United States v. Fox, 71-1613.

• Decision Date: 14 November 1972
• Docket Number: No. 71-1613.,71-1613.
• Parties: UNITED STATES of America v. Conrad FOX, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

154 US App. DC 1, 473 F.2d 131 (1972)

UNITED STATES of America v. Conrad FOX, Appellant.

No. 71-1613.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 1972.

Decided November 14, 1972.

Mr. Eugene L. Stewart, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert D. Zsalman, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry, Asst. U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee. Mr. Thomas A. Flannery, U. S. Atty. at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellant Conrad A. Fox seeks reversal of his conviction of armed robbery¹ and assault with a dangerous weapon² on essentially four grounds. First he asserts that prejudicial error was committed when the District Court ruled that the Government could ask a defense character witness questions concerning Fox's arrest for rape. Second Fox claims that reversal is compelled because the prosecution's main witness was permitted to testify that she had identified Fox at a pretrial lineup where he was allegedly not represented by counsel. Third Fox argues that, even apart from the question whether he had representation at the lineup, the lineup was arranged in such a suggestive fashion that his right to due process was violated and testimony concerning the lineup should have been excluded for that reason. Finally Fox argues that his in-court identification was so tainted by the lineup identification that it should have been excluded as well.

In Part II of this opinion we show that the trial court's ruling concerning the allowable scope of cross-examination of the character witness was erroneous. As a result of that ruling Fox's trial attorney did not offer the witness. Since the trial centered around a conflict of testimony and credibility among Fox, three alibi witnesses, and the victim of the robbery, the District Court's ruling and its by-product — trial counsel's understandable reluctance to offer the character witness — were clearly not harmless. Thus we are compelled to reverse Fox's conviction and to remand the case to the District Court for new proceedings. In any new trial that is held, witnesses attesting to Fox's reputation in his community for truth and veracity, the quality concerning which the character witness was to testify, may not be cross-examined about Fox's arrest for rape. On remand prior to trial, the District Court should hold a hearing to develop the facts and to make findings concerning the presence or absence of counsel at the lineup³ as well as its suggestiveness. If the evidence indicates substitute counsel represented Fox at the lineup, the District Court's findings should make clear the circumstances surrounding his appointment and the adequacy of his representation.⁴

I

The only eyewitness against Fox was Mrs. Annie F. Howard, the counter clerk at Stanley's Cleaners, 424 15th Street, N.E., Washington, D.C., at the time of the robbery. She testified that at approximately 12:30 P.M. on October 14, 1970, appellant entered the cleaning store with a pair of pants over his arm. After Mrs. Howard had written up a ticket-receipt for the pants, the customer, who used the name "Brooks," asked her to look for some pants he said he had deposited under that name for laundering the previous November. When Mrs. Howard indicated her surprise at the lengthy time lag, the customer quickly said, "No, I mean May." Mrs. Howard then went to the conveyor belt to look for pants under the name "Brooks." Unsuccessful, she returned to the counter. The customer, now holding a silver-finished hand gun, told her to open the cash register. After Mrs. Howard complied the customer reached in, removed approximately $12 to $15, and then left the store with the pants he had brought in and the ticket Mrs. Howard had written out. The intruder tore up the ticket and discarded it as he left the store. Mrs. Howard testified that the intruder was in the cleaning shop for approximately six to eight minutes, that the lighting was bright, and that she had a good opportunity to observe his features.

Mrs. Howard also testified that while she was looking for the pants the customer had asked about she recalled thinking she knew the customer from another Stanley's Cleaners shop at 23 15th Street, N.E., where she had worked previously. Although she did not at the time recall the customer's name, she testified that she knew at the time of the robbery that his name was not Brooks. William Stanley, Sr., her employer, testified that Fox had been a customer of the "No. 23" store and that he knew the Fox family.

