338 F.2d 543 | D.C. Cir. | 1964
Lead Opinion
Appellant was convicted of assault with intent to commit robbery under 22 D.C. Code Ann. § 501 (1961), after the Juvenile Court waived jurisdiction pursuant to D.C.Code Ann. § 11-914 (1961, Supp. II 1963). On appeal in forma pauperis he assigns numerous errors relating to his trial; we discuss in detail three of his contentions.
The testimony showed that one M. G. Hayes was accosted by two assailants at about 2:30 a. m., who knocked him down and took property from his person. His attackers fled when an Armed Services Police cruiser approached. The occupants of that car, two military police officers, witnessed the entire affray, gave chase and captured appellant. Their testimony constituted the bulk of the case for the Government. The only other witnesses for the prosecution were Metropolitan Police Officers. A Metropolitan Police Officer, who made the formal arrest, testified that at approximately 3:00 a. m. that morning he had assumed custody of appellant from the two military policemen; another officer testified on rebuttal as to certain statements made at the Juvenile Receiving Home by appellant and appellant’s alleged companion, one Belton, who had turned himself in and was retained within the jurisdiction of the Juvenile Court. Belton testified for the defense that he alone had made the assault and gone through Hayes’ pockets. Appellant’s testimony in his own behalf was substantially to the same effect. The complainant, Hayes, was not produced by the Government, although personally served;
(D
The trial judge elected to conduct the voir dire examination of the jury pursuant to Fed.R.Crim.P. 24(a):
“The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.”
Appellant requested that the District Judge make the following query on voir dire: “Would you give greater credence to the testimony of a law enforcement officer merely because he is an officer as compared to any other witness.” Although the trial court possesses a “broad discretion as to the questions to be asked” on voir dire, the exercise of that discretion is “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). In Sellers v. United States, this court held to be reversible error the District Court’s failure to ask on voir dire, when requested, whether any juror would be “ * * * inclined to give more weight to the testimony of a police officer merely because he is a police officer than any other witness * * (Emphasis added.) 106 U.S.App.D.C. 209, 210, 271 F.2d 475, 476 (1959) (per curiam). Accord, Chavez v. United States, 258 F.2d 816, 819 (10th Cir. 1958) (dictum), cert. denied sub nom. Tenorio v. United States, 359 U.
Since we remand for a new trial, we shall treat certain other of appellant’s contentions raising important questions which are likely to arise on retrial.
(2)
When appellant’s juvenile companion, Belton, testified, the prosecutor on cross-examination asked him where he was then residing. Defense counsel twice made timely and pointed objection to this question and the probable response, claiming at the bench that the answer would be “The National Training School” where appellant had been committed for complicity in another charge. The ques
The Government contends that this line of questioning was proper to lay a 'foundation for cross-examination of Belton on his opportunity to discuss the case with appellant and fabricate testimony. This argument suffers from two basic falacies. First, the testimony relevant to this argument was brought forth subsequently when Belton admitted that he and appellant had been together at the Receiving Home, not the National Training School, where Belton had been placed only one day prior to testifying. We assume that the prosecutor was unaware of this fact and that his attempt to lay a foundation of opportunity for collusion was in good faith; nevertheless it was his responsbility to appraise the possible prejudice of the predicted answer before asking a question otherwise probably inadmissible. Secondly, while in Juvenile Court custody pending decision on waiver of jurisdiction, appellant would have been detained on this charge only at the Receiving Home, a place of “temporary detention” provided by the Commissioners of the District of Columbia under the supervision of the Department of Public Welfare.
The Government does not contend that the inquiry was permissible on impeachment grounds; it was not. Although conviction of certain criminal offenses is. a valid subject of examination aimed toward impeachment of a witness,
Moreover, the juvenile himself has a protected interest in maintaining the credibility of his public testimony. Whereas a convict — barring pardon — is forever faced with the hardships of a permanent criminal record,
“An adjudication upon the status of a child in the jurisdiction of the court does not operate to impose any of the civil disabilities ordinarily imposed by conviction, and a child is not deemed a criminal by reason of an adjudication. An adjudication is not deemed a conviction of a crime, and a child may not be charged with or convicted of a crime in any court, except as provided by section 11-1553.”
D.C.Code Ann. § 16-2308 (d) (Supp. III 1964). Congress intended that a child found involved by the Juvenile Court should be insulated from the disabilities attending conviction for a crime.
