United States v. Baber

• Decision Date: 16 November 1971
• Docket Number: No. 24289.,24289.
• Citation: 145 US App. DC 98,447 F.2d 1267
• Parties: UNITED STATES of America v. Ollie BABER, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

145 US App. DC 98, 447 F.2d 1267 (1971)

UNITED STATES of America v. Ollie BABER, Jr., Appellant.

No. 24289.

United States Court of Appeals, District of Columbia Circuit.

July 19, 1971.

Certiorari Denied November 16, 1971.

Mr. Samuel H. Depew, Washington, D. C. (appointed by this court) was on the brief for appellant. Mr. Charles T. Kappler, Washington, D. C. (appointed by this court) also entered an appearance for appellant.

Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and Julius A. Johnson, Asst. U. S. Attys., were on the brief for appellee. Mr. Henry F. Greene, Asst. U. S. Atty., also entered an appearance for appellee.

Before LEVENTHAL, ROBB and WILKEY, Circuit Judges.

Certiorari Denied November 16, 1971. See 92 S.Ct. 324.

PER CURIAM:

The simple facts are these. The victim and complaining witness was accorded a ride in a car driven by appellant and in which another man was riding. Instead of dropping the new passenger at his desired disembarkation point, the pair took the victim to a lonely spot and proceeded at gunpoint to dispossess him of all valuables. The victim identified appellant by examining the police collection of protographs. Appellant was apprehended, and after trial convicted of robbery,¹ from which he appeals.

Appellant's points are relatively clear-cut and the answers equally so. We discuss them only because this case was decided without oral argument, and it is so representative of the type case heard solely on the briefs under our screening program eliminating oral argument in some cases, a procedure which has been challenged by appellant here.

1. Appellant's principal defense witness² Williams was impeached both by admission in evidence of a robbery conviction of 1967 and a contradictory statement given to a police officer less than 24 hours before. The trial court properly held a discussion at the bench over the application of the Luck rule. The appellant argues that the Luck ruling permitting use of the 1967 robbery conviction was erroneous, because "the witness, Mr. Williams, was convicted of robbery in 1967 and not upon a crime of dishonest conduct." We had always assumed that robbery demonstrates some traces of dishonesty, involving as it does an intent to steal, thus permitting its use for impeachment.³ While we have frequently cautioned that the trial judge must weigh carefully the possible prejudice to the accused when the accused is the witness and the previous conviction used for impeachment purposes is the same crime as that of which the accused is presently charged, the rule requiring judges to avoid the prejudice to a defendant-witness through impeachment by similar crimes does not involve the same prejudice, of possible conviction, or require the same special efforts, in the case of witnesses who are not on trial.⁴

Furthermore, while on this appeal appellant was entitled to the standard of admissibility in effect in this Circuit at time of trial, as a cautionary note for the future we point out that since 1 February 1971 admissibility of previous convictions for impeachment purposes, whether the witness is the accused or another, has been governed by statute, which in relevant part provides:

* * * for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered * * * if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment).⁵

On any remand for new trial, which appellant seeks, the trial court would at this time apply the new statute.

2. The prosecution had taken the precaution of interviewing the prospective defense witness Williams in the cell-block the night before. When Williams testified that the complaining victim was a dope pusher, the police officer was called to the stand, testified as to his conversation with Williams, and in the interest of accuracy read the questions and answers of his interview the night before, in which the witness Williams had squarely stated that he had never seen or known of the complaining witness selling dope to anybody. Appellant's counsel argues that because the Q & A statement, copy of which was given to appellant's trial counsel, was marked as a government exhibit for identification, it was therefore admitted in evidence and available to the jury. Appellant cites no record evidence whatsoever that the document itself was ever offered in evidence, and the Government flatly denies that it was. There is quite a distinction between a document being marked for identification in order that a witness may be questioned about it, and, on the other hand, the document itself being offered, admitted in evidence, and permitted to go to the jury. There was no objection at the trial to the police officer's reading the questions and answers, which he testified were taken directly verbatim from his notebook.

3. Appellant also claims error in the instructions of the trial judge in defining "reasonable doubt." This instruction was couched in language identical with the recommended model instruction of the District of Columbia Junior Bar Association, which has been approved by this court in several cases.⁶ While we do not of course rule that this model instruction is applicable verbatim to every case, it was here. Furthermore, appellant's trial counsel did not object or comment regarding this charge; thus under Fed.R. Crim.P. 30 the point is not available on appeal.⁷ This is not a case of plain error affecting substantial rights.

4. As a final point appellant urges that the evidence was insufficient and that the court should have ruled sua sponte for acquittal at the end of the Government's case. The only issue in the trial appears to be the question of credibility of the witnesses, which is clearly for the jury. The victim testified he had been robbed at gunpoint; the defendant admitted he gave the complaining witness a ride but denied robbing him. Again, no motion for an acquittal was made by appellant's trial counsel at the close of the Government's case nor at the close of all the testimony. This point is not available on appeal.⁸

5. We have discussed the above simple points at some length to show why we did not consider oral argument warranted in this case. Pursuant to our practice in this jurisdiction, the briefs and record were studied by the panel of three judges assigned. The panel unanimously agreed that the issues raised did not merit oral argument and appellate counsel was therefore notified that under General Rule 11(e) the case was removed from the argument calendar. Counsel filed a motion to reconsider our order, which motion is provided for by Rule 11(e), and asked that the case be restored to the calendar.

Appellant's counsel did not urge upon us any new matter not covered in his original brief and reply brief, nor did he shed further light as to why oral argument would be beneficial on the points already raised. His assertion in effect is that appellant has an absolute right to oral appellate argument under the Fifth Amendment to the Constitution and those Supreme Court decisions dealing with the "critical stages" of the criminal process.⁹

We do not derogate the importance that oral argument may have in many, perhaps most, cases; but there are cases in which it is reasonably certain from the record and the briefs of the parties that no useful purpose would be served by devoting the court's time and that of both prosecution and defense counsel to an oral hearing. This case is clearly one of that type. And, contrary to argument of appellate c...