Mrs. Howard also testified at trial to her participation in pretrial identification proceedings which led to Fox's arrest and indictment. On the day of the holdup she gave Detective Michael Guarneiri of the Metropolitan Police Department a description of the intruder: that he was black, of medium height and build, that he had a "medium-type bush" haircut, and that he wore a floral print shirt and dark pants. Detective Guarneiri indicated that Mrs. Howard's initial description was somewhat more specific: that she said the intruder was approximately five feet, seven inches tall, weighed between 130 and 140 pounds, was in his late teens or early 20's, dark complexioned, and had large almond-shaped eyes. Later on the day of the robbery, Mrs. Howard went to the headquarters of the Robbery Squad where, at Detective Guarneiri's behest, she looked through approximately 100 photographs. At this time she made no positive identification, although she said that one of the pictures, while not that of the intruder, bore a close resemblance to him. The only other evidence the police received the day of the robbery was the sales slip written out to "Brooks" before the robbery. Neither the ticket the robber discarded nor the countertop which he was said to have touched was finger-printed.

Fox was not identified until November 5, when Detective Guarneiri went to the cleaning shop and showed Mrs. Howard 10 photographs. After looking at them one at a time, she positively identified either the fourth or the fifth as that of the robber.⁵ On November 14 Fox was arrested and charges were filed accusing him of the holdup. Mrs. Howard picked Fox out as the robber from a 10-man lineup held on November 19. At trial she testified to both the photographic and the lineup identifications.

Opposing Mrs. Howard's testimony — her recollections of the robbery, her recollections of subsequent photographic and lineup identifications, and her courtroom identification of Fox — were Fox himself, who took the stand, and three alibi witnesses. Fox testified that he spent virtually the entire day of October 14, from approximately 8:30 A.M. to the evening when he attended a concert, at the home of his girl friend, Cheryl Thomas. Fox and Miss Thomas each testified that they left her home for approximately 45 minutes around noon to get a carry-out lunch from a nearby McDonald's. Fox testified that they returned some time between noon and 12:30 P.M., and Miss Thomas recalled the time of their return to her house as 12:30 P.M. Two of Miss Thomas' friends, Della Russell and Vaughnetta Paige, testified that together they visited Miss Thomas at her home that afternoon and that Fox was present. Miss Russell said they arrived at 12:05 P.M. and Miss Paige said their time of arrival was 12:25 P.M. But both agreed that Fox was at the Thomas home at 12:30 P.M., the alleged time of the robbery.

Since the trial consisted in large part of the conflicting testimony of Mrs. Howard and Fox, backed by his alibi witnesses, the Government's attorney sharply attacked the alibi witnesses' testimony for its inconsistencies and for its allegedly memorized quality. The prosecutor then pointed out that the jury's main task was to assess the credibility of Fox and his supporting witnesses as against Mrs. Howard's recollection and identifications. Yet on the vital issue of his credibility, because of an erroneous ruling by the District Court Fox was unable to present character witnesses attesting to his reputation in the community for truth and veracity. Before the trial began, the District Court ruled that the proposed character witness for Fox — a Roman Catholic nun who knew him from his place of employment — could be asked on cross-examination whether she had heard of Fox's arrest for rape that was alleged to have occurred between his arrest and trial.

II

Our criminal law theory rejects the concept of "good men" and "bad men." The primary article of faith of our criminal law is that before a man can be stigmatized as a criminal he must be charged with, and proved guilty of committing, a specific criminal act. His general predisposition toward crime or bad reputation cannot be used against him at his trial.⁶ The defendant himself, however, may, if he chooses, offer evidence of his good character by presenting witnesses attesting to his reputation in his community.⁷ In some circumstances that evidence in itself may be sufficient to raise a reasonable doubt as to his guilt and the jury must be so instructed.⁸ Moreover, a defendant in offering evidence of good character may limit that evidence to a specific character trait. Rather than offer evidence of his general reputation as a law-abiding citizen, for example, the defendant may, as appellant did here, limit his offer to the specific trait of truth and veracity. And when the defendant so limits his offer, the prosecution is likewise limited in its response.⁹ Otherwise evidence of general disposition to commit crime could be introduced, through cross-examination or in rebuttal, and the defendant might be convicted of being a "bad man" in the eyes of the jury rather than of the crime for which he is...