United States v. Miles

• Decision Date: 25 June 1969
• Docket Number: No. 16270-16272.,16270-16272.
• Citation: 413 F.2d 34
• Parties: UNITED STATES of America v. Jerry Edgar MILES, Wilbert Theodore Vaughn, and George Kirby, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

413 F.2d 34 (1969)

UNITED STATES of America v. Jerry Edgar MILES, Wilbert Theodore Vaughn, and George Kirby, Appellants.

Nos. 16270-16272.

United States Court of Appeals Third Circuit.

Argued March 7, 1969.

Decided June 25, 1969.

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Orlando N. Prosperi, Greensburg, Pa., for Jerry Edgar Miles.

Barney Phillips, Pittsburgh, Pa., for Wilbert Theodore Vaughn.

Alvin D. Capozzi, Pittsburgh, Pa., for George Kirby.

Stanley W. Greenfield, Asst. U. S. Atty., Pittsburgh, Pa. (Gustave Diamond, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.

SEITZ, Circuit Judge.

Jerry Miles, Wilbert Vaughn and George Kirby (appellants) were charged with the armed robbery of the Eureka Savings and Loan Association of Pittsburgh, Pennsylvania, in violation of 18 U.S.C.A. § 2113(a) and (b). Appellants here challenge the judgments of conviction and the sentences of imprisonment which followed jury verdicts of guilty at their joint trial.

Each of the appellants contends that the district court erred in permitting the United States to plead surprise and to cross-examine and impeach two government witnesses, Arletta Edge and Delores Key.

In its case-in-chief the United States called Arletta Edge who had previously given a statement to the Pittsburgh Police and the FBI implicating each of the appellants in the bank robbery. The witness was the girl friend of the appellant Miles. Before the trial Miss Edge indicated to the United States Attorney that she repudiated her statement. Notwithstanding the repudiation, the United States called the witness, arguing that it believed that she would re-adopt her previous statement when under oath and in a courtroom setting.

When called to the stand, Arletta Edge testified that she and the appellant Miles had driven to New York from Pittsburgh in a hired car on the evening of October 29, 1965, two days after the robbery, that they were accompanied by the appellant George Kirby and Delores Key, and that upon arriving in New York all four of them registered at the Chesterfield Hotel. The witness then went on to state that while at the hotel, where the foursome stayed for about a week, Kirby visited Miles in the room which she and Miles were occupying. The prosecutor then asked whether she had overheard any conversations between Miles and Kirby. She replied that she had not.

At this point in his examination the prosecutor claimed surprise and asked leave to cross-examine and impeach the witness by referring to the statement which she had earlier given the Government, in which statement she claimed to have overheard Miles and Kirby discussing the bank robbery. Thereupon the court adopted the suggestion of the attorney for appellant Kirby that before the court ruled, it would be appropriate for the Government to interrogate the witness on voir dire.¹ In the course of the voir dire the witness declined to adopt any significant portion of the statement. She explained that she had signed the statement only in response to police coercion. The Government renewed its motion to permit impeachment and the court, over objection, permitted the Government to repeat the examination before the jury.

When proceedings recommenced before the jury, the prosecutor asked the witness whether she had given a statement to the authorities concerning the robbery. She replied that she had no knowledge of the robbery. Then, as was done on voir dire, the prosecutor showed her a copy of her statement. After the witness identified her signature and initials, the prosecutor interrogated her on her statement, proceeding through it line by line. The statement placed the appellants together on the day of the robbery and credited Miles and Kirby with "talking that they had robbed the bank."

At the close of the case, the trial judge instructed the jury that the out-of-court statement of the witness Arletta Edge was not to be considered as evidence against the appellants, but solely as matter which would bear on their evaluation of her credibility.

The United States takes the position² that surprise was properly pleaded and that the scope of the examination was proper because the witness "not only testified in a manner contradictory to an earlier sworn statement but, unsolicitedly and in the expectation of being confronted with her signed statement, assailed the police and FBI as having forced her to give that statement." The Government says that "under these circumstances, to have allowed this testimony to go unchallenged, would have permitted an outrageous distortion of the Government's presentation, to its serious detriment."

