discretion in denying Johnson's motions. The basic principle was stated in the landmark case of Throckmorton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 480, 45 L.Ed. 663 (1901):

The general rule is that if evidence which may have been taken in the course of a trial be withdrawn from the consideration of the jury by the direction of the presiding judge, that such direction cures any error which may have been committed by its introduction. * * * But yet there may be instances where such a strong impression has been made upon the minds of the jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the general objection may avail on appeal or writ of error. (Citation omitted)

Whether prejudicial error has been committed must be determined on the basis of the record in its entirety and the result will generally turn on the facts of each case. The record before us discloses that the Government solidly proved its case against Johnson with evidence which was both admissible and convincing, and viewed in the context of the entire trial, the strong curative instruction of the district judge was sufficient to dissipate whatever small amount of prejudice may have been created by the reference to the Georgia robbery.

While we have reversed convictions in cases where evidence of other crimes had been improperly presented, ⁵ in those cases the inadmissible evidence was not only prejudicial, but had been purposely introduced by the prosecution. Here, the question was posed by counsel for Johnson's co-defendant, and neither the question nor the response carried the imprimatur of the Government. Absent such misconduct on the part of the Government counsel, the courts generally have discerned no reversible error where the trial court has acted promptly in sustaining an objection and advising the jury to disregard the testimony. See, United States v. Works,526 F.2d 940 (5 Cir. 1976); Brown v. United States, 380 F.2d 477 (10 Cir. 1967), Cert. den., 390 U.S. 962, 88 S.Ct. 1062, 19 L.Ed.2d 1158 (1967); Atkinson v. United States, 344 F.2d 97 (8 Cir. 1965), Cert. den., 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106 (1966).

Since we perceive no abuse of discretion by the district court in denying Johnson's motions, the judgment of conviction is affirmed.

AFFIRMED.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent because I believe the error committed was so harmful to the defendant that a curative instruction could not be said with fair assurance to have erased the prejudice.

I disagree with the majority's reasoning that the cause of the error in admitting the evidence is the key to reviewing the question of determining whether a new trial is warranted. The majority opinion at least implicitly, and probably expressly, holds, I think, that the error here was not fatal because the prejudicial evidence was not introduced by the prosecution. Had the prosecutor asked the fatal question, the majority opinion indicates it would hold exactly opposite of the holding today. ¹

As the majority notes, it is well settled that only a criminal defendant can put his good character into issue at trial. Although a defendant's character may seem relevant when determining guilt or innocence, such evidence has historically been kept out of a criminal trial for fear that a jury would place too much emphasis on the defendant's bad character and convict on that basis rather than on the evidence produced at trial. As the Court stated in Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077 (1892), "(h)owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged." Significantly, the Court at no place in the opinion discussed the fact that the government introduced the evidence as a reason for its holding.

Again as noted by the majority, closely akin to that broad concept, and as an outgrowth therefrom, is the widely accepted rule that evidence of other crimes not charged in the indictment is not admissible as part of the case against the defendant. This rule has many exceptions, none of which are relevant to our discussion here. I suggest, however, that while a criminal defendant may in certain circumstances open the door to inquiry about other offenses such as by taking the witness stand and testifying, or by offering evidence of good character, that is not the case here. Johnson did neither. Therefore, as Boyd states, he was entitled to a trial absent proof of other offenses he may have committed.

In Lovely v. United States, 169 F.2d 386 (4th Cir. 1948), this court reversed a rape conviction, holding that it was reversible error to allow the prosecution to introduce evidence of a prior rape that the defendant allegedly committed 15 days prior to the crime charged. Relying upon the vast and uncompromising history in this area of the law, this court reaffirmed the general rule that evidence of other crimes not alleged in the indictment is not admissible to show the defendant's guilt as to the crime charged. After finding the exceptions to this rule did not apply, the court concluded that "(h)ence, the evidence is ordinarily irrelevant, while at the same time its admission would necessarily operate to so prejudice a jury against a defendant as that in a doubtful case it might control the verdict." Lovely at 389. Further, the court noted that this is not merely a technical rule of law but instead "arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence." Lovely at 389. The court did not give as any reason for reversal the fact that the government had introduced the evidence.

In United States v. Harris, 331 F.2d 185 (4th Cir. 1964), we held it was plain error under FRCrP 52(b) to instruct as to reputation for criminal activity erroneously admitted over objection.

Again, in Watkins v. Foster, 570 F.2d 501 (4th Cir. 1978), this circuit considered the issue at hand and there upheld habeas corpus relief to a defendant whose state court trial had been tainted by insinuating questions concerning prior burglaries. There, we went so far as to rule that such prejudicial evidence deprived that criminal defendant of his constitutional rights to a fair trial under the Fourteenth Amendment to the Constitution. While the question of the prosecutor's good faith was at issue, we reasoned: "Foster ha(d) a right to be tried on this scarce evidence (without that of other burglaries) alone."

Past cases in this circuit which have considered the question apparently have done so in the factual setting of the absence of a corrective instruction by the trial court. They have uniformly held the evidence inadmissible. E. g. United States v....