420 F.2d 1313 | D.C. Cir. | 1969
Lead Opinion
On August 20 or 21, 1967, an apartment was burglarized, and a saxophone and other items were purloined.
Indicted in counts of housebreaking
As is evident, the Government’s theory that appellant had broken into the apartment and filched the saxophone was based wholly upon an inference from its possession by appellant shortly after it was stolen. Appellant offered no witnesses in his own behalf and, for reasons hereinafter elucidated, did not take the witness stand himself. The prosecuting attorney argued to the jury that it should, and the trial court charged the jury that it might, infer appellant’s guilt of either or both of the offenses charged from unexplained possession of the saxophone so closely on the heels of its theft from the apartment.® The jury convicted on both counts, and the court sentenced appellant to imprisonment for a maximum term of 12 years.
The principal argument on appeal, and the only contention meriting discussion,
At the close of the Government’s case in chief, defense counsel
In Gordon,
Even more importantly, we have recognized, from early in the Luck era, that “where inferences founded upon unexplained acts are likely to be heavily operative, the court’s discretion to let the jury hear the accused’s story, unaccompanied by a recital of his past misdeeds, may play an important part in the achievement of justice.”
The Government argues, however, that appellant should not benefit from an application of Luck principles because appellant’s trial counsel made no representation as to what appellant’s testimony would be, or as to the unavailability of other witnesses to establish his defense. We have said many times that it is for defense counsel to invoke Lwcfc,
When, after the Government rested in this ease, appellant’s attorney requested the Luck ruling, it was manifest that the Government had hung its entire effort on the inference permitted by an unexplained possession of recently stolen property. It was equally clear that the Government in its endeavor to win the verdict, was forced to ask for an appropriate instruction on that score. In that setting, appellant’s proposed testimony, if it was to be helpful at all, had to be directed toward an explanation of his possession of the
We hold that the circumstances here emphatically enough called upon the trial judge to strike the balance that Luck demands and, in the process, “to make sufficient inquiry to inform himself on the relevant considerations.”
Accordingly, we remand this case for a Gordon-ty^e hearing
. The exact time of the housebreaking and theft — a matter of some importance here, see Travers v. United States, 118 U.S. App.D.C. 276, 280, 335 F.2d 698, 702 (1964) — is uncertain. The occupants of the apartment were out of the city and, by prior arrangement, a friend checked the apartment periodically. “ [E] verything was fine” on the August 20 cheek, but the check on the next day disclosed that the apartment had been broken into and articles stolen therefrom.
. In the meanwhile, the theft of the saxophone had been reported, and the police had requested notification in the event that the man who had pawned it returned.
. D.C.Code § 22-1801 (1967 ed.), since amended (Supp. II 1969).
. D.C.Code § 22-2201 (1967 ed.).
. This witness concluded that appellant had also made a similar signature on one of Terry’s identification cards which had been removed from appellant’s person after arrest.
. See, e. g., Pendergrast v. United States, 135 U.S.App.D.C. 20, at 30, 31, 416 F.2d 776, at 786-87 cert. denied 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969).
. Appellant presents two additional claims. One relates to the court’s instructions to the jury on the inference permitted from appellant’s unexplained possession of the recently stolen saxophone, but the several points appellant seeks to make are foreclosed by our decision in Pendergrast v. United States, supra note 6. The instruction did not meet all of the standards we recently laid down in Pendergrast, but there was no objection to it and we do not' consider its shortcomings such plain error as to justify reversal. See Fed.R. Crim.P. 30; Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).
Appellant’s remaining contention focuses on two references by the prosecuting attorney to “fingerprint” evidence; handwriting, but no fingerprint, evidence was introduced at the trial. The references were obviously inadvertent and in our view too innocuous to mislead the jury or to otherwise affect substantial rights. See Fed.R.Crim.P. 52(a).
. 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
. Id. at 156, 348 F.2d at 768.
. See Weaver v. United States, 133 U.S. App.D.C. 66, 71-72, 408 F.2d 1269, 1274-1275 (1969).
. Not his counsel on appeal.
. Gordon v. United States, 127 U.S.App. D.C. 343, 383 F.2d 936 (1967), cert. denied 390 U.S. 1029, 88 S.Ct. 1421, 20 L. Ed.2d 287 (1968).
