United States v. James A. Lewis

UNITED STATES America LEWIS, Appellant. A.

James

No. 24875. Appeals, Court

United States District Columbia Circuit.

April

As Amended June C., Washington, Palmer, D.

Carroll F. appellant. brief for on the Atty. Flannery, U. S. Thomas A. A. filed, John the time the brief was Hibey, Guy H. Terry, Richard A. Cunningham, Attys., III, Asst. U. S. appellee. were on the brief for Judge, FAHY, Before Circuit Senior ROBINSON, Cir- and McGOWAN and Judges. cuit III, ROBINSON, W. SPOTTSWOOD Judge: Circuit appeal appellant’s second follows This single charging trial on an indictment robbery,1 unarmed counts of armed dangerous robbery2 carrying a weapon,3 and two counts of assault dangerous weapon.4 trial a The first jury was unable to ended when the agree; appellant’s con- second led to charges un- viction on all of the but ap- robbery. armed issue sole validity peal a prosecutor judge granting leave trial appellant’s proposed to cross-examine witnesses, called, their as to appellant arrest of awareness of recent violating charge nar- on a the federal error, fur- we cotic laws. We find ther that the circumstances find reversal. the case it does not warrant however, need, vacate We do find a to one the conviction and sentence as modification, we the counts. With that affirm. (1967). (1967). § D.C.Code 22-3202 D.C.Code 22-3204 §§ § 22-502 D.C.Code D.C.Code judge prosecutor reminded the I trial, at which same at the first that in suit emanated from indictment presided, judge had the Government employees holdup daytime two query appellant’s charac- been allowed to they walked therefrom Safeway as store appel- awareness ter witness her deposit of to make a bank

