United States v. Straughan, 71-1189.

• Decision Date: 12 January 1972
• Docket Number: No. 71-1189.,71-1189.
• Parties: UNITED STATES of America, Appellee, v. Lester STRAUGHAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 422 (1972)

UNITED STATES of America, Appellee, v. Lester STRAUGHAN, Appellant.

No. 71-1189.

United States Court of Appeals, Eighth Circuit.

January 12, 1972.

Mortimer A. Rosecan, Rosecan & Popkin, St. Louis, Mo., for appellant.

John J. Robinson, Roger A. Pauley, Attys., Department of Justice, Washington, D. C., Daniel Bartlett, Jr., U. S. Atty., Harry L. Strachan, III, Sp. Atty., Dept. of Justice, St. Louis, Mo., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

The defendant was convicted by a jury for having received, concealed, stored and sold a stolen Case 580 tractor in violation of the Dyer Act, 18 U.S.C. § 2313.¹ On appeal, the defendant contends (1) that the tractor is not a "motor vehicle" within the meaning of the Dyer Act; (2) that he was prejudiced by the improper admission of evidence concerning his character; and (3) that he was prejudiced by the improper admission of evidence concerning his refusal to give a handwriting exemplar.

We find that the tractor is a motor vehicle within the meaning of the Dyer Act, but hold that the defendant was prejudiced by the improperly admitted character evidence. We do not reach the third contention.

The Case 580 tractor has been characterized by the defendant as construction equipment. He argues that such machines are not "motor vehicles." The Dyer Act definition of "motor vehicle," however, "* * * includes an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle designed for running on land but not on rails." (Emphasis added.) 18 U.S.C. § 2311. We think that the emphasized language is broad enough to include the Case 580 tractor. See, United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); United States v. Jones, 421 F.2d 175 (5th Cir. 1970). In Mc-Glamory, the Court held that a bulldozer was a motor vehicle within the meaning of the Act. It reasoned that:

"* * * `Motor vehicle\' is after all merely a descriptive or generic term. The only qualifications placed upon this machine by the definition of § 2311 is that the motor vehicle must be capable of traveling on land but not on rails. Neither § 2311 nor another statute not applicable here contain the requirement that a vehicle must be used for transportation of passengers or that the motor vehicle must operate on the highways. * * *"

441 F.2d at 133.

While the term "motor vehicle" is not wholly free of ambiguity, the inclusion of the Case 580 tractor within its ambit comports with the literal construction of the term. Cf., McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931).

The defendant's contention that he was prejudiced by the improper admission of character evidence must be viewed in the light of the only factual issue in dispute at the trial. The defense position was that the defendant did not know the tractor was stolen. Evidence was produced to explain the defendant's possession of the tractor. A number of character witnesses testified to the defendant's good reputation for honesty. The government in rebuttal called a state police officer for the sole purpose of testifying about the defendant's reputation for "honesty, integrity, and being a law abiding citizen." The testimony of that witness and his cross-examination were as follows:

"Q. by Mr. Strachan, U. S. Attorney Do you know the accused in this case, the defendant?

* * * * * *

"Q. How long have you known him? A. About twelve years.

"Q. Are you acquainted with the people in the Farmington area that know Lester Straughan? A. Yes, Sir.

"Q. Are you acquainted with his reputation in that area and among those people who know him for integrity and honesty and being a law-abiding citizen? * * *

"* * * A. Well, actually he has two reputations.

"Q. You say two reputations? Would you give us — we will take the aspect of one of those reputations for integrity, honesty and being a law-abiding citizen, what is that reputation? A. Good. He is well thought of.

"Q. How about the other reputation for honesty, integrity and being a law-abiding citizen? A. This I would clarify. In the community that I work in in law enforcement I would say it is bad.

* * * * * *

"Mr. Rosecan: If the Court please —

"Come on up, counsel.

