David Battle v. United States of America, Michael F. Davis v. United States
345 F.2d 438
D.C. Cir.
1965
Check Treatment

David BATTLE, Appellant, v. UNITED STATES of America, Appellee. Michael F. DAVIS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18752, 18756

United States Court of Appeals District of Columbia Circuit

Argued Jan. 29, 1965. Decided March 11, 1965.

345 F.2d 438

children, his common law wife, his divorce. Defense counsel elicited the fact that appellant had been convicted of a violation of the Internal Revenue Code for the sale of unpackaged liquor in 1941. He tried to establish that appellant had had a poor work record. He tried, in general, to establish that appellant was a “welfare chiseler“: he had not been diligent in seeking work; he had not sought education or retraining that would fit him for a different kind of work; he took a taxi to a doctor‘s office rather than a bus; and he was a “hustler.” Some of this was relevant to the question of damages; but it also had the prejudicial effect of creating the impression that appellant was a person undeserving of compensation. That this was the drift of the case as presented was suggested by a number of questions to the appellant about the make and year of his wife‘s automobile, a question that seems to reflect the popular idea that “welfare chiselers” frequently drive flashy late-model cars.

In my view, the defendant should be cautioned against a repetition of this attempt to discredit the plaintiff by appeals to community bias. The cross-examination regarding appellant‘s family relations and his conviction was clearly irrelevant. The evidence on whether appellant was a hustler was relevant to his credibility and to the measure of damages; but it was also highly prejudicial, in that it suggested that appellant was an undeserving person.

The Eichel case, relied on in the opinion of the court, stresses the risk that evidence intended to go only to damages may prejudice the plaintiff‘s case on the general question of defendant‘s liability. It is true that malingering or income from another source might be relevant to diminish the damages claimed by plaintiff. But where the evidence going to establish malingering is part of a pattern of attempts to show that a plaintiff is a worthless person, and where the source of income is one associated with scandal, the trial court should exercise its discretion in deciding whether their value in determining damages outweighs their prejudice to plaintiff.*

BASTIAN, Circuit Judge, dissented from reversal.

Mr. Edgar H. Martin, Washington, D. C. (appointed by this court), for appellant in No. 18752.

Mr. Hugh A. M. Shafer, Jr., Washington, D. C. (appointed by this court), for appellant in No. 18756.

Mr. Allan M. Palmer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and William C. Weitzel, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, BASTIAN and WRIGHT, Circuit Judges.

PER CURIAM:

Appellants, indicted for robbery, 22 D.C.Code § 2901, and assault with a dangerous weapon, 22 D.C.Code § 502, were convicted of robbery and simple assault. They are under sentences of imprisonment for 4 to 12 years. Appellants filed a motion under Rule 41(e), Fed.R.Crim. P. to suppress certain evidence. The motion was not heard prior to trial. When the case was called for trial counsel for appellant Battle asked the court to hold a hearing on his motion before the trial began. The request was denied. The judge stated, “if the evidence is tendered by the prosecution and then at that time I can ask the jury to withdraw and we will hear the matter.” The trial went forward. During its course and when it seemed probable the evidence sought to be suppressed would be offered, counsel again sought a hearing on its admissibility and was again rebuffed; the court summarily denied the renewed motion to suppress at this point and admitted the evidence without more.

The United States in its brief now before us states:

“On April 30, 1964, appellants filed a pretrial motion to suppress certain evidence. That motion was scheduled for a hearing before Judge Tamm on May 8, 1964, but was not reached that day. He referred the matter to the trial judge to be heard as a preliminary matter. On the day of trial the court did not follow that course nor did it hold an exclusionary hearing during the progress of the trial. A forum at some point along the way to allow appellants an opportunity to fully explore the circumstances of their arrest was required. Fed.R.Crim.P. 41(e);

.

“Should this Court reject appellants other contentions the case should be remanded, without reversing the conviction, for a hearing on the motion to suppress.1 This will result in either a new trial or affirmance of the conviction.

. See
;
.”

The cases cited are illustrative of remands in various circumstances for hearings without reversal, the question of setting aside the conviction to depend upon the result of the hearing. Of those cited the Peckham case is closest in point. But, unlike the case now before us, in Peckham a hearing, albeit an incomplete one, was held and a ruling made prior to trial.

We think no settled rule has been established that in such a case as this a remand is always to be preferred to a reversal for failure to comply with Rule 41(e). For this court to persist indefinitely in remanding instead of reversing for such error would tend to prevent the rule from operating as intended. Cf.

;
. The proper sequence is to comply with Rule 41(e) by a hearing before trial as the rule provides. This protects the trial from error and enables the defense at the most appropriate time to obtain a ruling on the usability by the prosecution of important evidence. In this case counsel at each opportunity sought the hearing to which his client was entitled and was unable to obtain it.

Moreover, the trial discloses two other serious errors: (1) Identification at nighttime of the two men who attacked the complaining witnesses on the street was the principal issue, yet defense counsel was denied the opportunity to cross-examine one of these witnesses respecting her eyesight; (2) the court‘s instruction to the jury went beyond permissible comment on the evidence. The court stated that “one of the persons charged here succeeded in getting her [one of the complaining witnesses‘] pocketbook.” The very question to be decided by the jury was whether the person who got the pocketbook was in fact “one of the persons charged here.” See

.

Reversed and remanded.

BASTIAN, Circuit Judge (dissenting):

I see no ground justifying reversal. I would, as suggested by appellee, remand for a hearing on the motion to suppress.

Notes

1
Appellee had originally suggested an immediate remand of the case for such a hearing. See letter to counsel for appellants filed with the Clerk of this Court on October 8, 1964. Counsel rejected that course then and still do, pressing for reversal on this issue (Br. 28-29). The precedents however, are against them on that score.
;
.
*
ter-impeachment be limited so far as practicable to attack on the particular character-trait of truthfulness or should it extend to ‘general’ character for its undoubted though more remote bearing upon truthfulness, on the notion that the greater includes the less?
“It seems probable, moreover, that the tendency, particularly in civil cases, is to use this form of attack more and more sparingly. It was part of the melodrama of the pioneer trial to find ‘the villain of the piece.’ It fits less comfortably into the more business-like atmosphere of the present court-room.”
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