Walker v. United States

• Decision Date: 24 March 1955
• Docket Number: No. 12063.,12063.
• Parties: Henry WALKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

96 US App. DC 148, 223 F.2d 613 (1955)

Henry WALKER, Appellant, v. UNITED STATES of America, Appellee.

No. 12063.

United States Court of Appeals, District of Columbia Circuit.

Argued June 16, 1954.

Decided March 24, 1955.

Petition for Rehearing Denied May 16, 1955.

Mr. Howard C. Westwood, Washington, D. C., appointed by this Court, with whom Messrs. John W. Douglas and Alfred V. J. Prather, Washington, D. C., were on the brief, for appellant.

Mr. Lewis A. Carroll, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and John F. Doyle, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, BAZELON and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied May 16, 1955.

DANAHER, Circuit Judge.

Indicted in October 1945, appellant in December 1953 was convicted of rape. His appeal presents two complaints: (1) that the trial judge mistakenly instructed the jury that appellant had admitted prior convictions of serious crimes; and (2) that the evidence is insufficient to support the jury verdict, particularly from the aspect of corroboration, or the lack of it.

I

The prosecutrix, one Della Woodley, married at the time of the occurrence to one Riley Woodley, (since deceased), gave the only direct testimony concerning the circumstances before the crime and the details of its commission. She identified the appellant as the perpetrator. In the absence of the jury, attorneys appointed by the District Court and the trial judge fully advised the defendant of his rights and urged him not to take the witness stand. The trial judge said finally, "* * * this record of yours will undoubtedly be brought out and it may affect the weight that the jury is going to give your testimony." The judge explained the nature of the charge he would give on this point, emphasized that the Government must prove guilt beyond a reasonable doubt, and then asked: "Do you understand what the Court is talking about?" Walker answered "Yes, sir."¹ "Do you want to go on the stand or stay off the stand?" "On the stand." The Court: "You want to go on the stand despite what the Court has told you and despite the advice the lawyers have given you?" Walker replied "Yes, sir."

Appellant taking the witness stand, said "Let me tell my story, then I will answer your questions."²

On cross-examination the accused was queried concerning various convictions thus:

"Q. Are you the same Henry Walker who in 1941 was convicted of rape and robbery in the State of Virginia? (No response.)

"The Court: Are you the same person, Mr. Walker?

"The Witness: When my prosecutor makes a statement against me here, then I am going to trial. I am not on trial.

* * * * *

"The Court: Do you understand the question?

"The Witness: My complainant is Della Woodley. When she takes this stand and makes her complaint against me, then I know I am on trial. I am not on trial.

* * * * * *

"Q. The next question is, are you the same Henry Walker who in the year 1946 was convicted in the State of Pennsylvania of aggravated assault and battery?³ (No response.)

"Q. Would you answer the question, please? (The witness shakes his head in the negative.)

"The Court: Which is your answer, that you will not answer the question or you were not convicted?

"The Witness: I thought I was being prosecuted by one Della Woodley. I know her as well as I know myself. That woman you all put up here, that ain\'t no Della Woodley. I know her.

"The Court: How about this conviction that the District Attorney asked you about?

"The Witness: Well, that there was something or other that somebody else had me in the court room for. I am not being tried for that.

* * * * * *

"Q. Are you the same Henry Walker who in 1935 was convicted in North Carolina of larceny? (No response.)

* * * * *

"Q. Did you know Riley Woodley? (No response.)

"Q. Did you work with Riley Woodley? (No response.)

"Q. Did you work with him in Alexandria, Virginia? (No response.)

"The Court: Did you hear the prosecutor, Mr. Walker?

"The Witness: I am not going to answer it.

* * * * * *

"Q. Did you know the young lady who took the stand here today, Della Woodley? A. It wasn\'t Della Woodley that I know.

"Q. Did you know Della Woodley? A. I did, yes, sir. She is dead and buried now.

"Q. Where did she live when you knew her? A. She lived here in Washington.

"Q. When was that that you knew her? A. When she gets on the stand and tell you what happened —

"Q. Did you know her in 1944? A. — then I will answer your questions.

