United States v. Morgan, 72-1317.

• Decision Date: 19 March 1973
• Docket Number: No. 72-1317.,72-1317.
• Citation: 155 US App. DC 172,476 F.2d 928
• Parties: UNITED STATES of America, v. Gerald O. MORGAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 172, 476 F.2d 928 (1973)

UNITED STATES of America, v. Gerald O. MORGAN, Appellant.

No. 72-1317.

United States Court of Appeals, District of Columbia Circuit.

Decided March 19, 1973.

As Amended March 19, 1973.

William J. Boyd, Washington, D. C., and James R. Fox (appointed by this court) were on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy, and Joseph E. di Genova, Asst. U. S. Attys., were on the brief for appellee.

Before McGOWAN, Circuit Judge, EDWARDS,^* United States Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

PER CURIAM:

Appellant was convicted after jury trial in the United States District Court for the District of Columbia on charges of first degree burglary while armed, armed robbery, and assault with a deadly weapon. He was sentenced to concurrent terms of three to ten years on each count.

The evidence at trial showed that there was one witness to the alleged crime, the complaining witness George C. Lucas. He testified that on October 10, 1971, in the early morning hours, three men whom he had never seen before, two of whom were armed, burst into his room, that he sought to resist but was overcome by them when one of them struck him with a revolver and that they then robbed him of several dollars and left. Lucas also testified that he followed the bandits out of the room, saw them enter a car driven by a man he recognized as Leroy Price, whom he knew.

Lucas called the police who responded and found the room in a state of disorder. Some days later Lucas advised the police of the name of those whom he alleged to be his assailants. He testified that he had gotten their names from Price. Appellant's was one of those names.

The only appellate issue of significance concerns appellant's claim of error in being refused the opportunity properly to impeach the complaining witness. This occurred as a result of the following colloquy:

MR. MENARD Counsel for defendant Dennis G. Morgan: Your Honor, under D.C.Code convictions, those ten years from the present cannot be used for witnesses or for defendants.

The star witness for the Government, the complaining witness, has a conviction of more than ten years and in spite of the D.C.Code, I would argue under the general principles, Your Honor, of criminal law, that we should be allowed to use that conviction.

THE COURT: What is the conviction?

MR. MENARD: Making a false report to the Police Department and that is the gravamen of our defense in this case.

MR. SHAUGHNESSY Assistant United States Attorney: Don\'t you have another conviction that is more recent?

MR. MENARD: Yes. It is the nature of that other conviction that we want.

THE COURT: If it is more than ten years old, that will not be used, of course.

MR. SHAUGHNESSY: I don\'t know if there was a trial in that case or a forfeit.

MR. MENARD: Yes.

THE COURT: There very seldom is.

MR. MENARD: I think he got 30 days.

The applicable statute provides in relevant part that "no evidence of any conviction . . . is admissible . . . if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness . . . for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation or sentence . . . imposed with respect to his most recent conviction of any criminal offense."¹ 14 D.C.Code § 305(b)(1)(B)(ii) (Supp. V, 1972).

The complaining witness in this case, George Lucas, had been found guilty of making a false report to the police and sentenced to 30 days imprisonment on July 11, 1957. Additionally, on December 30, 1969, he pled guilty to the charge of assault with a dangerous weapon and was sentenced to two to seven years in prison. Execution of that sentence was suspended subsequently, and Lucas was placed on probation for five years. The effect of the rulings of the District Judge was to allow impeachment of Lucas on the basis of the second conviction but not on the basis of the first.

This latter ruling was plainly in error under the D.C.Statute, and the Government concedes as much. The Government's argument on appeal is that the error was harmless when the case is considered as a whole, citing Davis v. United States, 133 U.S.App.D. C. 172, 409 F.2d 453 (1969).

We consider the Davis case to be easily distinguishable from the instant facts and we...