"(Thereupon, the following occurred at the bench out of the hearing of the jury:)

"Mr. Rosecan: If the Court please, the Government has done just exactly what they objected when they thought that this is what we were doing. They said the reputation has to be confined to a man's reputation in the area in which he lived. They showed that now and he said he had a good reputation. Then he asked another question and he answered, in law enforcement circles it is bad. That is not the test of whether a reputation is good or bad or not. It is highly prejudicial and I must move for a mistrial at this time. * * *

* * * * * *

"The Court: The motion is overruled. Let's go.

"Mr. Rosecan: May I ask that the jury be instructed to disregard that?

"The Court: No, sir.

* * * * * *

"Q. by Mr. Rosecan, defense counsel What did you mean by law enforcement? A. Different agencies from out of the county, people from southeast Missouri, people from St. Louis City, St. Louis County.

* * * * * *

"Q. But these people who told you bad things about Lester Straughan don't come from his home county where he lived, they come from southeast Missouri and other places? A. Other communities, yes, sir.

* * * * * *

"Q. You mentioned southeast Missouri as the place where he is supposed not to have such a good reputation. Didn't you say — A. (Interrupting) No, sir, I didn't say his reputation had been discussed from those people. I said people in other agencies in southeast Missouri have called on me to make checks in reference to him.

"Q. Make checks in reference to him? A. Yes, sir.

"Q. Were you called upon by other agencies to make checks with reference to him? A. Yes, sir.

"Q. And all the checks that you have made with reference to him did you find out he had committed any crime when you checked him? A. No, sir.

"Q. Did you find out he had not committed any crime when you checked him? A. I didn't find out either way. I merely made the check and forwarded the information back to the people who required it.

"Q. Well, you made a check on him and you found out — if you found out he had committed a crime you would know that, wouldn't you? A. It wasn't with reference — As far as I knew it wasn't with reference to a crime.

"Q. It wasn't with reference to a crime? What would you be checking him for? A. Serial numbers on various pieces of equipment that were heavy construction equipment around in the Lead Belt area on construction jobs. They would ask me to go out and make a check on the serial number, which I did for the Highway Patrol in Poplar Bluff, and I have done it for a police agency up here in St. Louis County.

* * * * * *

"Q. (By Mr. Rosecan) When you talked about his reputation among law enforcement people, was that as a result of your being called upon to check him out on certain things? A. Yes, sir.

"Q. And that is how you formulated your opinion was because you had been asked to check him out? A. Yes, sir.

"Q. I see. And you did check him out, is that right? A. Yes, sir.

* * * * * *

"Mr. Rosecan: If the Court please, I at this time move that the testimony of this witness as to the reputation of Lester Straughan that he got from the law enforcement people in southeast Missouri, St. Louis and St. Louis County be stricken and the jury instructed to disregard it because there is no sufficient basis upon which to formulate an opinion concerning Lester Straughan's reputation as a good character.

"The Court: Overruled."

The government now concedes that "although the defendant had put his character in issue by introducing testimony by several witnesses as to his good reputation in the community * * *, evidence in a group other than the community where he lived or worked was not proper rebuttal."² The government argues, however, that the error in admitting this improper character evidence was harmless. We do not agree.

In determining whether or not this error was harmless, we are guided by the standard laid down by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946):

"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand * * *. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. * * *"

Here, we cannot say with assurance that the jury was not substantially swayed by the admission of the improper character testimony.³

The officer's improper character testimony had three effects: (1) it obviously undercut the testimony of the defendant's character witnesses; (2) it cast doubt on the testimony of the defendant's possession of the equipment was innocent; and (3) it tended to enhance the testimony of the two principal government witnesses, whose reputation for honesty and integrity was not good. The credibility of these two witnesses will be discussed in detail later.

Here, the prejudice was heightened by the fact that the source of the improper character evidence was a police officer.

Furthermore, we must point out that the government was permitted to attack the defendant's character in several ways which were proper. Yet the only evidence produced which was damaging to the defendant's reputation was the erroneously admitted improper character testimony.⁴

The government next argues that, even though the character testimony was prejudicial, the case against the defendant was so strong that the error was harmless. We cannot agree.

Although the...