United States v. Franklin, 72-2141. Summary Calendar.

• Citation: 471 F.2d 1299
• Decision Date: 16 January 1973
• Docket Number: No. 72-2141. Summary Calendar.,72-2141. Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas W. FRANKLIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

471 F.2d 1299 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas W. FRANKLIN, Defendant-Appellant.

No. 72-2141. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 16, 1973.

Melvin E. Thompson, Jr., Atlanta, Ga. (Court-Appointed), for Henderson.

Charles D. Read, Jr., Decatur, Ga., for Franklin.

John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Thomas Franklin was convicted of possession of goods stolen from an interstate shipment, 18 U.S.C.A. § 659, knowing the merchandise to have been illegally taken.¹ On this appeal he raises the four questions whether the trial judge erred: (i) in his distribution of the peremptory challenges between the two co-defendants, (ii) in permitting the Government prosecutor in cross-examining Franklin's character witnesses to inquire whether they had heard of defendant's prior involvement in a similar crime some years earlier, (iii) in permitting the Government to make such inquiry on cross-examination of the defendant and (iv) in permitting direct proof of the commission of the earlier acts. While we do not agree with the first contention, we do find error as to the third and fourth, and reverse for a new trial.

Peremptory Challenges

Appellant Franklin claims error was committed when the trial court not only refused to grant additional peremptory challenges, but required defendants Franklin and Henderson to exercise their ten challenges separately — five for each. F.R.Crim.P. 24(b) gives the district court wide latitude in determining how the peremptory challenges shall be distributed. The rule plainly allows the trial court to specify whether the challenges are to be exercised separately or jointly. In United States v. Williams, 5 Cir., 1971, 447 F.2d 894, 896-897, we said:

"The limitation of the five defendants to ten peremptory challenges and permitting them to be exercised separately or jointly is in direct compliance with F.R.Crim.P., Rule 24(b). Under that rule the court may (not must) allow additional peremptory challenges where there are multiple defendants."

With such discretion inherent in the rule, there is no basis for faulting the trial court here.

Character Witnesses

The specific crime with which Franklin was charged was the possession of cartons of food products stolen from a trailer, which had itself been removed from a loading yard where it was parked overnight. Franklin, proprietor and manager of a grocery store in Atlanta, Georgia, purchased the food products under suspicious circumstances. Shortly thereafter, the goods were discovered by detectives on the shelves and in the basement of Franklin's supermarket. Franklin's defense to the charge was based on his contention that he had not an inkling that the goods were stolen and, contrary to the appearance of things, the circumstances of purchasing the goods off the back of a truck from unfamiliar vendors, on a Sunday morning, was not unusual in his business.

At the trial of Franklin and his illicit vendor, Henderson, counsel for Franklin called a number of character witnesses in his behalf. Each witness was asked whether he knew the defendant's reputation in the community. Treating this as the switch which turned the spotlight on Franklin's entire character, the government opened up a tri-faceted inquiry into the defendant's alleged involvement with a truckload of stolen fluorescent lamps some five years earlier. The government thrice increased the intensity of this inquiry, like a three-way, XX-XXX-XXX watt light bulb, until it may well have left a lasting mental image upon the minds of the jury.

A 50-Watt Question

Franklin summoned a number of character witnesses in his behalf and each was asked about his knowledge of the defendant's reputation in the community. Favorable replies were received from each of these witnesses who included neighbors, business associates and even a policeman. On cross-examination the government asked the witnesses if they had heard of an incident wherein Franklin had been in possession of stolen light bulbs.²

The record finally revealed that Franklin had never been arrested, charged or convicted of having these stolen lamps in his possession in 1966. Thus, in no sense could the testimony elicited from the character witnesses prove that Franklin had previously been convicted of the crime of possessing stolen property.

Nevertheless, we think it is clear that the questions were permissible. In Michelson v. United States, 1948, 335 U. S. 469, 69 S.Ct. 213, 93 L.Ed. 168, the Supreme Court undertook a detailed inquiry into the problem of cross-examining character witnesses. In that case, a nearly identical "have you heard?" question was asked each such witness. The court observed that such questioning was one of the hazards of using character witnesses:

The witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. The prosecution may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one\'s arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.

335 U.S. at 479, 69 S.Ct. at 220, 93 L. Ed. at 175.

We have applied this rule in a number of cases. In Gandy v. United States, 5 Cir., 1967, 386 F.2d 516, we dealt with a question of whether the interrogatory "do you know?" was proper. In holding that it was not a legitimate question under the Michelson standard, we declared "that the witnesses should have been asked if they had heard of the withdrawal of a citizenship application, not if they knew of it." 386 F.2d at 519. Wilcox v. United States, 5 Cir., 1967, 387 F.2d 60, presented a similar problem, and once again we affirmed the principle that Michelson does permit the "have you heard?" question if properly used. In Roberson v. United States, 5 Cir., 1956, 237 F.2d 536, we reversed the conviction because the government went beyond the permissible bounds of "have you heard?" Nevertheless, we acknowledged the legitimacy of the question. Thus, it is clear that asking character witnesses if they had heard of Franklin's involvement with the load of lamps was a low-wattage question, designed merely to illuminate the jury on how well the witnesses really knew Franklin's reputation and whether his reputation was as good as characterized in the conclusory "excellent."

A 100-Watt Cross-Examination

Had the prosecution been content with testing the knowledge of the character witnesses regarding Franklin's reputation, the appellant could have no cause for complaint. The district court, aware of the potentially damaging nature of the questions, instructed the jury on the extent to which the jury could consider this "have you heard?" testimony insofar as it related to the light bulb incident.³ However, when the prosecutor cross-examined the defendant himself regarding the incident the Government overloaded the circuit, going far beyond the permissible standard. We need not set out here the precise exchange of question and answer regarding the lamps, since it is plain that the prosecutor asked specific questions whether Franklin had done these acts, defense counsel objected, the court overruled and the defendant answered giving an exculpatory account of his involvement. In admitting the evidence the district court predicated it on the assurances of the government that it would offer proof of the incidents.

Since we hold, infra, that on this record the fact of asserted prior acts was not admissible, it is evident that this cross-examination was prejudicial to Franklin. Obviously, the questions cannot be framed in the "have you heard?" form since it is the defendant who is being cross-examined. This forced him to discuss an incident, a crime, for which he had never been arrested, charged or convicted. His discussion of his admitted possession of the stolen lamps placed him in an unfavorable light before the jury, perhaps casting dark shadows upon his character. In Wilcox v. United States, supra, a similar problem arose because of the prosecution's impermissible cross-examination of the defendant's character witnesses. Defense counsel felt obliged to counter the effects of the damaging questions.

With his proposed character evidence thus put in flames the defendant took the stand. In response to questions by his counsel he attempted to explain the "breaking and entering" case on the ground that he had only paid a fine for trespass. He attempted to explain his plea of guilty to grand larceny as being caused by a promise of probation, but the Court, on objection, directed the jury not consider that explanation. He "explained" the assault and battery as having been committed upon a man who had been playing with his wife. All this, of course, resulted in a sort of trial on the merits for multiple prior criminal offenses. It can only be likely that the jury considered these attempted explanations as confirmation rather than obliteration of this highly unfavorable turn of evidentiary events.

387 F.2d at 62-63.

The slender filament of prejudicial inference was thus ignited.

Our statements in United States v. Davenport, 5 Cir., 1971, 449 F.2d 696, have application here.

The only type of evidence admissible to show defendant\'s character is proof of his reputation in the community citations omitted. Specific acts of misconduct cannot be shown citations omitted. If the defendant offers

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