We find that the impeachment of Arletta Edge was improper in scope and inexcusably prejudicial to appellants.

The United States may properly claim surprise and impeach its own witness by use of an out-of-court statement where (1) the witness' testimony was contrary to that which had been anticipated and (2) where the testimony was actually injurious to the Government's case. Bushaw v. United States, 353 F.2d 477 (9th Cir. 1965) cert. den., 384 U.S. 921, 86 S.Ct. 1371, 16 L.Ed.2d 441 (1966), 1 Underhill's Criminal Evidence, Chapter 21, § 232, 1968 Supplement. However, the impeachment examination must be reasonably calculated to rehabilitate the Government's case without unnecessarily prejudicing the defendants. Culwell v. United States, 194 F.2d 808 (5th Cir. 1946). In making these determinations, the district court quite naturally exercises a certain amount of discretion.

We have no doubt that the United States was free to call Arletta Edge in expectation of eliciting from her material generally helpful to the Government and in expectation — or perhaps merely in hope — that she would repeat the subject matter of her sworn out-of-court statement. However, the voir dire examination made clear that she would in nowise ratify her statement and would persist in her repudiation of it. Indeed, she labelled it a product of police coercion. The United States therefore had full cognizance of her hostility when it elected to replay the voir dire examination before the jury. In these circumstances, the Government cannot now justify the scope of the impeachment examination by relying on testimony which it knowingly invited.

Up to the point where the jury was removed for the voir dire, the only testimony given by Arletta Edge which differed from her signed statement was that she had "failed to recall" having overheard any conversations of substance between appellants Miles and Kirby. Even assuming that such testimony came as a surprise to the United States, there had been no affirmative prejudice or injury up to that point in the presentation of the Government's case. See Bushaw v. United States, supra, 353 F. 2d 481. The fact that she would not testify in all particulars as the Government had hoped is not to say that the Government was injured. Moreover, the transcript of the trial testimony given before the interruption for the voir dire reveals that material favorable to the Government was in fact elicited from this witness.

If we assume the propriety of some impeachment examination, the facts here in any event did not justify the Assistant United States Attorney's reading the prior statement line by line in the presence of the jury. United States v. Block, 88 F.2d 618 (2nd Cir. 1937). The examination, as it was conducted, was hardly designed to undo whatever affirmative harm had been done without unreasonably prejudicing the defendants. On the contrary, it appears to have been calculated to affirmatively aid the Government in establishing appellants' guilt. Further, we are unable to say that the court's cautionary instruction, to consider the statement as impeachment material only, adequately dispelled the prejudicial effect of the Government's line-by-line reading of the statement.³

Appellants also contend that the Government's impeachment of Delores Key, was improper and prejudicial. The material facts surrounding the impeachment examination of this witness are not unlike those reviewed in connection with the impeachment of Arletta Edge. Delores Key had given a statement to the Pittsburgh Police and the FBI incriminating the appellants. Subsequently, she repudiated the statement as containing false information fabricated and inserted by the authorities. The repudiation came at Grand Jury proceedings which preceded the trial below. Notwithstanding this preview of her hostility, the United States called Delores Key, and after eliciting substantial testimony generally helpful to its case, the United States sought to interrogate her on the subject matter of her out-of-court statement. Then, claiming surprise at her repudiation, it sought to impeach her by a line-by-line examination on her statement. The United States now seeks to justify the examination, its scope and the procedure followed on the same grounds as urged with regard to the impeachment examination of Arletta Edge.

Whether or not the United States should have had some opportunity to impeach this witness, we do not decide; because, it is clear that the examination, as conducted, was impermissibly broad and inexcusably prejudicial.

There is no question that the impeachment of Arletta Edge was prejudicial to Miles and Kirby and that in the circumstances of this case, it was prejudicial also to Vaughn. Further, we have concluded that the portions of Delores Key's statement read before the jury were prejudicial to the appellants, especially to Vaughn whom — according to the repudiated statement — this witness was to provide with a false alibi.

Having found that the improper proceedings in connection with the impeachment of Arletta Edge and Delores Key were materially prejudicial to all three appellants, we feel compelled to set aside their convictions.

Two of the appellants raise another issue which we feel should be resolved in order to aid the district court...