White v. United States

• Decision Date: 30 June 1965
• Docket Number: No. 18355.,18355.
• Citation: 349 F.2d 965,121 US App. DC 287
• Parties: John A. WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 287, 349 F.2d 965 (1965)

John A. WHITE, Appellant, v. UNITED STATES of America, Appellee.

No. 18355.

United States Court of Appeals District of Columbia Circuit.

June 30, 1965.

Mr. Lloyd N. Cutler, Washington, D. C., with whom Mr. John Roderick Heller, III (both appointed by this court), Washington, D. C., was on the brief, for appellant.

Mr. Martin R. Hoffmann, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and McGOWAN, Circuit Judges.

BAZELON, Chief Judge:

In this petition for rehearing, appellant urges that our opinion of September 17, 1964 shows that we have misread the record in affirming his conviction for first degree murder. That opinion assumed, without deciding, that appellant's statement to the police after arrest was inadmissible in the Government's case in chief. But we held that statement admissible on Government rebuttal to impeach appellant's self-defense claim for the reasons that (1) appellant "made the first reference to his statement" in his testimony, and (2) "defense counsel did not object to the prosecutor's subsequent use of that statement * * *."

Appellant now asserts, and we agree, that these reasons do not survive a closer reading of the record. The statement was first mentioned in the presence of the jury during the prosecutor's cross-examination of appellant, in the following colloquy:

Q. I asked you, Mr. Defendant, that as soon as you had settled down enough after this excitement of the police officers coming in with their drawn guns that you could think, you told the police then all about this, that you told us.

A. I didn\'t tell the police anything right then.

Q. I didn\'t say right there.

I said you told this to the police, didn\'t you, about his coming at you with his hand in his pocket.

A. I don\'t know whether I told the police that or what I told the police at the time. I made a statement at headquarters, if that is what you mean.

Q. Fine. I am glad you mentioned that.

The prosecutor then asked, "In that statement to the police at headquarters, which you have just mentioned, did you tell them about this man advancing on you with his hand in his pocket?" Appellant answered that he did not remember. At the prosecutor's request, the court instructed appellant to read the statement to himself to refresh his memory. The question was then repeated, and appellant answered, "I don't see it in the statement."

Our previous opinion found that appellant's testimony, "I made a statement at headquarters, if that is what you mean" justified the prosecutor's introduction of the statement to counter the "likely inference — an erroneous one — * * * that the statement did contain a complete account of his version of the shooting." But it is evident from the record that the prosecutor purposely elicited from appellant this reference to his statement, since the trial court had earlier ruled, over defense counsel's objections, that the statement could be used for impeachment.

Another incident in appellant's testimony is now urged by our dissenting brother as grounds for affirmance. Appellant testified on direct examination that, at his arrest, "I asked the officer could I explain to them what happened. They made me sit down in the chair and told me not to say anything." The dissent construes this testimony as an attempt by appellant "to leave with the jury the inference that he would have given the police a contemporaneous version of what had happened if they had let him do so" and the further inference that such statement would have supported his self-defense claim. In some circumstances, otherwise inadmissible evidence may be used to contradict a defendant's "affirmative resort to perjurious testimony." Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). But Walder does not authorize the use of inadmissible evidence to contradict such remote inferences as our dissenting brother finds here. Moreover, the Government did impeach this inference through the testimony of two arresting officers that appellant had spoken freely when arrested and had made no claim of self defense. Thus, unlike Walder, the inadmissibility of appellant's statement did not "provide him self with a shield against contradiction of his untruths" and he could not rely "on the Government's disability to challenge his credibility" on this point. Ibid.

The fact that appellant's statement might impeach his defense more effectively than the police testimony is no justification for admitting it. A defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief."¹ Inadmissible "evidence is not rendered admissible merely because the defendant testifies in his own behalf."² Appellant made no "`sweeping claims'<sup>3</sup> going far beyond the crime charged" nor was the impeaching use of the statement restricted "to `lawful proper acts' which are purely `collateral matters'<sup>4</sup> to the issues at bar." Rather, the use of the statement here "bore on the central issue" of the case.<sup>5</sup> Appellant admitted the shooting, but claimed he acted in self-defense. The Government used appellant's statement directly to contradict his only defense.<sup>6</sup> "To permit the Government to introduce illegally obtained statements which bear directly on a defendant's guilt or innocence in the name of `impeachment' would seriously jeopardize the important substantive policies and functions underlying the established exclusionary rules."⁷ We vacate our previous affirmance and remand the record for determination of the circumstances in which appellant's statement was obtained by the police. If that determination reveals that the statement was inadmissible for the Government's case in chief, the conviction is reversed for a new trial.

So ordered.

McGOWAN, Circuit Judge (dissenting):

The petition for rehearing pending complains primarily of our reliance upon Rule 52(b), FED.R.CRIM.P., in our earlier disposition of this appeal. It is urged that appellant's counsel, at the time appellant's statement to the police was used to refresh his recollection, was not required to articulate a fresh objection but was, rather, entitled to rely upon an earlier indication of a purpose to object, made in a bench colloquy when appellant first took the stand. Although the transcript continues to show this purpose as having been, to say the least, equivocally pursued, I would not be disposed, in view of the seriousness of the crime charged and the sentence imposed, to reject appellant's reading of the record. Accordingly, I think it would be appropriate to amend our opinion in the following respects for the purpose of making clear that an affirmance of this conviction need not rest upon an assumed absence of objection at the trial to the use of the statement now urged as error on appeal:

1. In the last paragraph of Part I, two sentences ("Apart from considerations stemming from Mallory, augmented by Walder, we would have no difficulty in finding the prosecutor\'s cross-examination proper. There was no objection based on these considerations,³ and since the defendant made the first reference to his statement, we cannot say that this cross-examination was plain error under Rule 52(b), FED.R.CRIM.P., if it was error at all.") are deleted; and there is substituted therefor — "What we hold is that, on the facts of this record, the court did not allow cross-examination to exceed proper limits.³"

2. The following paragraph is added to Footnote 3:

There was, however, a colloquy at the bench at the time appellant took the stand and before he told his story. At that time defense counsel indicated a purpose to object to any subsequent use of the statement. This colloquy terminated somewhat inconclusively for the reason that the prosecutor, under the urging of the court, said that he did not intend to use the statement unless he felt compelled to do so by the nature of appellant\'s testimony. Because, however, defense counsel may have thought that his earlier expressions in the bench conference served as continuing objections, we are prepared to assume that the matter was adequately called to the court\'s attention within the meaning of Rule 52 (b).

It is also urged in the petition for rehearing that our holding was erroneous because it referred to the circumstance that the first reference to the existence of the written statement came from appellant himself, and the appellant was thereby taken to have opened up the subject for impeachment purposes. There is not, as there could not be, any claim that the jury did not first hear of the statement from the lips of appellant, but it is said that we should not have taken this to be an opening up inasmuch as appellant was craftily maneuvered by the prosecutor into making this first reference. The short answer to all this is that affirmance does not turn upon the fact that it was the appellant who initially spoke of the statement. A close look at the unfolding of the record in this case will show what I mean in this respect.

Reference has already been made to the bench colloquy when appellant first took the stand, which ended with an expression of willingness by the prosecutor to defer to the court's wishes and not to use the statement at all unless compelled to by something in the forthcoming testimony. Appellant then gave his version of the shooting.¹ He then told how the policemen who arrived at the scene would not let him tell what had just happened.² The moment direct examination was finished, the prosecutor asked to approach the bench, and there said as follows:

(AT THE BENCH:)

MR. TITUS: Your Honor, does the Court have the statement? Your Honor, may I refer the Court

...