U.S. v. Pavon, 77-1737

• Citation: 561 F.2d 799
• Decision Date: 27 September 1977
• Docket Number: No. 77-1737,77-1737
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph PAVON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 799

561 F.2d 799

UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph PAVON, Defendant-Appellant.

No. 77-1737.

United States Court of Appeals, Ninth Circuit.

Sept. 27, 1977.

Paul G. Gillingham, Seattle, Wash., argued for defendant-appellant.

David E. Wilson, Asst. U. S. Atty., Seattle, Wash., argued for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and KILKENNY, Circuit Judges, and SKOPIL, ^* District Judge.

DUNIWAY, Circuit Judge:

Pavon was convicted of conspiracy to distribute and of aiding and abetting in the distribution of cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). He appeals from that judgment. We affirm.

The sole issue is whether the appearance of Pavon's probation officer as a prosecution witness was reversible error, when alternative methods were available for establishing the substance of his testimony.

I.

Tucker, Pavon's probation officer, testified before the jury as follows:

Q. Mr. Tucker, what is your occupation?

A. United States probation officer.

Q. Do you know the defendant, Robert Joseph Pavon?

A. Yes.

Q. The man you know as Robert Joseph Pavon, is he in the courtroom today?

A. Yes, he is right behind you.

Q. Did Mr. Pavon report to you what his occupation was in March of 1975?

A. He reported that he was a salesman for a booking agency.

Q. And did he tell you where that booking agency was located?

A. It was on Roosevelt Way Northeast, I believe, 5220.

Q. And where would that address be in relation to O'Banion's Tavern?

A. As I recall, it is right behind O'Banion's.

Q. Through your association with Mr. Pavon, did he tell you how much money he was earning legitimately through that business in March and April of 1975?

A. He was reporting approximately $300 per month.

Q. That would be total income for that period of time?

A. That is the way it was reported, as gross income.

MR. MEYERSON: I have nothing further.

MR. GILLINGHAM: I have no questions.

THE COURT: You are excused, sir.

(R.T. at 53-54)

After the noon recess which immediately followed, Pavon's attorney moved to strike Tucker's testimony on the grounds that it was not relevant and was highly prejudicial because it implied to the jury that Pavon was on probation and thus had a prior criminal record. After Pavon stipulated that he was employed at "Good Lookin' Bookin' " and that in March, 1975, he was earning $300 per month, the trial court struck Tucker's testimony and told the jury to disregard it. ¹ After all the evidence had been presented, defense counsel moved for a mistrial based on the prejudicial effect of the testimony despite the court's prior ruling and cautionary instruction. That motion was denied.

It will be noted that when Tucker took the stand and testified, there was no objection by Pavon's counsel. Thus we can hardly hold that error was committed by the court at that time. It is not error, except in most unusual circumstances, to admit evidence to which no objection is made. Also, it was not error to strike the testimony and tell the jury to disregard it. Short of granting a mistrial, there was nothing else that the judge could do. Thus the only question before us is, was it error to deny the motion for a mistrial?

II.

The government argues that Tucker's testimony was not prejudicial because he did not identify himself as Pavon's probation officer, and did not testify that Pavon was on probation. He merely stated that his occupation was that of a United States Probation Officer. However, he also testified that Pavon "reported" his occupation, where he worked, and what salary he received. From that testimony the jury could readily infer that Pavon had a prior criminal conviction.

Direct evidence of a defendant's past crimes is not admissible unless (1) it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of motive or accident, F.R.Evid. 404(b), or (2) the defendant has placed his character in evidence by testifying, F.R.Evid. 404(a) (1), and the probative force of the evidence outweighs any danger of unfair prejudice, F.R.Evid. 403. See, e. g., Burg v. United States, 9 Cir., 1969, 406 F.2d 235. In this case, none of the exceptions stated in Rule 404(b) apply, and Pavon did not place his character in issue in any way.

If direct evidence of Pavon's prior conviction could not have been introduced, then evidence pointing strongly to an inference to the same effect should also be excluded. Thus, testimony that Pavon was on probation would not be admissible. Smith v. Rhay, 9 Cir., 1969, 419 F.2d 160, 164. See also, United States v. Calhoun, 6 Cir., 1976, 544 F.2d 291, 296.

In United States v. Butcher, 9 Cir., 1977, 557 F.2d 666 at 670, we recently stated "that use of lay opinion identification by policemen or parole officers is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution." Although that case dealt with identification by (among others) a parole officer, the underlying principle applies in this case. Here it would seem that the prosecution could have presented the same evidence without calling the parole officer as a witness. ² Indeed, Pavon was even willing to stipulate, and did stipulate to the substance of the officer's testimony. ³

We think that, in any criminal case in which the government proposes to put a defendant's probation or parole officer on the stand, the government should, as soon as it knows that it intends to call the witness, so advise the court and defense counsel. The court should then, if asked to do so, permit the defense to object in the absence of the jury. In this way it may be possible to handle the testimony in such a manner that the jury will not know that the witness is a probation or parole officer, or to arrange for similar testimony by another witness, or to substitute a stipulation as in this case. If the value of the testimony does not outweigh its probable prejudicial effect, and if there is no other way for the government to present it, the court can exclude it entirely. Prosecutors who fail to heed these suggestions will run a serious risk of reversal.

III.

The remaining question is was the error, if it was error, harmless? We conclude that it was.

The court, upon defendant's motion, strongly instructed the jury to disregard the testimony of Tucker. (Note 1, supra ) When the court strikes testimony and gives such an instruction, there is a strong presumption that the jury has followed the court's instruction. See, e. g., Robison v. United States, 9 Cir., 1967, 379 F.2d 338, 345. When, at the conclusion of the trial, Pavon moved for a new trial on the ground that Tucker's testimony was unduly prejudicial, the judge denied the motion, saying:

He (Tucker) described his work as a United States probation officer. He did not say that he received that information in that capacity. When you add that fact to my admonition to the jury, there is no question but what they can wipe it from their minds.

The judge's estimate of the probability of undue prejudice is entitled to great weight.

Moreover, we are not persuaded by...