United States v. Winston

• Decision Date: 30 June 1971
• Docket Number: No. 22917.,22917.
• Citation: 447 F.2d 1236
• Parties: UNITED STATES of America v. Frank W. WINSTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

447 F.2d 1236 (1971)

UNITED STATES of America v. Frank W. WINSTON, Appellant.

No. 22917.

United States Court of Appeals, District of Columbia Circuit.

Argued June 11, 1970.

Decided June 30, 1971.

Mr. Benjamin R. Achenbach, Jr., Washington, D. C., with whom Mr. Robert Reed Gray, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Mr. Terry P. Segal, Asst. U. S. Atty. with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and MATTHEWS,^* Senior Judge, U. S. District Court for the District of Columbia.

LEVENTHAL, Circuit Judge:

The appellant was convicted of assault with intent to commit robbery, assault with a dangerous weapon, and possession of a pistol without a license. He was sentenced to eight years of imprisonment under the Youth Corrections Act. We cannot sustain the conviction on the present record, but conclude that in the interest of justice the record should be remanded to clarify a matter that may provide a basis for sustaining the conviction.

Prosecution Evidence of Defendant's Commission of Crime

The sole evidence linking appellant with the crime was testimony of Eugene Carbo,¹ the victim of the assault, as follows:

Mr. Carbo was admitting employees to the Hechinger Company building on the morning of September 12, 1967, when three persons approached. Taking them as employees, Mr. Carbo pressed the button that opened the door. He realized his mistake and closed the door after two of the men entered, but before the third got through. The man later identified by Mr. Carbo as the appellant pulled a gun, grabbed the front of Carbo's shirt, said "This is a stick-up, man," and ordered him to open the door to admit the third companion. When Carbo said there was no money in the office, the gunman shot him in the chest at close range and fled. Carbo testified that seeing conditions were good in the office, and that his seven years' experience in the Military Police had taught him to observe faces carefully.

Initial Ruling On Inadmissibility by Prosecution of Identification at Preliminary Hearing

On cross-examination defense counsel asked questions testing Carbo's ability to observe and make the identification, e. g., elicited Carbo had only seen defendant a minute and a half.

The prosecutor, at bench conference, contended that defense counsel was challenging the in-court identification, and this "has opened the door" to permit the prosecution to show Mr. Carbo's previous identification of appellant in a General Sessions courtroom on the day of the preliminary hearing. Defense counsel raised the possibility that the police officer had pointed appellant out. The court held a hearing out of the presence of the jury. Mr. Carbo testified that prior to the preliminary hearing he was asked to walk down the hall and observe people in the hall and courtrooms and see if there was anyone he could identify. He saw defendant in a courtroom where there were some 30 or 40 persons, white and black, male and female. He went back and told the detective he did see someone he recognized. The detective suggested Mr. Carbo walk through the courtroom, and when Mr. Carbo was "shaky" volunteered to go with him. They went past the man and Mr. Carbo identified him. Mr. Carbo said he had not been prompted by the police officer. (Tr. 28-31.)

The court held that this identification in a General Sessions courtroom was not admissible under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that the police had in effect allowed a situation to develop hoping it would be comparable to a lineup, without notifying defendant's attorney about the impending confrontation.²

This ruling is within the ambit of our decisions in Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969), that identifications at preliminary hearing must comport with Wade, and (Anthony) Long v. United States, 137 U.S. App.D.C. 311, 424 F.2d 799 (1969).³

After hearing testimony as to a photographic identification by Mr. Carbo shortly after the crime, the court held this had not been unduly suggestive, that Mr. Carbo's in-court testimony was untainted by the identification in the General Sessions courtroom, and would not be stricken.

Rulings on the Prosecutor's Rebuttal Presentation of General Sessions Identification

Appellant then presented an alibi defense. On direct examination he testified that on the morning of September 12, he had not been in Hechinger's or seen Mr. Carbo. Asked when he had first seen Mr. Carbo, he replied in the Court of General Sessions before his preliminary hearing started.⁴ The prosecuting attorney declared that this reference to the preliminary hearing provided the basis for "rebuttal" testimony by Mr. Carbo concerning the identification in the Court of General Sessions. The judge, with express misgiving,⁵ permitted Mr. Carbo to testify.

