Hamilton v. Hamilton
District of Columbia Municipal Court of Appeals
1960
158 A.2d 677
The majority says and without record support that appellee‘s misconduct forced the wife [appellant] to terminate the marital relationship. [And] . . . to file charges . . . with the intent of having the husband [appellee] arrested and permanently restrained from living with her. There were no such allegations in appellant‘s complaint nor was there testimony at trial to that effect and certainly the trial court made no such finding. The majority says also that appellee “(who previously had physically abused the wife [appellee] on several occasions) was arrested after having threatened her and the children with a loaded shotgun.” The record shows that these statements were controverted by appellee and that the trial judge refused to make any such finding.
What points up all of this is the clear record showing that the marital relationship was interrupted not by any direct act of appellant but by the court order which required appellee to avoid contact with apрellant on “marital problems” for one year commencing February 8, 1972. As the trial judge observed, the evidence was in sharp conflict as to the circumstances which provoked the order.
It is not the function of this court “to reconsider or reweigh the evidence” and this court is not permitted to make its own findings or to substitute its judgment for that of the trial court. Patterson v. Patterson, D.C.App., 188 A.2d 299, 300 (1963).6
I would not, therefore, disturb at this time the judgment of the trial court but would remand the record with dirеctions to make and certify to this court in a supplemental record appropriate written findings of fact and conclusions of law. For all of the foregoing reasons I vigorously but respectfully dissent.
Linwood E. JOHNSON, Appellant, v. UNITED STATES, Appellee.
No. 8683.
District of Columbia Court of Appeals.
Argued Nov. 4, 1975. Decided April 29, 1976.
Rehearing en Banc Granted July 30, 1976.
Michael H. Gertner, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and John O‘B. Clark, Jr., Asst. U. S. Attys., were on the brief, for aрpellee.
Before KELLY, YEAGLEY and MACK, Associate Judges.
KELLY, Associate Judge:
Appellant, Linwood E. Johnson, and two codefendants were convicted of the armed robbery1 of a pastry deliveryman following a jury trial. On appeal, Johnson claims that the trial judge erred in failing, sua sponte, to immediately instruct the jury on the limited admissibility of a prior inconsistent statement used to impeach one of the codefendants who testified in his behalf. Finding plain error, we reverse the conviction and remand the case for a new trial.
Briefly, the government‘s case consisted of evidence that two men robbed the deliveryman at gunpoint of a sum of money and two pies. An unidentified witness took down the license plate number of the vehicle in which the robbers left the scene and the car was stopped by the police shortly thereafter. A passenger in the backseat, codefendant Harry Allen, fled the scene but was chased and aрprehended. Appellant, the driver, and a frontseat passenger were ordered from the car. A search of the car turned up a gray coat, worn by one of the robbers, and two pies. Money was found in the gray coat and on appellant‘s person; a gun and a wallet were recovered near the place where the fleeing passenger was arrested. The deliveryman was unable to identify appеllant as a participant in the robbery.
Following the denial of a motion for a judgment of acquittal, codefendant Harry Allen gave exculpatory testimony in appellant‘s behalf. He stated that throughout the robbery and its immediate aftermath appellant had been incapacitated by the effect of narcotics withdrawal and oblivious to the fact that a robbery had occurred. He conceded his own direсt involvement in the crime.
Allen was impeached by the testimony of the government‘s rebuttal witness, Officer Bobby Collins, who testified that
Generally, where a party fails to request an instruction on limited admissibility of evidence, the failure of the trial judge to give such an instruction, sua sponte, will not be considered on appeal. Dixon v. United States, D.C.App., 287 A.2d 89, cert. denied, 407 U.S. 926 (1972). We have recognized, however, that the potential for jury confusion is so great where prior inconsistent statements are admitted for a limited purpose as to justify the requirement of an immediate cautionary instruction. Id. at 99.