(3)
After appellant had taken the stand and admitted his presence at the scene of the crime charged, he denied participation in the plan or actual execution of the robbery. The prosecutor then cross-examined him as to certain admissions he purportedly had made to a police officer at the Receiving Home and appellant denied making any admissions. On rebuttal the Government called the police officer, who testified, over objection, as to the alleged admissions made to him by appellant at the Receiving Home while appellant was still in the custody of the Juvenile Court. Ostensibly the testimony about these admissions was offered to impeach appellant’s testimony that he had not discussed the idea of a mugging with his juvenile companion prior to the assault. The Government concedes that testimony as to any oral admissions made by appellant while within the custody of the Juvenile Court would not have been admissible as direct proof under Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961) (en banc).
Whether testimony as to inconsistent statements concerning criminal design made during Juvenile Court custody would be admissible for impeachment when limited to peripheral “non-inculpatory matter,” by analogy to Tate v. United States, 109 U.S.App.D.C. 13, 18, 283 F.2d 377, 382 (1960) (as to a Mallory confession), we need not here decide.
[The 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.” * * On the other hand a defendant cannot “turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. * * * [T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.”
109 U.S.App.D.C. at 15, 283 F.2d at 379. See Bailey v. United States, 117 U.S. App.D.C. 241, 328 F.2d 542, 543-544 (1964) (also quoting Walder to the same effect); Lockley v. United States, 106 U.S.App.D.C. 163, 167, 270 F.2d 915, 919 (1959) (dissenting opinion; same). Assuming without deciding that these standards permit similar use of a Harling confession for impeachment, see note 17
We have examined appellant’s other contentions and find no other errors warranting reversal. The judgment appealed from is reversed and the case remanded for a new trial.
Reversed and remanded.
. The arresting police officer testified that upon vistmg complainant Hayes’ hotel he determined that about two weeks prior to the trial Hayes had moved to North Carolina.
. In Gorin, supra, the proposed question did not include the phrase “merely because he is a government agent.” A similar omission was relied upon by this court in Sellers, supra, to distinguish the affirmance in Chavez v. United States, supra, 106 U.S.App.D.C. at 210 n. 3, 271 F.2d at 476 n. 3.
. The Government attempts to distinguish the present ease from Sellers on the ground that in Sellers the police officer on whose testimony the prosecutor’s case was based was an undercover agent on police work when witnessing the alleged criminal activity whereas here the military police officers were acting merely as civilians. This is a distinction without a real difference; the point is that the jury would be aware of their special status when they testified. In any event, the military police here were more than “witnesses”; they pei-formed the functions of police officers even though in a legal sense they had no power to make any more than a citizen’s arrest.
. The stipulation of the complainant’s Grand Jury testimony, although introduced as direct evidence and implicating appellant in the assault, varied slightly from the testimony of the two military policemen and was not nearly so damaging as was their testimony.
. D.C.Code Ann. §§ 16-2306, 2313(c) (Supp. III 1964); D.C.Code Ann. §§ 3-116, Fourth, 126(4) (1961); D.C.Code Ann. § 1 App. p. 129, Reorg.Order No. 58, Part IV, subd. H; cf. United States v. Dickerson, 106 U.S.App.D.C. 221, 223-224, 271 F.2d 487, 489-490 (1959).
. 18 U.S.C. § 4082; 5 U.S.C. § 133t note (1958), Reorg.Plan No. II, Part 1, § 3 (b) (1939).
. See D.C.Code Ann. § 16-2308 (a) (2) (Supp. III 1964).
. Moreover a broad, non-prejudicial question could have been framed as to how often and for what length of time appellant and the juvenile had seen each other and whether they had in fact discussed this subject. Cf. Sykes v. United States, 79 U.S.App.D.C. 97, 98, 143 F.2d 140, 141 (1944) (per curiam).
. See, e.g., Goode v. United States, 80 U.S.App.D.C. 67, 68, 149 F.2d 377, 378 (1945) (per curiam); D.C.Code Ann. § 14-305 (Supp. III 1964): “The fact of conviction [of crime] may be given in evidence to affect * * * credibility as a witness, either upon the cross-examination of the witness or by evidence aliunde * * *.” See also III Wigmore, Evidence § 980 (3d ed. 1940); Bostic v. United States, 68 App.D.C. 167, 168-169, 94 F.2d 636, 637-638 (1937), cert. denied, 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095 (1938); Campbell v. United States, 85 U.S.App.D.C. 133, 134-135, 176 F.2d 45, 46-47 (1949).
