United States v. Carter, 72-2073.

• Decision Date: 12 July 1973
• Docket Number: No. 72-2073.,72-2073.
• Parties: UNITED STATES of America v. Charles H. CARTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

157 US App. DC 149, 482 F.2d 738 (1973)

UNITED STATES of America v. Charles H. CARTER, Appellant.

No. 72-2073.

United States Court of Appeals, District of Columbia Circuit.

Argued June 11, 1973.

Decided July 12, 1973.

Nancy Pyeatt, Washington, D. C. (appointed by this Court), for appellant.

Peter C. Schaumber, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.

FAHY, Senior Circuit Judge:

The appeal is from a conviction of robbery in violation of 22 D.C.Code § 2901 (Supp. V, 1972). An identification question is presented, which includes a challenge to the adequacy of the instruction to the jury. No objection to the instruction as given, however, was made at trial. Considering the one given with the evidence as a whole, no plain error affecting a substantial right appears. We accordingly are not required to consider further this phase of the case. Rule 52, F.R.Crim.P.

A more serious problem grows out of the manner in which the Assistant United States Attorney elicited evidence that appellant had been convicted previously of six counts of robbery and assault with a dangerous weapon. Generally, evidence of a prior criminal conviction is not admissible on the issue of guilt, i. e. "that the defendant is by propensity a probable perpetrator of the crime" for which he is being tried. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 216, 93 L.Ed. 168 (1948). Evidence of a prior crime or conviction is admissible for certain limited purposes for which the probative value of the evidence outweighs its prejudicial character:

Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent . . . an element in the crime . . . identity . . . malice . . . motive . . . a system of criminal activity . . . or when the defendant has raised the issue of his character . . or when the defendant has testified and the State seeks to impeach his credibility . . .

. . . . The defendants\' interests are protected by limiting instructions . . . and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence.

Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967); and see, McGautha v. California, 402 U. S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

In this jurisdiction when a defendant testifies in his own behalf, as appellant did in this case, evidence of a prior conviction that qualifies under the terms of our statute, "shall be admitted" "for the purpose of attacking the defendant's credibility." 14 D.C.Code § 305(b) (Supp. V, 1972). This statute, concerned only with the impeachment of a witness, does not purport to permit use of the evidence as proof of guilt. "A basic principle of long standing in our law makes it clear that evidence of one crime is inadmissible to prove disposition to commit crime in general." United States v. Bobbitt, 146 U.S.App.D.C. 224, 227, 450 F.2d 685, 688 (1971).

Because of the possibility that the generality of the jury\'s verdict might mask a finding of guilt based on an accused\'s past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition.

Spencer v. Texas, supra, 385 U.S. at 575, 87 S.Ct. at 660. See also, Boyd v. United States, 142 U.S. 450, 454-458, 12 S.Ct. 292, 35 L.Ed. 1077 (1892).

In permitting evidence of this highly prejudicial character to impeach a defendant when he testifies, our statute furnishes no foundation for its use for any other purpose. Care is thus required to confine it to the permissible purpose, which may be thwarted by the manner in which the evidence is adduced. Not only was the requisite care not exercised in the present case by the prosecutor, the custodian in the first instance of the rule of evidence, but the manner in which he elicited the evidence was calculated to defeat the purpose of the rule. In cross-examining the appellant he proceeded as follows:

Q. The Assistant United States Attorney: And you wouldn\'t rob that man, right? A. I had no reason to rob when I am working.

Q. You wouldn\'t do something like that? A. No, I wouldn\'t.

Q. But in 1968, you were convicted of six counts

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