In Lofty v. United States, D.C.App., 277 A.2d 99 (1971), a trial judge‘s failure, sua sponte, to immediatеly instruct the jury on the limited admissibility of a prior inconsistent statement was held to be plain error requiring reversal. See
The dissent would distinguish Lofty on the ground that there the government was impeaching its own witness, whereas in the instant case it impeached a defense witness. It is said that the impeachment of one‘s own witness by prior inconsistent statement might convey the impressiоn that additional substantive evidence is being offered, while impeachment of a hostile witness would not, and that, therefore, the requirement of an immediate instruction is justified only in the former instance.
This distinction was deemed irrelevant in Jones where the court explained that underlying the requirement of an immediate instruction was the policy of restricting the jury‘s exposure to hearsay evidence. Jones v. United States, supra at 40, 385 F.2d at 300. See also United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974). Regardless of whose witness is being impeached, it is unrealistic to assume that jurors hearing testimony of a prior inconsistent statement would consider that statement as anything but substantive evidence unless they were instructed otherwise.4
The dissent contends further that our holding in Dixon v. United States, supra, bars our application of the plain error rule in this case. In Dixon we held that when a defendant is impeached by evidence of a prior conviction pursuant to
After careful consideration, we believe that the high probability of jury confusion in the “prior inconsistent statement” cases which required the exceptional use sua sponte of an immediate cautionary instruction by the trial court is not present in the case of “prior convictions” evidence used for impeachment. . . .
[Id. at 99.]
It is urged finally that
[T]he failure of defense counsel to request such an instruction does not automatically bar this court from reaching the error if the instruction is not given. [Id. at 217, 440 F.2d at 245.]
Reversed.
YEAGLEY, Associate Judge (dissenting):
I am not prepared to extend the scope of the plain error rule any further. Accordingly, I dissent. I thought that our invoking the rule in Lofty v. United States, D.C.App., 277 A.2d 99 (1971), relied on by the majority, was an extremely close question and reprеsented its outer limits. A strong argument can be made that we went too far in Lofty. Neither Lofty nor this case involves the denial of a basic element of a fair trial. The instant case involves only the question of whether an instruction that was given at the end of the trial should also have been given sua sponte when impeaching testimony was admitted. In this case neither the court nor counsel perceived that the situation called for action whereas in Lofty the defeсt was deliberate and not an oversight for the prosecutor had suggested at the time that an instruction be given immediately. Id. at 100.
In the course of the broadening application of the plain error rule there has been a tendency to forget that “plain error” is not the rule but the exception. The general rule, with which we must begin, is that trial errors must be objected to at the time they occur if they are to be considered on aрpeal. Adams v. United States, D.C.App., 302 A.2d 232, 234-35 (1973); Wooten v. United States, D.C.App., 285 A.2d 308, 309 n. 3 (1971); Bunter v. United States, D.C.App., 245 A.2d 839, 841-42 (1968).
Not long after our decision in Lofty this court severely limited the scope of that decision after carefully examining the plain error rule. In that case, Dixon v. United States, D.C.App., 287 A.2d 89, 97 (1972), this court held that its decision was not controlled by a statement in Lofty taken from United States v. McClain, 142 U.S.App.D.C. 213, 218, 440 F.2d 241, 246 (1971), that
“whenever evidence is brought in which is admissible only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautionary instruction” [footnote omitted; emphasis in original]
for the reason that Dixon, unlike McClain and Lofty, did not involve the impeachment of onе‘s own witness, but rather the impeachment of the defendant. Since here, as in Dixon, the impeachment of the
. . . the situation which confronted the court in Coleman v. United States, 125 U.S.App.D.C. 246, 371 F.2d 343 (1966), cert. denied, 386 U.S. 945 (1967), Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967), and Lofty justified an immediate instruction sua sponte by the trial court because jury confusion undoubtedly occurred where trial counsel suddenly clаimed surprise at his own witness‘s testimony, and was then allowed to introduce . . . a prior [inconsistent] statement . . . . [287 A.2d at 99.]
There was no element of surprise in the instant case, and I see no reason to conclude that the jury could have been so confused as to require an immediate cautionary instruction.