Six days after conviction, on July 29, 1968, appellant filed a motion for a new trial. As the close of argument on the motion on December 6, 1968, the judge announced that the motion was granted, because the rebuttal testimony had been improperly admitted. On December 13 the trial judge sua sponte reconsidered his ruling, heard argument, and took the motion under advisement. On February 14, 1969, the trial judge sentenced the appellant; stating that he had concluded that the trial error was harmless error. Four days later he filed an order formally reversing his ruling of December 6.

Approval of Trial Judge's Rejection of "Opening the Door" Contention

On appeal the Government does not argue (though it apparently does not concede) the propriety of the trial judge's ruling that evidence of the General Sessions identification was inadmissible as such. Its contention is that "Once appellant's counsel elicited testimony about the General Sessions confrontation, the prosecutor was entitled `to fill the gaps' created by the incomplete account." (Br. 8) Its theory is that once appellant had "opened the door" on evidence otherwise inadmissible, the Government can introduce such evidence in its entirety, not merely for impeachment, but in the interest of truth.

The judge did not admit the rebuttal in the first instance on the theory of "opening the door," dubbed "curative admissibility" by Wigmore. 1 J. Wigmore, Evidence § 15 (3d ed. 1940). His view was that since appellant had indicated that the witness had seen only him and his mother in the courtroom, and since the witness had earlier testified, outside the presence of the jury, that there were 30 persons present in the courtroom where he saw appellant, the prosecution should be allowed to put in the testimony, not on general opening the door grounds, but to impeach appellant's statement by contradiction.⁶ Later, the trial judge felt there was error because the inadmissible testmony — which as he had noted established a viewing without counsel on which counsel had no basis for cross-examination (Tr. 131) — had been permitted on the point of providing direct impeachment by contradiction, yet ultimately there had been no contradiction, since Mr. Carbo's testimony confirmed that when defendant saw him defendant was alone with his mother.⁷

The trial judge was definite that the rebuttal was not admissible on a theory of "opening the door." He first called attention to the opinion of another District Judge in United States v. Clark,⁸ as establishing that when defendant's testimony puts the witness's identification in issue, he opens up the area and the Government may explore. (See Tr. 129.) But he did not think it followed that the mere testimony by defendant that he had never seen the witness prior to the preliminary hearing permitted the Government to introduce testimony about the facts which was forbidden on direct because of denial of constitutional rights (Tr. 130). The trial judge put it expressively (Tr. Dec. 13, 1968, p. 8):

"This business about `opening the door\' is a much overused issue and it carries with it an oversimplification. Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door. This witness\' testimony was certainly not in rebuttal to anything that the defendant testified to."

We agree with the reasoning of the trial judge. As noted in United States v. McClain, 142 U.S.App.D.C. 213, 216, 440 F.2d 241, 244 (1971): "The doctrine of curative admissibility is one dangerously prone to overuse." Permission to explore in rebuttal with testimony not admissible on direct, on the ground that the other party has opened the doors, rests "upon the necessity of removing prejudice in the interest of fairness." Crawford v. United States, 91 U.S.App.D.C. 234, 237, 198 F.2d 976, 979 (1952).⁹

The doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice. Introduction of otherwise inadmissible evidence under shield of this doctrine is permitted "only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956).

The Clark decision, supra note 8, shows that the doctrine may permit rebuttal use of pretrial identifications that are otherwise inadmissible because of constitutional violations. However, in view of the constitutional rights involved, the court must be particularly clear that the case is appropriate for curative admissibility.¹⁰ In a case of constitutionally-grounded exclusion, there is a requirement of clear showing of prejudice before the open-the-door rule of rebuttal may be involved. The rule operates to prevent an accused from successfully gaining exclusion of inadmissible prosecution evidence and then extracting selected pieces of this evidence for his own advantage, without the Government's being able to place them in their...