toward use of a lant’s arrest unauthorized four receipts. trial, At the second store prosecutor made clear vehicle. appellant one as eyewitnesses identified ruling permitting he wished staged holdup, and men who of two range of cross-examination as same strongly pointed to his other evidence ar- and well the narcotic Appellant participation in affair.5 character wit- rest the event presented eyewit- an alibi and asserted nesses were used. respects corrobo- some nesses who transpiring version of events rated his during trial, presen- Later robbery.6 before the ap- tation of the case for the defense end, subject again proached appellant presented was trial, an the first On the conference, a and discussed at bench the his charac- who testified that a witness good prosecutor request honesty, peace renewed for leave order for ter interrogate attorney prosecuting the to character witnesses good,-and the was knowledge of permitted, of to their two arrests. the on cross-examination was witness, Defense counsel advised that he had not whether to ask character the opportunity appel- an prior of had to see the character had heard of a arrest she witnesses; them[,] “I I charge want talk to of to of unauthorized use lant them,” use he reminded the Two not vehicle.7 weeks before motor judge. prosecutor appel- trial, and the trial commencement of the second alleged judge for then offez'ed shoz’t z*ecess for an viola- arrested lant was purpose, but ruled that if character that of narcotic laws.8 tion federal the prosecutor origin confronting were called the to witnesses traces its issue us inquire on to could cross-examination as arrest. that they arrests. had heard of the whether trial, the as the Govern- At second taken, and the trial The recess was when completion, ment’s neared case-in-chief without resumed the defense rested prosecutor, of absence testimony. presenting character courtroom, jury inquired to from the ruling, Since, following judge’s again evidence would whether character used, not were appellant’s character witnesses De- be offered behalf. aspects does not establish the re- record he had fense counsel9 stated that community reputation appellant’s to of quested character to two witnesses ap- they On testified. would have to which hand but that was uncertain as he however, good trial, pellant’s first he would call Counsel whether them. good reputation peace, explained arranging for order and that after for attested, honesty is presence noth- was there he the witnesses had ing pre- suggest that, appellant’s to aside from learned of narcotic just witness, additional to sentation and that he “would like talk have my they second trial would endeavor at the character witnesses to see being were During differed. The offenses tried colloquy, know it.” about (1964), repealed, since 84 Stat. 5. We discuss the evidence adduced at the (1970), saving IV, clause for with second trial in Part infra. pre-repeal violations, Stat. 5, supra. 6. See note See D.C.Code Appellant’s the second trial counsel represented “an him Described at trial as arrest had first. vio- also Act,” Appellant represented lation of the Harrison different Narcotics charge appeal. indicates that record counsel on predicated upon 4704(a) 26 U.S.C. § posed violence, arrest a dilemma of and before cent narcotic all crimes magnitude. greater al judge appellant wit- If the witnesses had ruled taken good ready it, knew of their avowal behalf. in his own ness stand naturally reputation be than good-character was more vulnerable evidence would fore, peace- previously un and if had been pertained to both have traits appel familiarity veracity, no we have aware of it their fulness and community reputation appellant not lant’s open was wider would cause to believe that legal profes sought As the character witness- debate.12 from his have gotten. may pay help knows, sion well the accused could have all he es judge dearly prosecutor the trial use of second-rate charac Both the witnesses;13 testi- ter in the instant case appear that to have assumed appellant’s ef- second to the narcotic ar cross-examination as monial content of brought duplicated In the first. rest would itself have the fact fort would have challenge assessing of that the attention of the arrest recogniz jury. difficulty ruling, then, had the We have no we assume they ing inquiry called un about an arrest for character witnesses been thing, appellant bore authorized one use a vehicle is testified would have community disclosing aof an arrest for in the but that law-abiding truthful, something citizen.10 a narcotic violation is else again. ledger, On the other side of the recognize that the decision We also viewpoint, from counsel’s there would was tacti- character witnesses use the good showing no at all if good reason, but, cal, very as we and for the witnesses were not called. see,11 does consideration later shall ruling judge’s at- from not shield the Since, after the recess taken for emphasized defense counsel tack. As counsel’s interview with the character during colloquies preceding the the two witnesses, the defense rested without appellant’s just ruling, he learned of had ado, further is it obvious the show not had a chance narcotic and had arrest ing on character was abandoned in order witnesses knew to ascertain whether the prosecutor’s to questions avoid the re trial, judge had of it. On first specting clear, the narcotic arrest. It is permitted inquiry appellant’s charac- however, that the decision not-to use knowledge of his ter witness as to her character witnesses does not immunize use of a motor arrest for unauthorized appellant complains. action of which Particularly with the same vehicle. judge presiding prosecutor The judge solicited and the trial trial, second at the ruling rendered a indulgence expectation of a similar —this questioned character witnesses could be extending the narcotic arrest time to as to whether had heard of his ar counsel, large defense also—loomed to charge. rest the narcotic The deci appellant represented at who had forego sion to character evidence was first. only ruling reached after the was made. yield There was no reason whatever to then, understandably, Very counsel presentation on the character which de plain to made his intention interview planned keep fense counsel had save to witnesses on hand the sec away from mention of that undertaking arrest. On to ond trial before further contrary, it would be ridiculous to as was evident that offer them. prosecutor It presentation sume that would not to ask would be allowed about gone judge have forward had the ruled the re the unauthorized-use States, Compare Wooden, See Michelson v. United 335 U. v. 137 United States 469, 479-480, 213, U.S.App.D.C. 1, 3, 251, S. 93 L.Ed. 420 F.2d ; (1948) States, however, v. (1969). See, 80, Shimon United note infra. U.S.App.D.C. preceding note 14. See text infra (1969) ; McCormick, Evidence at text at infra judge’s community His for those traits.16 way. rul- It was the other - presentation, of number ing opened the un- terms the door to which may traits, such narrow or as be as inquiry context wanted —in long as it re- broad as chooses so position, he prosecutor’s germane trial.17 certainty. to issues on It blink mains would awas virtual may ruling did not influ- Good-character evidence itself reality say the to generate decision, not ac- doubt indeed it did reasonable ence must, guilt,18 entitled tually and the accused is then, scruti- dictate it. We jury have the so instructed.19 whether nize the ascertain prejudi- correct, it was and whether options as The Government’s if incorrect.14 cial character-proof depend upon what accused undertakes to do. Conviction II beyond upon proof must rest crime governing the principles of the elements of a reasonable doubt in criminal charged, evidence specifically of character use crime and evidence delineat general been predisposition in this circuit have trials crime toward prosecutor decisions, is cannot offer past need taboo.20 The brief ed ac accused bad-character evidence unless here. summarization good cused more of his char first introduces evidence advance one or elect to character;21 then, prosecutor’s innoc even acter traits as evidence reput proof community does, proof is restricted to he If ence.15 ation,22 or traits and to trait of his confined to evidence 253; Wooden, supra note 420 F.2d v. Shimon United States United States, supra U.S.App.D.C. U.S.App.D.C. 420 F.2d at note Fox, at 453. States 252-253. United Cf. F.2d 131 States, 19. Michelson v. note 213; at Fox, supra U.S. S.Ct. Unit 15. Michelson United 213; ed F. Unit Fox, supra 14, F. 2d 131. ed v. note 473 States 131; States, supra 2d v. United Shimon States, supra 20. v. Michelson United note U.S.App.D.C. 156, 13, note 122 at 352 213; 13, 475-476, at 335 U.S. 158, ; McCormick, § F.2d at 453 Evidence Fox, supra 14, v. note United States 473 (1954) Wigmore, ; 1 Evidence at 333-34 131; States, v. su F.2d Awkard United (3d 1940). ed. §§ 55-56 pra 16, U.S.App.D.C. 167, 122 at note States, supra 643; Josey States, 16. 352 F.2d at v. Michelson v. note United United U.S.App.D.C. 809, 13, 213; 477-478, at 135 F.2d 335 69 77 U.S. S.Ct. (1943). known, Fox, supra 14, are As is well there United v. note 473 811 indicating 131; exceptions States, 122 evidence F.2d Awkard v. United where independ U.S.App.D.C. 165, 1, is 166 n. 352 F.2d commission of other offenses ; 641, (1965) ently 642 n. 1 v. admissible to establish element Shimon United States, supra 13, U.S.App.D.C. generally note 122 453; of the offense on trial. Cormick, Mc See (1954) ; 156, 154, at 352 F.2d at v. Evidence 157 §§ Stewart 70-81, States, App.D.C. 101, Wigmore, id. §§ 104 F. 1 Evidence §§ United 70 (1939). Proposed (3d 1940). 2d Fed.R.Evid. ed. 234 405(a) char would extend the mode of 20, States, supra Josey note v. United opinion testimony. acter-proof to include U.S.App.D.C. 323, 811; at at 135 F.2d 77 App.D.C. supra 14, States, Fox, v. 59 note United States Crawford United 979, (1930); 356, 358, 41 McC F.2d 981 F.2d 131. 473 157, (1954) ; ormick, § Evidence at 327 States, supra 18. Michelson v. note United (3d 1940). Wigmore, Evidence ed. § 213; Edg 13, 476, at S.Ct. U.S. States, supra ington States, 361, Stewart United v. United See 158, 16; McCormick, (1896) ; 363, 72, at § Evidence note 41 L.Ed. Proposed supra Fox, But see Fed.R. note United States 405(a). Wooden, 131; Evid. United States U.S.App.D.C. supra note ness, good-reputation testimony character evidence which the accused’s own may doubted if the has heard be witness rela ted.23 acquaint report, and the witness’ When, however, a character repu community ance with the accused’s witness, either for the accused or may tation be if he has not disbelieved prosecution, offered, he is becomes indulged solely inquiry heard.25 The subject to cross-examination as to purpose, jury for that must qualifications just like testimonial instructed to limit consideration of the probe other witness. on cross-ex interrogation to an assessment matters, may amination extend to those testimony.26 worth of the witness’ among legitimately others, which affect frequently This court has sustained knowledge the witness’ accused’s inquiries type,27 of this has also rec but community reputation for the character ognized danger prac inherent in trait traits which Ac he confirms. Merely tice. to ask a character witness cordingly, settled, it is well here both get knowledge report about his is to elsewhere, ap it become reported jury; facts once before propriate on cross-examination to ask there, notwithstanding judge’s limit good-character he has witness whether ing instruction, they may influence the reports particular events, heard in jury’s determination the issue cluding prior convictions or arrests of guilt.28 then, surprisingly, Not accused, which are inconsistent with practice criticism;29 has drawn has he testified.24 nigh remains well universal the state Questions permitted courts,30 of this sort are federal courts it might stay.31 here to credibility test of the of the wit (prior arrests) ; Fox, supra note 16 United Clark v. States v. United note States, supra (prior arrest). supra note 25 473 F.2d 131. See also eases cited Williams, also United States v. 141 U.S. App.D.C. 133, 135, 24. See the numerous cases collected in (1970) (prior arrests). principle Annots., (1931), 71 A.L.R. 1504 47 A.L. fully recognized lias been in other cases (1956) ; Wigmore, R.2d 1258 3A Evi wherein, pre under the circumstances (Chadbourn dence 913-20 n. 1 sented, allowance of the was held 1970). jurisdictions ed. A few subscribe Fox, to be erroneous. United States v. contrary McCormick, rule. See supra (prior arrest) ; note 14 Evidence § at 335 n. 14 supra Wooden, (prior States v. convictions) ; note 14 decisions this circuit are collected States, Awkard v. United in note infra. supra (prior note 16 arrests and convic States, tions) ; Awkard v. United Shimon v. United U.S.App.D.C. 352 F.2d 643; States, supra (prior at Shimon v. at United F.2d 452-455 administrative 13, U.S.App.D.C. 156, charge falsification). note 122 at 352 453; States, F.2d at Stewart v. United States, supra 28. Awkard v. United See supra 16, App.D.C. 101, 102, note 70 at 16, U.S.App.D.C. 167, 122 at note 170, 169- 235, 236; 104 F.2d at v. Clark United 643, 645-646; at 352 F.2d Shimon States, App.D.C. 335, 336, 57 23 F.2d States, supra 13, v. United note 122 U.S. 756, 757 App.D.C. 156, 453; at at Mc 352 F.2d States, supra Cormick, 158, 26. Michelson v. See United at 336-38 § Evidence 13, 472-473, (1954) Wigmore, ; note 335 U.S. at 69 S.Ct. at § 3A Evidence 988. 3; States, 213 n. U.S.App.D.C. 48, 54, Coleman v. United 137 (Chadbourn 1970). 920-21 ed. 616, 420 622 States, supra note 29. Awkard v. United See (1969) ; States, supra Awkard v. United U.S.App.D.C. 167, 16, at 352 122 16, U.S.App.D.C. 167, 122 note at 352 158, 643; McCormick, Evidence at § at F.2d at 643. (1954) Wigmore, ; Evidence 3A States, supra 27. Coleman v. note United 1970). 988, (Chadbourn ed. at 920-21 26, U.S.App.D.C. 53-55, 137 at 420 F.2d (prior convictions) ; Josey at 621-623 v. 24, supra. in note cited 30. sources See States, supra 20, United note 77 U.S. 405(a) Proposed Fed.R.Evid. 31. See App.D.C. (prior 323, at 135 F.2d at 811 Advisory See also Note. arrest) ; States, supra Committee’s Stewart v. United

