United States v. McIntosh, 22538.

• Decision Date: 11 March 1970
• Docket Number: No. 22538.,22538.
• Citation: 138 US App. DC 237,426 F.2d 1231
• Parties: UNITED STATES of America v. Wendell McINTOSH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 237, 426 F.2d 1231 (1970)

UNITED STATES of America v. Wendell McINTOSH, Appellant.

No. 22538.

United States Court of Appeals, District of Columbia Circuit.

Argued December 11, 1969.

Decided March 11, 1970.

Mr. Worth Rowley, Washington, D. C. (appointed by this court), for appellant.

Mr. Edwin K. Hall, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Daniel Harris, Asst. U. S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

Appellant was convicted of mail theft of a cardboard box at the Union Station. Evidence at his trial showed that Post Office personnel saw him leaving a mail area near the passenger gates at Union Station carrying a mailed cardboard box. When a postal supervisor asked him about the box he was carrying, appellant said that it was his, but later when it became apparent from examination that it was not, the appellant claimed that he had had a parcel of the same size and shape but that he must have picked up the wrong parcel. At trial appellant also claimed that he had a similar cardboard box that he had set down at the Union Station; but such box was never produced nor was there any corroborative evidence that such box ever existed. Appellant's attempted explanation as to his reason for being at the station revolved around the claim that he was there to meet friends he expected to arrive on an incoming train. These "friends" were never otherwise identified or produced.

Before trial there was a motion to suppress hearing after which the trial judge conducted a Luck¹ type hearing at which it was brought out that appellant had been convicted of larceny after trust in 1955 and three violations of the Harrison Narcotics Act in 1961. Because of the natural objections to these convictions (remoteness and propensity to crime), the trial judge then considered conducting a hearing to determine whether the appellant had led a legally blameless life since 1955 but appellant's counsel refused this offer saying, "I can't say that." The judge then said:

"I don\'t believe in weighing down the record with evidence of prior criminal convictions because that too much leads a jury to the possible conclusion that the man has a propensity for crime rather than simply having the opportunity of considering it in connection with their evaluation of his credibility. I will permit you to introduce or to question him about one of these convictions. Now, which one would you prefer to use, the recent one in the narcotics area? Or larceny after trust?"

The prosecution chose and used the narcotics conviction because it was the most recent conviction.

At trial there was no objection to use of the prior conviction but now on appeal appellant argues that a Harrison Narcotics Act conviction is a hideous crime which does not bear directly on credibility and, therefore, it was reversible error for the court to allow the Government to use it for impeachment purposes in a case where he is the only defense witness. We disagree.

This court has held that narcotics convictions do bear weight on the issue of credibility.² Consequently, in a Luck situation, if the judge determines that one of a number of a defendant's prior convictions is to be introduced for impeachment purposes, it is not error per se to allow impeachment by a narcotics conviction pursuant to D.C.Code § 14-305 (1967).³ We disagree with the appellant's contention that a narcotics conviction is such a hideous crime that its introduction at trial automatically becomes so prejudicial that a defendant is thereby denied his right to a fair trial. Indeed, one might argue that a narcotics conviction is not near so damaging in a mail theft trial as a larceny after trust conviction would be. This may very well have been the reason the defense did not object at trial. In any event it would not be in the interest of justice to allow one with prior convictions to assume the role of pure integrity on the stand simply because he is his only witness or because his prior crimes were serious crimes. We should not forget in our reading of Luck that D.C. Code § 14-305 does specifically authorize the use of a prior conviction to affect one's credibility as a witness.

The trial judge did err when he allowed the prosecution to select the conviction he was going to use. The question of which conviction to allow for impeachment purposes is under Luck, supra, a matter for the trial judge's discretion and a failure to exercise that discretion constitutes an abuse thereof. A reading of the record as a whole however indicates that the trial judge weighed the relevant factors (i. e., remoteness, relative bearing on credibility, propensity to crime, etc.) and decided that the two forms of convictions weighed equally. Nevertheless, it was error for the trial judge not to make the decision himself but we do not find that this error constitutes reversible error in this instance. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 52(a). In this case, the use of a more recent narcotics conviction, as opposed to the more remote larceny after trust conviction that carried the inference of propensity to commit the charged crime, did not affect any substantial rights of the appellant.

The appellant also argues that the prosecutor, in his closing statement to the jury, and the trial judge, in his instructions to the jury, made reference to the narcotics conviction and that these references inflamed the jury to the prejudice of the defendant. We do not agree. The prosecutor's interrogation, his argument to the jury and the court's instruction on the prior conviction were carefully stated so that it was quite clear that the jury was to consider the prior offense solely on the issue of the credibility of the witness.⁴

Appellant's brief also takes exception to the prosecutor's statement that narcotics addicts are notorious liars. Suffice it to say that this statement was not made within the hearing of the jury, and the reference thereto did not reflect the opinion of the prosecutor. He was merely calling the court's attention out of the hearing of the jury to an argument made in Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748 (1964), that dealt with addicts.

Affirmed.

BAZELON, Chief Judge (dissenting):

An amplification of the facts will be helpful to clarify my point of disagreement with the majority. When defense counsel raised the Luck point,¹ the trial court inquired whether the prosecuting attorney had "any cases involving dishonesty, larceny, perjuries, Title 18, Section 1001, anything like that?" Informed of the appellant's drug record, the court replied, "I am not too much concerned about narcotics violations," and observed that Brooke v. United States² was the "only case I know off-hand in which the Court of Appeals has ruled it was not error for the Government * * * to question a defendant about a narcotics conviction."³ But the court correctly distinguished Brooke from the present case, in that "there was somebody else there to tell Brooke's story" to the jury, while McIntosh was the only defense witness in the instant trial. Although the Government argued at length for admission of the narcotics violation, the court clearly indicated a reluctance to admit that conviction⁴ and asked the prosecutor whether there was "anything else besides the narcotics conviction." The prosecutor cited appellant's 1955 conviction for larceny after trust, to which defense counsel objected as being "fairly old." The court inquired whether appellant's life had been "legally blameless" since 1955, and the defense counsel, in light of the narcotics violation, admitted that it had not.

At this point, the trial judge announced to the prosecutor:

I don\'t believe in weighing down the record with evidence of prior criminal convictions because that too much leads a jury to the possible conclusion that the man has a propensity for crime rather than simply having the opportunity of considering it in connection with their evaluation of his credibility. I will permit you to introduce or to question him about one of these convictions. Now, which one would you prefer to use, the recent one in the narcotics area? Or the larceny after trust?

The Assistant United States Attorney "elected to use" the narcotics conviction.

The task facing the court below was not an easy one. It was presented with two prior convictions, both of which were low in probative value and high in potential prejudice.⁵ The fact that the court commendably sought to avoid "weighing down the record with evidence of prior criminal convictions," did not alter the need for an initial consideration whether either of the convictions involved conduct having a "bearing on veracity."⁶ It is not enough simply to apply a rule of thumb which admits into evidence half or a third of the defendant's previous convictions. All convictions relate to the defendant's credibility, in the sense that jurors will give less credence to testimony by a man with a criminal past. But Luck and Gordon teach that the relevant determination for the trial court is the bearing each prior conviction has on veracity weighed "against the degree of prejudice which its revelation * * * would cause."⁷ In this case, the trial court released this determination into the hands of the prosecutor, who — as might have...