U.S. v. Reese, 77-5189

• Decision Date: 30 December 1977
• Docket Number: No. 77-5189,77-5189
• Citation: 568 F.2d 1246
• Parties: 2 Fed. R. Evid. Serv. 871 UNITED STATES of America, Plaintiff-Appellee, v. Willie Thomas REESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1246

568 F.2d 1246

2 Fed. R. Evid. Serv. 871

UNITED STATES of America, Plaintiff-Appellee, v. Willie Thomas REESE, Defendant-Appellant.

No. 77-5189.

United States Court of Appeals Sixth Circuit.

Argued Oct. 18, 1977.

Decided Dec. 30, 1977.

Timothy W. Woods, Jones, Obenchain, Johnson, Ford, Pankow & Lewis, South Bend, Ind., for defendant-appellant.

Frank S. Spies, U. S. Atty., J. Terrance Dillon, Grand Rapids, Mich., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, ENGEL, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This is an appeal by Willie Thomas Reese, defendant-appellant, from his conviction in the United States District Court for the Western District of Michigan, on a charge of receiving and concealing stolen property transported through interstate commerce, in violation of Section 2315, Title 18, U.S.C. ¹ The appellant was tried and found guilty by a jury. He was sentenced to four years imprisonment which sentence was suspended on condition that he comply with certain requirements under probation for four years.

The alleged stolen property consisted of a load of plywood and some special order boards stolen from the Weed Lumber Company of Bristol, Indiana, on the night of September 30, 1976 and valued at $14,000. It was purchased by the appellant for $2,500. He claimed that he did not know it was stolen. There was sufficient evidence of the guilt of the appellant introduced at the trial to sustain the guilty verdict of the jury. No question is raised as to the sufficiency of the evidence.

During appellant's trial, four character witnesses were called on behalf of the appellant, who testified to his good character, his reputation for truthfulness and trustworthiness. On cross examination they were asked if they were aware or had heard that, during 1971, 1972 or 1973, Mr. Reese was buying stolen merchandise. They answered in effect that they had not heard such information. No objection was made to these questions. Neither is there a specific issue raised to this cross examination in the appellant's brief. In passing, we hold that the better practice would have been for the trial judge to have had a voir dire examination to determine whether there were actually such rumors before permitting the cross examination. This would avoid any random shots to the prejudice of the appellant. Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Since there was no objection to the questioning, the trial judge appropriately did not see the need of an independent examination. We find no error in this cross examination. Fed.R.Evid. 404(a); Michelson v. United States, supra; United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976).

One of the claims made on behalf of the appellant is that the trial judge erred in permitting extrinsic evidence of the appellant's prior bad acts to be introduced for the purpose of attacking his credibility.

The appellant testified in his own behalf. During his direct examination he denied knowing that the plywood in question was stolen and also testified that he never knowingly dealt in stolen property. On cross examination he was asked if he ever bought stolen property in the years 1971, 1972 or 1973. He denied any such knowledge.

In rebuttal, however, the government called Sherman Vasvary and Michael McCann as witnesses. These witnesses testified that in 1972 and 1973 they committed numerous burglaries in the Elkhart, Indiana area at the behest of the appellant and then sold the property thus acquired to the appellant. They further testified that they had sold stolen property to the appellant in the years 1971, 1972 and 1973. The defense made no objection to this rebuttal testimony.

We hold that the trial court's allowance of the cross examination of appellant with reference to past instance of dealing in stolen property and the allowance of the rebuttal testimony thereto were proper exercises of the trial court's broad discretion. See, United States v. Dudek, Case No. 76-2537, 560 F.2d 1288 (6th Cir. 1977); United States v. Czarnecki, 522 F.2d 698, 702 (6th Cir. 1977), cert. denied, 431 U.S. 939, 97 S.Ct. 2652, 53 L.Ed.2d 257 (1977); United States v. McFadyen Snider, 552 F.2d 1178, 1183 (6th Cir. 1977); Fed.R.Evid. 404(b), Advisory Committee Note. This testimony was competent, not for the purpose of attacking the credibility of the appellant, but for the purpose of showing motive, intent and knowledge. Fed.R.Evid. 404(b); United States v. Dudek, supra; United States v. Czarnecki, supra at 701-702; United States v. McFadyen-Snider, supra, at 1183; United States v. Ailstock, 546 F.2d 1285, 1289 (6th Cir. 1976). It would also show that there was a basis for the cross examination of the character witnesses about their knowledge of appellant's past dealings in stolen property. Michelson v. United States, supra, 335 U.S., at 479, 69 S.Ct. 213.