639 called, pellant’s witnesses, however, have, de character courts The designed either of his whether had heard of veloped of restrictions a series previous two ar- potential arrests. mitigate The One hazard. charge on a of unauthor- about rests occurred witness is to be asked matters the vehicle, pro- ized of a use motor and the the trial be established should first priety as that arrest is judge’s events.32 actual as satisfaction trial, in appellant’s the first issue this court. On put questions should to the witness exam- character witness was narrowly carefully framed.33 be ined to her awareness of questions, course, be re must appeal is not it contended on this affecting stricted to events leeway at the second trial similar placed in has the accused trait traits improper. would have been relationship While issue;34 propriety deter is their unauthorized- between the reputa comparison “by mined reputation appellant’s use arrest for 35 process demands asserted.” tion concerning veracity dubious,39inquiry is supervision; discretion close “[w]ide knowledge character witness’ heavy responsibility accompanied by might appropriate effort to test practice protect from courts any good representation community any to the And obedient misuse.”36 good peace order.40 principle governing use of evidence repute character, criminality,37 As to in for that other trait indicative of quiry permitted when arrest unauthorized use should be degree probative of a vehicle bore substantial “the value of the information relevance,41 particularly outweighs might in view of be elicited 38 temporal proximity prejudice that arrest to the defendant.” apparent offense on trial.42 It is not III of this case that the circumstances bar, already probative prejudice In the case at balance of value and noted, prosecutor proposed ap- strongly to ask would so favor exclusion of States, supra States, supra Michelson v. 13, note 36. United Michelson v. United note 213; 473-474, 13, 480, 335 at 69 335 U.S. at 69 at Ac S.Ct. States, supra States, supra 13, cord, Shimon v. United note Awkard v. United note U.S.App.D.C. 156, 16, U.S.App.D.C. 167-168, 122 at at 453. 352 F.2d at F. 643-644; States, 2d at Shimon v. United supra States, 32. See Michelson United supra 13, U.S.App.D.C. note at 156- 13, 472, 213; note 335 U.S. at 69 S.Ct. 157; 352 F.2d at 453-454. supra 26, States, United note Coleman v. 622; supra U.S.App.D.C. 54, at 420 F.2d at See cases cited 13, supra States, Shimon v. United note supra 16, States, 38. Awkard v. United note U.S.App.D.C. at at 352 F.2d U.S.App.D.C. F.2d at at States, supra Accord, Shimon v. United U.S.App.D.C. States, note Michelson United Compare 213; v. United F.2d at 454. Robinson note 335 U.S. at States, U.S.App.D.C. States, F. United Coleman v. ; Bradley (1972) 54-55, 2d United U.S.App.D.C. 420 F.2d U.S.App.D.C. 7, n. States, supra 13 & 622-623; v. United Shimon & n. 29 433 F.2d 453-454; Stewart v. United 352 F.2d at Lucas, 138 U.S. Proposed States, supra 16. see note But ; (1970) App.D.C. 186, 663 426 F.2d Advisory (a) 405 Commit Fed.R.Evid. U.S.App.D.C. States, 133 Davis v. United tee’s Note thereto. 453, 169-171, 167, 409 F.2d 14, (1969). Fox, supra 34. United v. note States III, See also Part 473 F.2d 131. infra. at notes 51- in text 40. discussion See infra States, supra note 55. v. United 35. Michelson 484, 13, Ac at 222. at 69 S.Ct. 335 U.S. notes 51-55. 41. text at See infra 14, Fox, supra cord, note United States v. occurred Wooden, arrest 131; 42. unauthorized-use v. United States F.2d 473 prior to approximately 2-3, U.S.App.D.C. ten months supra 10, at 137 note on trial. the offenses date of F.2d at 252-253. 420 640 overruling reason, require impeach impair of integrity an or as credibility judge’s permit happens discretion it.43 the of a witness. It trial guilty.”47 to the innocent as well as the judge’s much of the So only recently Consequently,' said, we questioning as authorized arrests, more, “evidence of without knowledge of witnesses’ may . not be introduced for complaint on arrest —the narcotic purpose testing credibility of of appeal on somewhat different —stands directly indirectly through defendant questioning ground, could however. 48 witness,” his character and that theme by appellant’s justified introduc not be pervaded has our decisions over of most good reputation tion of a for of evidence past decade.49 Not the of our least veracity.44 sure,