It is quite a different situation when a prosecutor is caught by surprise1 and must impeach his own witness with prior statements for it may well appear to the jury that the earlier inconsistent statements were being admitted for the truth of their content as a part of the government‘s case in chief.
In Dixon the court went on to observe that:
In considering the propriety of a rule which would require an immediate cautionary instruction sua sponte by the trial court (unless trial counsel specifically requests no instruction), it is important to note that such a rule would be a departure from the practice found generally throughout the United States. An extensive examination of the law of both state and federal jurisdictions reveals that, as a general rule, counsel must request an instruction on evidence which is admitted for a special or limited purpose . . . . [287 A.2d at 98 (footnotes omitted; emphasis in original).]2
I see no logic in departing from what appears to me to be the sound reasoning of Dixon which I submit should control the result here.
Dixon was not the first case in this jurisdiction to apply that philosophy for it was held many years ago that:
Except upon essential principles of law concerning which it is the duty of the trial judge to instruct the jury whether requested or not, there is no duty to instruct in the absence of a request. And the request must be proper. It is not the duty of a trial judge to recast or modify an erroneous or misleading requested instruction. [George v. United States, 75 U.S.App.D.C. 197, 201, 125 F.2d 559, 563 (1942) (citations omitted).]
The power of this court to notice unobjected to defects affecting substantial rights is discretionary and it has long been held in this jurisdiction that “‘[a]bsent a clear showing of prejudice, we are not disposed to notice alleged errors which are raised for the first time on appeal.’” Hill v. United States, D.C.App., 280 A.2d 925, 926 (1971). See Adams v. United States, supra at 234. It is specifically provided at the end of
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 dis-
tinctly the matter to which he objects and the grounds of his objection. . . .
In a case not involving a failure to instruct, but involving an erroneous instruction not objеcted to, the Ninth Circuit observed that the purpose of the rule is to permit courts sua sponte to notice errors which the parties failed to call to the court‘s attention “but it does not authorize the consideration of matters which another rule specifically states shall not be assigned as error.” Herzog v. United States, 226 F.2d 561, 570 (9th Cir. 1955), adhered to on rehearing, 235 F.2d 664, cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956) (emphasis in original).
The Fifth Circuit applied the literal reading of rule 30 to a case very similar to this involving the impeachment of a codefendant and refused to hold it was plain error not to instruct the jury sua sponte even though no instruction on impeachment testimony was included later in the general instructions, United States v. Easterly, 444 F.2d 1236 (5th Cir. 1971). Also see Blakeley v. United States, 249 F.2d 235 (5th Cir. 1957).
In another case where a prior inconsistent statement of the accused was allowed in evidence without a limiting instruction, none having been requested, the Second Circuit quoted from 1 Wigmore, Evidence § 13 at 301 (3d ed. 1940) to the effect that “[t]he better opinion is that the opponent of the evidence must ask for that instruction; otherwise, he may be supposed to have waived it as necessary for his protection.” The court then added, “[t]he defense may not remain silent in hopes that the district court will fall into reversible error where the possible error could have been passed upon and cured, if need be, by a properly timed objection.” United States v. Curry, 358 F.2d 904, 912 (2d Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 187, 17 L.Ed.2d 100 (1966) (footnote omitted) (emphasis in original). Apparently no instruction of any kind was given as to the limited purpose for admitting the testimony and the court found no reversible error even though the failure could have been deemed to be quite damaging. I find no logical reason why the same result should not obtain here.
In a case remarkably like the one at bar where appellant called a codefendant as a witness who was impeached with a prior inconsistent statement implicating the appellant, but where no instruction was given limiting the usе of the testimony to purposes of impeachment, the Second Circuit, following the same rule as in Curry, supra, said: “Appellant made no request for such instructions at the trial; his failure to make such a request bars him from raising the issue for the first time on appeal.” United States v. Ballentine, 410 F.2d 375, 377 (2d Cir. 1969) (citations omitted).