While no specific assignment of error in appellant's brief addresses trial court's instructions to the jury, the instructions on the subject of the rebuttal testimony now under consideration are closely related to the error claimed by the appellant. We, therefore, consider the instructions. The trial judge charged the jury on the subject of use to be made of the rebuttal testimony as follows:

"In this case each defendant has offered evidence of good general reputation for truth and veracity or honesty and integrity or as a law-abiding citizen, and you as jurors should consider such evidence along with all the evidence in the case. Evidence of a defendant's reputation, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt, since the jury may think it improbable that a person of good character, in respect to those traits, would commit such a crime. Further, in this case the United States Attorney presented certain witnesses in rebuttal to the character witnesses who had testified for the defendant Reese. All evidence so presented in rebuttal by the United States relates solely and only to the issue of good character. (Emphasis added)

"Evidence that an act was done at one time or on one occasion is not any evidence or proof that a similar act was done at another time or on another occasion. That is to say, evidence that a defendant may have committed an earlier act of like nature may not be considered by the jury in determining whether the accused committed any act charged in the indictment.

"The jury should always bear in mind that the law never imposes upon a defendant in the criminal case the burden or duty of calling any witnesses or producing any evidence.

"You, as jurors, are the sole judges of the credibility of the witnesses and the weight that their testimony deserves. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified and every matter in evidence would tend to show whether a witness is worthy of belief. Consider each witness' intelligence, motive, state of mind and demeanor and manner while on the stand. Consider the witness' ability to observe the matter as to which he has testified, and whether he impresses you as having an accurate recollection of those matters."

Before giving this instruction, the trial judge asked defense counsel if he had any objection to it. He replied that he had no such objection. We consider erroneous, however, the trial judge's reference in the first paragraph of the quoted instruction to rebuttal witnesses to appellant's character witnesses that "All evidence so presented in rebuttal by the United States relates solely and only to the issue of good character." Evidence of other crimes, wrongs or acts is not admissible on the issue of the character of the accused or the criminal propensity of the accused in order to show that he acted in conformity therewith. Fed.R.Evid. 404(b); United States v. Dudek, supra; United States v. Czarnecki, supra, at 701; United States v. McFadyen-Snider, supra, at 1183.

Such evidence, as stated previously herein, is admissible, if admissible at all, to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Fed.R.Evid. 404(b); United States v. Dudek, supra; United States v. Czarnecki, supra, at 701-702; United States v. McFadyen-Snider, supra at 1183; United States v. Ailstock, supra at 1289; United States v. Ring, 513 F.2d 1001, 1004 (6th Cir. 1975).

Appellant's character evidence could only have properly been rebutted by the testimony of other witnesses as to the bad reputation of appellant unless appellant's character or a trait thereof had been an essential element of the charge against appellant or his defense thereto. Fed.R.Evid. 405(a) and (b).

While the instruction relative to use of the rebuttal testimony, therefore, was error, the rest of the charge is proper and correct. The paragraph,

"Evidence that an act was done at one time or on one occasion is not any evidence or proof that a similar act was done at another time or on another occasion. That is to say, evidence that a defendant may have committed an earlier act of like nature may not be considered by the jury in determining whether the accused committed any act charged in the indictment."

is a correct statement with reference to similar acts of past conduct. It could have gone further and stated that the purpose of such testimony is for the purpose of showing intent, knowledge and absence of mistake, but the statement tends to put the rebuttal testimony in proper perspective.

Rule 30 of the Federal Rules of Criminal Procedure provides:

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."...