truth To this be any probative concern has been that con indulged impeachment court has might tribution the arrest have made showing by testifying a of accused credibility of accused or the —either previous of off conviction narcotic greatly outweighed by witness —was theory enses,45 rests “on the prejudice on the inflicted issue willingness that a demonstrated to com guilt.50 may mit crime indi some kinds of well willingness justification, But cate to lie on at least to some ex- witness tent, found, might however, appel- cannot stand.”46 same said for be in guilt good community an lant’s for the arrestee introduction reputation good peace proved. for remains to be “Arrest without order.51 States,52 not, In more in in does law more than Michelson v. United charac- presented). 43. text at note 50. circumstances See See also D.C. infra (Supp. 1972). Code V § 14-305 44. ad those character traits are When Fox, supra by accused, 14, 46. the time in issue United States v. note vanced Sprague, 473 F.2d at the time of trial. See State v. 136. 788, ; (1900) 419, 64 45 A. N.J.L. 790 supra States, 47. v. note Michelson United 485, 450, Holly, State 155 N.C. 71 S.E. v. 482, 13, at 335 at 222. State, 495, (1911) ; 94 Lea v. 453 Tenn. Fox, supra 14, ; note (1895) 48. 473 United States v. 29 Mohler v. Common S.W. 900 713, 454, wealth, F.2d at 136. Va. 111 S.E. 461- 132 is when the 462 That accused supra Fox, note 49. v. See States United course, and, at time which testifies insights Wooden, supra 14; note v. States United veracity regarding impor become 3, U.S.App.D.C. 14, 420 F.2d at at 137 reputation Consequently, tant. one’s States, supra 253; note v. United Awkard honesty he be a non- testimonial —whether States, supra 16; note Shimon v. United party or the accused himself —is witness 155-158, U.S.App.D.C. 13, F. at 122 352 by evidence his com to be established extent that these 2d at To 452-455. munity reputation at the time trial and may represent departure from decisions prior period during thereto. remote Josey v. United decisions the earlier Null, 1178, v. 415 F.2d 1180 United States U.S.App.D.C. 20, States, supra at note (4th Cooley State, 1969) ; Ala. v. Cir. 323, 811, and v. United at Clark 135 F.2d (1936) 725, ; 407, State So. 25, States, supra ex note 204, 1147, Dillman, Iowa N.W. 183 (1918) ; Supreme plained intervention Goehring v. Common 206-208 wealth, Michelson decision landmark Court’s (Ky.1963) ; S.W.2d supra States, note United Camp, Pryor rel. Okl. ex v. State supra Fox, note States United Thus 38 P.2d 131; issue, United States v. Wood respecting F.2d rule, time differs U.S.App.D.C. supra en, at reputation respect note for truth and 253; hand, Awkard v. United veracity at 420 F.2d one on the U.S.App.D.C. good peace order on the other. 644-645; 168-169, Shimon 56-57. at notes See text infra States, supra note 122 U.S. v. United App.D.C. McIntosh, U.S. United at 454. App.D.C. 426 F.2d (1970) ; Brooke v. text 1233-1234 States, 25-26, 385 Supra (in unique (1967) 279, the 285-286