. Possession of a prohibited -weapon. Appellant’s record also revealed charges of destroying private property and attempted housebreaking of which he was found not guilty.
. Immediately after the Luck ruling, the trial judge directed appellant’s counsel to make his opening statement, the privilege of making which he had earlier reserved. Defense counsel then informed the jury that “it is our contention that the defendant did not pawn the saxophone nor did he enter the house and take it out.” The court then took a recess, and when it reconvened defense counsel stated that he rested. It seems obvious that during the recess appellant made the decision that he would not undertake to testify under the conditions the judge’s Luck ruling made possible.
. Gordon v. United States, supra note 12.
. 127 U.S.App.D.O. at 347, 383 F.2d at 940.
. Id.
. Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 157, 348 F.2d at 769.
. 127 U.S.App.D.O. at 347, 383 F.2d at 940.
. Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 156-157, 348 F.2d at 768-769.
. Smith v. United States, 123 U.S.App. D.C. 259, 261, 359 F.2d 243, 245 (1966). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 348 n. 11, 383 F.2d at 941 n. 11; Suggs v. United States, 129 U.S.App.D.C. 133, 138-139, 391 F.2d 971, 976-977 (1968). Compare Barber v. United States, 129 U.S.App. D.C. 193, 195, 392 F.2d 517, 519 (1968).
. Smith v. United States, supra note 21, 123 U.S.App.D.C. at 261, 359 F.2d at 245; Walker v. United States, 124 U.S. App.D.C. 194, 195, 363 F.2d 681, 682 (1966) ; Covington v. United States, 125 U.S.App.D.C. 224, 225, 370 F.2d 246, 247 (1966) ; Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) ; Harley v. United States, 126 U.S.App.D.C. 287, 288, 377 F.2d 172, 173 (1967) ; Lewis v. United States, 127 U.S. App.D.C. 115, 381 F.2d 894 (1967) ; Suggs v. United States, supra note 21, 129 U.S.App.D.C. at 138-139, 391 F.2d at 976-977. See also Trimble v. United States, 125 U.S.App.D.C. 173, 174-175, 369 F.2d 950, 951-952 (1966).
. Although there was a Luck request at trial, we held that the judge’s discretion was insufficiently invoked in Hood v. United States, 125 U.S.App.D.C. 16, 17-18, 365 F.2d 949, 950-951 (1966) ; Evans v. United States, 130 U.S.App.D.C. 114, 117-119, 397 F.2d 675, 678-680 (1968) ; Smith v. United States, 132 U.S.App.D.C. 131, 132, 406 F.2d 667, 668 (1968). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 345, 383 F.2d at 938; Jones v. United States, 131 U.S. App.D.C. 212 at 216, 404 F.2d 212 at 216 (Oct. 17, 1968) (concurring opinion).
. See Hood v. United States, supra note 23, 125 U.S.App.D.C. at 18, 365 F.2d at 951; Payne v. United States, 129 U.S. App.D.C. 215, 216, 392 F.2d 820, 821 (1968) ; Evans v. United States, supra note 23, 397 F.2d at 678-679.
. It is not, however, clear here that “the District Judge afforded defense counsel abundant opportunity to present his contentions concerning the Luck issue.” Evans v. United States, supra note 23, 397 F.2d at 679. Rather, following appellant’s bare Luck request, the judge promptly made his ruling without any sort of inquiry beyond the criminal record and immediately thereafter called upon defense counsel for his opening statement. See note 14, supra.
. Lewis v. United States, supra note 22; Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 346-347, 383 F.2d at 939-940; Suggs v. United States, supra note 21, 129 U.S.App.D.C. at 138, 391 F.2d at 976; Jones v. United States, 131 U.S.App.D.C. 88, 92, 402 F.2d 639, 643 (1968). See also Stevens v. United States, supra note 22, 125 U.S.App.D.C. at 240, 370 F.2d at 486 (dissenting opinion) ; Williams v. United States, 129 U. S.App.D.C. 332, 339, 394 F.2d 957, 964, cert. denied 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968) (concurring opinion) ; Evans v. United States, supra note 23, 397 F.2d at 681, 683 (dissenting opinion).