"Q. Did you know her in 1944? A. She haven\'t made any complaints before this Court against me. Why should I get up here and testify against myself?

* * * * * *

"The Court: What is your answer?

"The Witness: When Della Woodley makes her complaint against me, then I will answer him."

And so it went, question and answer down to and including a denial by the appellant that he had ever seen the prosecutrix "until she got on the stand. This is the first time in my life."

"The Court: Would the Court be correct that you say you did not take her?

"The Witness: I don\'t know her.

"The Court: Then did you force her to have intercourse with you?

"The Witness: I never seen her before. * * *"

On redirect examination the appellant insisted that the Della Woodley of whom he spoke had died in the District of Columbia on August 12, 1953. A custodian of records from the Bureau of Vital Statistics testified that an examination of the records over a two year period failed to disclose the death of any person named Della Woodley.

The record discloses that the appellant was discerning and acute under examination, talking readily and glibly when supplying answers which served his position, while evasive as to incriminatory matter or nonresponsive when interrogated about his record. As to the various questions concerning prior criminal convictions, had the accused answered in the affirmative, that would have ended the matter. Had he answered in the negative, the Government would have been bound to introduce the record of his conviction and identify him as the person named in that record. To many such questions he made no response whatever; to others he made replies such as may be discerned from the samples herein reproduced. The trial judge made it clear that the jury was not "to indulge in any inference or any presumption that there is any relation between what he may have been or may not have been convicted of before, and you are not to indulge any presumption against him. It is merely that he, as any other witness, when he takes the stand, may have his credibility or the credence or the weight of his testimony attacked by the alleged possession of an alleged criminal record, in order that you, as you are acquainted with that fact, may pass upon the credence or the weight or the credibility to sic which you will attach the testimony that he gave, and it is for no other reason."⁴

There was no objection at the trial to the instruction as given, despite the requirement of Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C. A.: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Had such timely objection been made, the judge would have had an opportunity to correct any claimed error and to give appropriate instructions to the jury. Villaroman v. United States, 1950, 87 U.S.App.D.C. 240, 241, 184 F.2d 261, 21 A.L.R.2d 1074. The evasiveness of the appellant and his failure or refusal when a witness, under the circumstances described, might properly permit the jury to draw such inferences as the situation suggested. Raffel v. United States, 1926, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Caminetti v. United States, 1917, 242 U. S. 470, 37 S.Ct. 192, 61 L.Ed. 442. The judge made it clear that the jury was "the sole judge of the facts," and on the basis of the whole charge, highly favorable in general to the appellant, it cannot fairly be said that the trial judge invaded the jury's province. We do not doubt that it is always better practice for the government to establish prior convictions by introducing a proper record. We cannot say, in the light of the whole case, that the failure to do so was here prejudicial.

II

Although it is argued to us that the evidence is insufficient to support the verdict, and more particularly, that the testimony of the prosecutrix lacks corroboration, we conclude otherwise. Because of the seriousness of the charge and of the unusual circumstances already suggested herein, we have carefully examined the entire transcript. In Kidwell v. United States, 1912, 38 App.D.C. 566, 573, this court said: "We are aware that a conviction for this offense will be sustained upon the testimony of the injured party alone. But where the courts have so held, the circumstances surrounding the parties at the time were such as to point to the probable guilt of the accused, or, at least, corroborate indirectly the testimony of the prosecutrix."⁵ The Kidwell case has since been held to require corroboration in rape cases "in the sense that there must be circumstances in proof which tend to support the prosecutrix' story, * * * and for lack of it Kidwell's conviction for one offense was reversed." Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 17, 135 F.2d 633, 636, certiorari denied, 1943, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145. See also, McGuinn v. United States, 1951, 89 U.S.App.D.C. 197, 191 F.2d 477. In the Ewing case we were asked to reverse the Kidwell rule, to "inquire again into the whole theory of the necessity of corroboration" and to adopt a requirement of "direct corroboration" in cases like this. This court rejected the suggestion saying:

"If by `direct corroboration\' is meant the testimony of an eyewitness, the result would be in most cases that

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