641 accused, fore trial, his the commencement of second on trial the ter for witnesses ten officer, months after occurrence of bribery testified aof for federal being good for he reputation offense which for “hon- was that he had a point “being tried. The in time at which a esty and for and truthfulness” good peace for character trait law-abiding order On cross-examina- citizen.” permitted was relevant to the issues was the date prosecutor was tion, trial,56 offenses they the ac- heard that ask had whether favorably effort to establish it previously would arrested had been cused showing receiving goods. Supreme have limited to a of been his stolen community reputation ques- therefor at that upheld propriety Court proof reputation at tioning. by comparison time.57 a Since “It is not given may Court, time tend to indicate trial,” what said with crime on reputation is,58 reputation later at a time his by comparison “but might may judge character witnesses have al- been whether that a court asserted testify reputation subject a lowed to exis- prior arrest be made should added, during period prior So, tent to and not re- inquiry.”53 the Court mote from the offense date.59 On “[b]y permis- test was this hand, community’s other proper since It cross-examination view sible. was reports the accused’s character could for receiv- well be of his arrest because admitted, gossip frequently ing affected goods, tend would stolen on the heels he follows criminal to weaken assertion law-abiding charge, community in citi- known as an honest charge publicized after became take zen. cross-examination might trustworthy ground testimony not be index to it is as the as much designed verify.”54 reason, actual character.60 For this utiliz- cases generally reputa- legion,55 ing approach courts have held that a are the same principles es- subsequent publication that the is evident tion controlling significance portend pouse charge on admissible is here. evidence.61 A number courts have also is, however, There one fea good- no which has that cross-examination ture of the instant case stated knowledge counterpart Appellant’s on their character witnesses in Michelson. indicating place misconduct two be- of events narcotic took weeks arrest 1618, Wigmore, at 222. at 491 Evidence § 69 S.Ct. 5 53. 335 U.S. 1940). (3d ed. 484, 69 Id. at 44, Null, supra note v. 59. United States Annots., A.L.R. 71 cases collected See Bryant 1180; v. United 415 F.2d at 1258, 1504, 1530-1532 (1931), A.L.R.2d 47 (5th 378, Cir.), cert. 387 257 F. 1297-1299 (1919) ; denied, v. Dixon 117 People 307, 812, 242, Willy, State, 243 133 N.E. S.W.2d Ill. 75 v. 301 189 Ark. Baldanzo, (1921) ; ; Bugg, 581, (1934) v. 292 v. 316 Mo. 865 State State 727, 498, 725, ; 49, (1927) A. A.L.R. 67 Commonwealth 106 N.J.L. 148 S.W. 50 Tel., ; 584, 870, (1930) White, v. Portland A. 871 Mannix 271 Penn. 1207 115 145, Edwards, 172, 138, (1922) ; 2d Utah A.L.R. 13 23 P.2d State v. 144 Or. Wig (1962) ; State, 464, (en 1933) ; 51, P.2d banc Strader (3d 1940). more, A.L.R. ed. § Evidence Tenn. 344 S.W.2d Commonwealth, ; (1961) Mohler v. 2d (3d Wigmore, § Evidence 60. See 5 111 S.E. at 461-462. 1940). ed. Hobbs, 172 N.W.2d 275- State Wigmore, Evi- in 5 61. See cases collected (Iowa 1969) ; Allen Common (3d ed. at 492-93 n. dence Ky. wealth, 119 S.W. veracity Reputation 1940). truth and (1 State, 909) ; Tenn. Moore v. exception. See distinct also S.W. supra. cases cited 642 cross-examination otherwise presentations which the part, like direct accused’s themselves, could have. be lim reputation should