. Compare Jones v. United States, supra note 26, 402 F.2d at 643.
. Id.
. The two employees of the pawnshop identified appellant as the party who brought the stolen saxophone in for the pawn, although one may not initially have been fully certain. The Government’s handwriting expert was firm in his opinion that appellant had signed the pawn receipt in the name of Wilson Terry, and had similarly signed one of Terry’s identification cards. The jury could also have taken into consideration appellant’s deception through the use of Terry’s name when the pawn was made. Yet the only circumstances indicating that appellant was the party who broke into the apartment and stole the saxophone was his possession of the saxophone in the pawnshop. If in truth appellant acquired possession of the instrument by some other means, the verdict should have been different.
. Since a vital link in the Government’s evidentiary chain rested wholly on inference — an inference that appellant might have explained away had he been permitted to testify — we, unlike our dissenting colleague, are unable to say that the error foreclosing his testimony was nonprejudicial.
. See Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 348, 383 F.2d at 941.
. Compare Luck v. United States, supra note 8, 121 U.S.App.D.C. at 157, 348 F.2d at 769.
. See Kotteakos v. United States, 328 U. S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
Dissenting Opinion
(dissenting):
Today two members of this court reach a new height in their creation of near-mythical “rights” of criminal defendants which requires that their convictions be vacated. One Samuel R. Pillow, a resident of the District of Columbia, left the city for a period of nine days. During that time his apartment was burglarized and he lost $700 worth of personal property including a saxophone valued at $175. Subsequently, Mr. Pillow alerted the police department of his loss. The police located the saxophone in a pawn shop in the northwest section of Washington. It was pawned by a person who signed “Wilson Terry” on the pawn ticket
On these facts the majority reverses appellant’s conviction and remands for a Luck
Since appellant refused to take the stand, appellant’s defense was presented to the jury by his counsel in his opening statement:
[I] t is our contention that the defendant did not pawn the saxophone nor . did he enter the house and take it out (Tr. 88).
It is my opinion that the evidence of appellant’s guilt is so overwhelming that whether he took the stand or whether his past convictions were introduced are factors which have a de minimis effect upon the conviction which he now seeks to vacate. After reading thoroughly the majority’s exercise in judicial time-wasting, one must wonder exactly what appellant’s defense will be on the remand. Given this new opportunity, however, perhaps he will be able to explain: (1) if he did not enter the apartment, how he came into possession of the saxophone, and (2) if he did not pawn the saxophone, why he had the other half of the pawn ticket in his possession and why his handwriting matched that on the pawn ticket. The majority might do well to answer these questions for the members of the public who are not well versed in all the technical nuances of the criminal law and who wonder why our
Our court dockets are crowded and this court has repeatedly emphasized the necessity and desirability of speedy trials for all defendants. Yet, with this in mind and for reasons more philosophical than legal, the majority' remands this case to the already busy district judge with directions to hold a hearing at which appellant can proffer his “alibi.” I must dissent from this further impediment to the achievement of justice in this case despite my acknowledgment of the submissive fatalism with which bench and bar calmly accept the inevitability of endless delay in the termination of criminal prosecutions. I feel it is essential that appellate courts develop an eye for the forest of reality as a necessary substitute for the prevailing sense of the trees of abstract theory. Since my reading of the record discloses insurmountable evidence of appellant’s guilt and no “error * * * affect[ing] substantial rights”
. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
. Gordon v. United States, 127 U.S.App. D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L. Ed.2d 287 (1968).
. Majority opinion at 1317.
. This court has held many times, as the majority must recognize, that the defense counsel must invoke Luck in a meaningful way. Indeed, we stated not long ago that “[i]f Luck made anything clear, it was that the defense is ill-advised to content itself simply with citing Luck.” Hood v. United States, 125 U.S.App.D.C. 16, 18, 365 F.2d 949, 951 (1966). See Jones v. United States, 131 U.S.App.D.C. 216, 404 F.2d 212 (1968) ; Smith v. United States, 132 U.S.App.D.C. 131, 406 F. 2d 667 (1968).
. )red.R.Criin.P. 52(a).