It is important to one who has a strong defense to have the case carefully and properly tried. But the plain error rule invites a shrewd attorney who has a weak defense tо conclude that his best strategy is to remain silent and let the judge make his own way hoping thereby to “sow error in the record”. If the courts are to grant relief frequently by labeling it plain error we cannot expect defense counsel to help trial courts to avoid error which is essential to a strong adversary judicial system. The time has come to recognize that there must be a line beyond which we will not make an exception to the general rule that an unobjected to error will not be noticed on appeal; otherwise resort to the exception will continue to expand endlessly by feeding on itself. A decision in one close case is being used as authority to extend the exception to another but less justifiable situation just as we are asked to extend it here because of the arguable similarity with Lofty, supra. It is one thing for appellate cоurts to reverse when the trial court has been guilty of misdirection, but quite another to do so for delayed direction.
MR. ARMSTRONG: Well, Your Honor, on behalf of Mr. Johnson, I am aware of the problem that [the prosecutor] has just mentioned.
Counsel for these defendants have to makе tactical decisions as to whether or not to maintain a low profile or object at every point. I made many decisions, as I have made other decisions in the course of the trial, regardless of if my client disliked my failure to cross-examine [the witness] earlier. There is some truth in what [the prosecutor] is saying with respect to further examination, the course it may take, as Mr. Koenick proceeds. But I would have to makе judgments as I go along.
Exceptions to a charge must be specifically made in order to give the court opportunity then and there to correct errors and omissions, if any. Pennsylvania R. R. Co. v. Minds, 250 U.S. 368, 375, 39 S.Ct. 531, 63 L.Ed. 1039 (1919), and cases cited; Allis v. United States, 155 U.S. 117, 122, 15 S.Ct. 36, 39 L.Ed. 91 (1894). Even if some of the instructions were erroneous, the exceptions taken were not such as to require a new trial. [Burns v. United States, 274 U.S. 328, 336, 47 S.Ct. 650, 653, 71 L.Ed. 1077 (1927).]
In Humes v. United States, 170 U.S. 210, 211-12, 18 S.Ct. 602, 42 L.Ed. 1011 (1898), where error was assigned for failure of the court to give certain instructions, the Supreme Court said:
We cannot regard as error the omission of the court to give instructions which were not asked. In Isaacs v. United States, 159 U.S. 487, 491, 16 Sup.Ct. 51, [40 L.Ed. 229 (1895)], Mr. Justice Brown said: “It is no ground for reversal that the cоurt omitted to give instructions, where they were not requested by the defendant. It is sufficient that the court gave no erroneous instructions.” [Citations omitted; emphasis added.]
It appears that so far there has been no specific guidance from the Supreme Court in applying those two federal rules but in view of the clear language it incorporated in rule 30, one might expect it to adhere to its opinion in Humes.
This is not to contend that an appellate court should fail to recognize plain error or that it should affirm a judgment where it is clear an essential element of a fair trial was absent, such as advice to the jury as to the basic elements of the offense or of the standard of reasonable doubt. These are not merely desirable but essential to a fair trial. But here the defect is not of that nature. It is simply one of the court giving an instruction only onсe when it should have been given twice. Absent a clear showing of a miscarriage of justice, we should not be quick to relieve one of a conviction because of so-called plain error where trial counsel perceived no error at the time and the evidence of guilt was convincing.
When errors occur at trial but it is not clear that a substantial right was adversely
I would follow the policy adopted by the Supreme Court and the Second Circuit as reflected by Humes, Burns, Curry, and Ballentine, supra, and hold that appellant‘s failure to request the instruction at trial bars him from raising the issue for the first time on appeal.
Richard Lee MOHLER, Appellant, v. Malcolm W. HOUSTON, Appellee.
No. 9876.
District of Columbia Court of Appeals.
Submitted March 24, 1976. Decided April 20, 1976.
Notes
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. . . .
As noted in the dissent, the Supreme Court has not specifically endorsed the application of the plain error rule to instructional errors that have not been preserved for appeal in accord with Rule 30. But see Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), where following a statement that petitioner‘s failure to request a jury instruction precluded review of this issue under Rule 30, the Court stated:
Nor was there on this score any such plain error in the charge, affecting substantial rights, as would warrant reversal despite the failure to object. See