on character-witness probe amination evidence,64 tation realize reputation is substantive ited to awareness paraging and the ference predicament the accused’s in our spired truly events witnesses which ence in may ability rence so fact Should restricted, time in issue ordinarily that even if his be of the offense on into before may view, is a wholesome these function does reflect his own accused’s event protect unavoidably admissibility. The cross-ex testimony well embarrass credibility, may disadvantages presentation of the time should be good reputation. himself. is the cutoff cross-examination be accentuated questions to character best or unveil not make events which presentation tending real jury’s in brings evidence, while observed. issue only The accused’s the accused’s this after admonition, character.65 attention,63 subsequent good-repu to heaped on for point ^[62] That, may not response prove by differ occur a dif Since tran ais dis We for which judge. deem the prejudicial exclusion to be dealt with merous and subtle ditionally ceedings sure more inexorable rule pearing. significance;70 is an scope objectionable perhaps could edge the final should, unobjectionable.71 While shape issue.68 only of events of discretion topic,69 unacceptable in judges Some discretion keeping advertent to these a desirable cross-examination, respecting subsequent analysis problem Not course, Not testimony,66 questions exploring knowl judge’s have as to every occurring have exercised over some best of reasons. But every primarily outweigh be reached the matter should be under considerations”67 A decision to imparts to the degree situation the broad latitude events otherwise subject. subsequent in the matter discussion after the admission nor a its by dangers, than is to the “nu cautiously, flexibility probative the trial calls for topic A mea permit events event made time pro tra one ap we so is handling accused, prejudice left to careful the trial he suffers judge, subject appellate correction probative value overbalance the mishandling where is clear.72 credibility witness the character 621-623, F.2d at we in where sustained Wigmore, in 5 62. the cases collected See quiry concerning knowledge of three con (3d 1618, 1 ed. n. at 492-93 Evidence 1940) Annots., petit larceny, one of which victions 1504, ; 1532- A.L.R. 71 subsequent occurred to the offenses 1258, (1931), 1300- A.L.R.2d 1534 47 Wolfson, v. trial. See also United States 1302 1968), 779, (2d F.2d Cir. 405 785-786 supra 63. text at See note 28. denied, 946, 1275, cert. 394 U.S. 89 S.Ct. ; (1969) 22 v. supra L.Ed.2d 479 Sloan United at 64. See text note 61. 1929). States, 902, (8th 31 F.2d Cir. supra 65. See text at note 60. Smith, Cal.App. 344, People v. Cf. States, supra 66. v. P. 1022 See Michelson United 213; 13, 480, note at 335 U.S. S.Ct. supra 70. cited See cases Williams, supra 27, United v. note States, supra United note U.S.App.D.C. 134, See Shimon at at F.2d U.S.App.D.C. 157, at States, supra 288; Shimon v. United U.S.App.D.C. at 454. F. note 2d at 453. supra States, United note See Sloan also 31 F.2d at Michelson States, supra 67. Michelson v. note United supra States, note 335 U.S. v. United 335 U.S. S.Ct. 213. 213; United States g., States, E. Michelson v. United (6th Blane, Cir. 483-484, 335 U.S. at 1967). Coleman brought trial The discretion are to the ul which We thus judges thus to exercise is question in the case us. are summoned timate before ruling judge ap an takes informed discretion—one which Did the trial err that witnesses, pellant’s pro into all deserv if account relevant character factors ing prosecutor of consideration.79 The discretion duced, could be asked the ary judge acts knowledge function is aborted if the the about their of narcotic to said, without the information essential While, is as we have arrest? comprehension and of those treatment find, appellant’s reputation for truth sue over That, hap factors. we is what veracity justify such an and would not pened judge the ruled that reputation here. When inquiry,73 an issue over his good-character appellant’s witnesses good possibly peace could.74 for order questioned could be their aware as to propriety the the cross-ex Thus of arrest, the ness of the he was in upon narcotic depended largely the amination testimony aspects pivotal dark on particular appellant’s of approach which give. did would witnesses He presentation take. If would not speak would whether witnesses reputation know for truth and confined to a reputation peace for to veracity, inquiry proposed by the good order, reputa prosecutor instead to his order.75 would out of So be veracity, tion for truth and or whether presentation if were also would be quality of would vouch for the reputation peace to a for limited peace good did not existing both.80 He know—if prior order at or to — n good topic unless, order the testimonial were date of the after a offenses76 reputation factors, whether the attest weighing would be competing all there of ed as of the offense of some date or as heavy in the Govern overbalance was expected later time. These facets of appellant if favor.77 even ment’s And heavily testimony of on the bore limits develop to as a undertook law-abiding permissible cross-examination,81 and a period citizen em over understanding crucial clear of them was bracing prosecu his narcotic ruling made, to the to the record properly question tor’s only could allowed judge ruled makes that it obvious judgment in the sound understanding.82 More without judge the trial value of the answer solic over, ruling said, necessi we have outweighed possibility plainly ited prejudice probative tated val- accused.78 a careful balance of supra helpful. supra text 73. text notes 44-50. been See at See way trial That in which the is because supra text at notes 51-55. See judge on the Govern- handled request impeachment it neces- ment’s made supra 75. See text at notes 44-50. sary, purposes appeal, for us for of this supra text See at notes 62-65. give appellant to benefit of doubt. judge justified in was But the trial not supra text See at notes 66-72. acting assumptions ; responsibility, text at notes 66-73. ruling, to obtain the essential before merely was available information which 79. See Burns v. United 287 U.S. asking. for the 216, 222-223, L.Ed. Langnes (1932) ; Green, at notes 44-45. text (1931) ; 541, 51 L.Ed. 520 attempts make Government much (1972), Glenn, 154 U.S. judge never fact that while the App.D.C. information, sought missing to obtain the (dissenting opinion) ; Application offer it. We neither did defense counsel Frazzita, (Sup.Ct. N.Y.S.2d point ill-taken. think the Government’s Arens, 1955) ; Wooldridge 164 Or. had no reason to do battle Counsel P.2d prosecutor wit- unless the character actually have, considering ap- called, purposes and he 80. We for nesses to be were pellant’s assignment error, be- them twice voiced his wish talk to assumed judge presentation deciding of- that his fore what do. character-evidence purpose, fered a recess would have been as as could have counsel broad prejudice attempting no in- er cover in ue and and there was to discredit process testimony.86 Here, with no dication such here. infor testimony anticipated mation ap We mindful of fact that are from character witnesses the de pellant’s first his character witness fense, judge the trial that he announced good reputation testified for hon prosecutor would allow the to ask about good esty, peace order, simply appellant’s narcotic That was arrest. offenses, up of the time of the not exercise of informed an an discre may the time of trial. It that the be but, hold, tion we was error. judge, ruling un trial when he made the review, der traded on recollection that IV fact. But was an of the it evaluation Trial error does not situation, memory occasion reversal current and not a harmful, it unless and so a further old, the not which was called for but question ap- is whether an annulment of supplied Appellant’s here.84 pellant’s conviction might is warranted. With have evidence at second trial against appellant case Government’s materially differed from that adduced at strong, that, despite it first, erro- judge just and unless the knew handling neous of the matter of be, charac- what it would there no was sound here, ter-witness cross-examination af- measuring permissibility basis firmance of the is in conviction order. prosecutor’s question of the the nar on To this facet of the we now turn. case paraphrase Michelson,85 cotic arrest. To judge unless grasp has a how September about At 2:30 on a after- ground or, much has case, in this noon, Helvey Vernon E. and Ar- Ahmad been — by would have been —traversed of walking Safeway droudi 'were from fering good character, de he cannot they employed store at which were to a ground fine the which the cross-examin deposit. bank make an after-hours but nonetheless made liis immedi States, U.S.App.D.C. 19, 25, United ately. Fairly read; gives the record (footnote (1967) F.2d omit impression anticipate that counsel did not ted), (1967), see D.C.Code judge point; would rule at that contemplated “Luck . . . surely the need to do so had then present ar for the was defendant to the Compare Douglas, rived. United States v. trial court sufficient for withhold reasons (7th 1946). 