. See Price v. United States, 282 F.2d 769 (4th Cir. 1960) (per curiam) (dictum following Thomas), cert. denied, 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed.2d 812 (1961); White v. Reid, 125 F.Supp. 647, 650 (D.D.C.1954). The Thomas case has been cited with approval by this court recently in Pee v. United States, 107 U.S.App.D.C. 47, 50 n. 12, 274 F.2d 556, 559 n. 12 (1959), and Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 374 n. 14, 236 F.2d 666, 669 n. 14 (1956).
. D.C.Code Ann. § 14-305 (Supp. III 1964), supra note 9.
. Cf. Thomas v. United States, 74 App. D.C. at 171, 121 F.2d at 909.
. Juvenile offenders are not given the same procedural constitutional rights as adults in a criminal case. Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959); White v. Reid, 125 F.Supp. 647 (D.D.C.1954). But cf. Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 374 n. 18, 236 F.2d 666, 669 n. 18 (1956); In re Poff, 135 F.Supp. 224 (D.D.C.1955). “These strict [constitutional] safeguards * * * are wholly inappropriate for the flexible and informal procedures of the Juvenile Court which are essential to its parens patriae function.” Harling v. United States, 111 U.S. App.D.C. 174, 177, 295 F.2d 161, 164 (1961) (en banc); see United States v. Dickerson, 106 U.S.App.D.C. at 221, 225, 271 F.2d at 487, 491 (1959). Thus, the Juvenile Court’s method of finding of involvement in law violation lacks the inherent safeguards which the adversary process affords to an accused in a criminal trial where a conviction is one possible result. Further, society makes no effort to avoid the stigma of moral and legal culpability on the convicted person. Compare Shioutakon v. District of Columbia, 98 U.S.App.D.C. at 374, 236 F. 2d at 669. Thus, the fact of criminal conviction is a permissible indicator of basic untrustworthiness and dishonesty and serves logically to impeach the testimony of a convict.
. Compare Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962) (per curiam).
. “There is no more reason for permitting their use for such a purpose, than there would be to pry into school records or to compile family and community recollections concerning youthful indiscretions of persons who were fortunate enough to avoid the juvenile court.” Thomas v. United States, supra 121 F. 2d at 909.
. See D.C.Code Ann. § 16-2316 (Supp. III 1964) (calling for liberal construction of the Juvenile Court Act).
. Nor do we reach appellant’s contention that the reasoning of Harling v. United States, supra, requires total exclusion of all statements made during Juvenile Court custody as distinguished from the permissible limited use for impeachment purposes of evidence obtained in violation of a defendant’s constitutional or statutory rights. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L. Ed. 503 (1954); Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542 (1964); Tate v. United States, supra; Lockley v. United States, 106 U.S.App. D.C. 163, 166, 270 F.2d 915, 918 (1959) (dissenting opinion). See also White v. United States, No. 18355, D.C.Cir., Sept. 17, 1964.
Concurrence Opinion
(concurring).
I join in the foregoing opinion because I think the Sellers case requires reversal. I dissented in that case and still think it is wrong, but I am bound to follow it.
(concurring).
I agree that the conviction should be reversed. In the interest of brevity, I shall simply state my reasons seriatim.
1. The trial court denied a defense motion that defendant be tried as a juvenile without holding a hearing to determine the legal and factual basis for the motion. 11 D.C.Code § 914 (1961); Franklin v. United States, 117 U.S.App. D.C. 331, 336, 330 F.2d 205, 210 (1964); Pee v. United States, 107 U.S.App.D.C. 47, 50-52, 274 F.2d 556, 559-561 (1959).
2. The trial court refused to ask the jurors on voir dire examination whether they would place more credence in the testimony of a law enforcement officer, merely because he is an officer, than in the testimony of any other witness. Sellers v. United States, 106 U.S.App.D.C. 209, 271 F.2d 475 (1959).
3. The trial court permitted for impeachment purposes, over objection, the use of alleged statements made by the appellant, a juvenile, while in the jurisdiction of the Juvenile Court. Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961).
4. The Government was permitted, over objection, to bring out for impeachment purposes that a juvenile defense witness had been committed by the Juvenile Court to the National Training School for Boys on another charge. Pee v. United States, supra.
5. The trial court denied a defense motion for production of a report filed by a police officer who testified for the Government. Such reports are producible under the Jencks Act, 18 U.S.C. § 3500. Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Campbell v. United States, 365 U.S. 85, 92-99, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).
6. The trial court refused on request to give a missing witness instruction relating to the absence of the prosecuting witness. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1893); Billeci v. United States, 87 U.S.App.D.C. 274, 278-279, 184 F.2d 394, 398-399, 24 A.L.R.2d 881 (1950).
The above enumeration of error is sufficient in my judgment to require a new trial.