155 F.2d Cir. And jury ing past convictions from the in the judge unequivocally after the ruled —with of a statute which such con [made] face apparent out in interest infor additional victions admissible.” Gordon United realistically mation —counsel could not States, U.S.App.D.C. 343, 346, F. expected to volunteer it. See Evalt v. (1967). 936, 939 See also Evans v. 2d States, (9th United 359 F.2d States, U.S.App.D.C. 114, 117, United 1966). Indeed, Cir. we are unable to (1968). Appellant distinguish us, factu situation before in this no such burden bore affirmative ally legally, from sought impeach The Government case. Wooden, supra U.S.App. technique which was available ment D.C. at 420 F.2d at 252. exception brought narrow within a States, 124 Cases like Walker v. United general judicial rule, see text U.S.App.D.C. 194, (1966), 363 F.2d 681 judge and made the arrest. robbers, closing fleeing in for a sued the by theses advanced the defense The During yards. time to a distance and mistaken identification were alibi disap- the the chase both of robbers now outline and what follows permanently peared sight, and from one by appellant. the to events testified gunman temporarily the other —the as — robbery noon on the date of the About alley. The he officers then ran into an get car, he home to his he left which stopping separated, Officer Pickeral George day on lent to Stokes before. alley the entrance to the Officer and by Informed that he had turned Stokes getting into a taxicab whose Croson to Nathan- the ear over Isaac Harris and point driver he out said could appellant Taylor, find iel set out to it. gunman.87 shortly thereafter, Very poolroom a he told the car At was parked rejoined, proceeded to a officers used in a “hustle”88 and that was to be alley, from the and car about a block hurry. He re- he retrieve it in a should peri- they appellant. The arrested there eventually trek arrived in sumed his and robbery elapsing to the ar- od from the spent vicinity robbery, of the and rest “a few minutes.” was playground. a Leav- fifteen minutes at testimony eyewitness- The the four ing playground, he met Harris and holdup consistently to described es Taylor inquired about car. and wearing gun as bandit with the dark They hurry appellant and were in told trousers, jacket, a hat a dark dark them, a time he to come which for with sunglasses. square-rimmed When ar- running them, along did: While trousers, rested, appellant wore dark tearing fell, tripped appellant out, with both knees torn and a white When, however, the knees. trousers sunglasses. shirt, hat nor but neither a gun, they he appellant saw that had Immediately after Officer them, upon came Rooks’ and later left retraced the route which the Croson by for directions to car. Asked Rooks flight apparently of the had tak- robbers appellant got Street, into the Fourteenth process the can- en and in recovered promptly arrested. car and was money bag Helvey, the vas taken from appel- to of the details A few sunglasses gunman, by the and hat worn by other lant were corroborated testified pistol. and a Appellant’s stated mother witnesses. wearing arrest, appellant, day left home that At the time of his that he had light by descriptions, nor sun- officers’ but neither a hat was shirt explained Appellant in- called a witness that a “hustle” The driver was not as activity illegal mean at trial. “could volves robbery money by getting or housebreak- way.” ing other glasses. breathing prior perspiring freely, heavily, confirmed the bor- Stokes rowing appellant’s ap- car and turn- crouched in the car its back of in an Taylor. parent attempt epi- de- over to Harris and Another to hide. entire holdup ap- appellant appellant’s fense had sode—from the witness recalled prehension poolroom, very been still another few —consumed appellant saw least as some- minutes. late as p. time and 2:00 m. between 1:30 strength towering of the Govern- Undeniably, the Government’s evi- sharp ment’s in case stood contrast with convincingly ap- pointed dence at trial relative feebleness of evidence pellant’s guilt. Appellant was identified Although for the in- defense. a few eye- gunman by each the four appellant’s story conclusive details was holdup. The two vic- witnesses witnesses, backed other remained gunman tims confronted the face-to-face aspects. uncorroborated in its most vital daylight half- broad for an estimated Although admittedly appellant and, eight-man lineup prior minute at an vicinity robbery at the time it appellant trial, picked as the each transpired, there was no to his witness gun. police of- bandit with the two activities within to 60 there- minutes gunman ficers the sidewalk saw were, moreover, unexplained of. There directly in front the restaurant oddities in version which through picture peered window hardly escape pro- could notice. He away. from their seats feet great hurry fessed to be in a locate appellant The in-trial identifications of paused period his car but he for a of 10 vigorous notwithstanding positive; were playground to 15 minutes at a while by of cross-examination the four defense way. Unquestionably the he coat- was counsel, in identifi- none was shaken although arrested, less when it had cation. heavily rained somewhat earlier on that Appellant was arrested within a few September Notwithstanding day.90 the holdup very a of short dis- minutes the already fact that he had left Har- Isaac during away, tance and after chase Taylor, ris and he still Nathaniel was gunman out the offi- was of which the running spotted full when Rooks him a briefly. in- only items cers’ view away. block gunman bag criminating of the —the question at hand is hat, sunglasses money, the the dark judge’s in the whether the error along gun been discarded the itself—had ruling appellant’s that character wit the chase had taken and the route which might nesses knowledge asked about their compact appel- in area the within fatally of narcotic arrest admittedly Appellant was had been. lant appellant’s tainted The an conviction. running by Rich- from the area seen depends upon swer “what effect the er car, stopped he in his ard sat Rooks reasonably ror had or be taken for directions Rooks asked when upon jury’s In have had the decision.”91 Street, appellant that stated Fourteenth dealing problem, “must that we with begged going ride. he there and was take account what the error meant of officers, police to some extent cor- Both them, singled alone, standing or not out Rooks,89 by testified that aft- roborated happen that relation to all else climbing spotted appellant they into er “[i]f, when all is car, him ed.” And said they in and found closed say just police Rooks, however, officers were still unable 90. Both of the was they gave gear position wearing appellant’s time of the rear rain what chase robbers. when the officers arrived. was ear clothing hanging in because the That was Kotteakos v. United view. the car blocked his rear of 90 L.Ed. 66 S.Ct. Id., at 1248. tion, hold that court had occasion to done, this that er conviction is sure dangerous weapon jury, is a or assault ror did not influence effect, slight armed very ver lesser included offense had but robbery,97 only that rob- judgment armed stand should dict and the ”93 bery both crime when survives of the convic . Reversal against person.98 are the same committed “if one cannot tion warranted assurance, say, ponder after with fair appellant’s It follows that conviction stripping ing happened without all That will count 3 must be vacated. whole, from the action erroneous not, turn, require remand re- substantially judgment that the was sentencing, Separate sentenc however. swayed by In the milieu the error.”94 imposed on of the five es were each devastating strength this ease—the express counts,99 were and all sentences and the serious Government’s case given ly operation. It suf concurrent feel that weaknesses in the defense—we then, fices, simply to vacate the sentence testimony would character on count 3.100 likely little no effect on the have had on count The conviction sentence sum, “fair as verdict.95 In we are with accordingly In other vacated. all are that the led to the conclusion surance” respects, the conviction and sentences “substantially testimony not have would are affirmed. then, hold, swayed” jury. We So ordered. judge’s the trial error does not warrant conviction. reversal FAHY, Judge, Senior Circuit concur- ring specially:

V aspect of this agree There is another case was in the trial I there error modify demanding scope attention —a need to permissible court’s as to the aspect in one conviction in order to the cross-examination by cure error another an sort. Of witnesses should be called appellant agree five counts on which was I error defense. also charged guilty,96 arm- found count 1 set forth harmless for reasons robbery Safeway em- unnecessary ed of one of the Judge It 'for Robinson. charged though ployees express beyond assault go this, count me I danger- upon Judge employee my appreciation same with a Robinson’s weapon. Subsequent ous opinion. the convic- scholarly possible exceptions Id. noted The Court text at notes 1-4. departure is from a constitu “where Johnson, U.S.App. 97. United States v. specific tional norm or a command (1973). D.C. 764-765, Congress.” Id. at (footnote Chap omitted). n. F.2d at 1298 And see Id. at California, man v. U.S. n. 2. (1967) ; L.Ed.2d 705 87 S.C. imprison- The sentences —all terms Harrington California, 395 U.S. years fifteen ment —were five to 23 D.Ed.2d years robbery, three ten for each armed year assaults, 94. Kotteakos for car- v. United of the two and one rying dangerous weapon. 66 S.Ct. at 1248. Benn, U.S.App. first are mindful We hardly jury disagreed, (1972), P.2d at 10 D.C. Accord, evi Wim shows absence of & n. 24. United States v. 236, 237-238, bush, dence made a critical difference at any points up, It as much as second. else, thing that even with character testi mony jurors trial, at the not all the first guilt. entertained a reasonable doubt as to notes and the authorized upon relies, do not which Government having vital to the information it without discretionary support position Walker its here. In the as whether determination cases, line of we held that no claim exception properly was to be allowed. impeach allowing error in an accused’s Compare States, 125 U. Brown United by prior ment asserted conviction could be 220, 221, 222, S.App.D.C. the ex where the clusionary never invoked accused 243, 244 upon the conferred discretion by text at note 38. judge Luck v. United 80, supra. 348 F.2d 763 That was because for crime “[c]onvictions Supra statutorily degree of rele some retain[ed] vance Luck to trustworthiness which automatically dispel,” [did] not Brooke containing bag knees Helvey floor the back car a canvas carried point he had enter. couple been seen to He $2,540. reached As by clothing restaurant, partially was concealed two directly in front hanging car, in the rear of and was approached from the rear men perspiring heavily. staged out of breath and holdup this liti- from which occupied by point- The ear gation Richard Rooks of the men One emanated. sister, and his visitors from York gun Helvey New demanded the ed way. money bag, Helvey who had lost their Rooks had handed it and when perceiving appel- stopped gunman the vehicle and fled. both bandits over to running street, lant on the side of the George officers, police Picker- W. Two over called him and asked for directions Croson, in- G. were seated al James Appellant replied to Fourteenth Street. time, and side the restaurant going that he was there and asked for a through picture both saw window lift, po- him so Rooks let come in. The as it unfolded. The officers the incident immediately lice officers arrived almost pur- restaurant dashed out

Case Details

Case Name: United States v. James A. Lewis

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 26, 1973

Citation: 482 F.2d 632

Docket Number: 24875

Court Abbreviation: D.C. Cir.