United States v. Joseph Coleman

re- complained of judgment versed, ease is remanded and the proceedings further for Court District opinion. with this

not inconsistent

Reversed. America STATES of

UNITED COLEMAN, Appellant.

Joseph

No. 22316. Appeals

United States Court Circuit. Columbia

Argued Feb. July 11, Decided Wirtzman, Miss Paula R. with whom Gelband, Washington, Stephen L.

Mr. C., court) (both appointed by D. was brief, appellant. on the Bennett, Mr. Robert S. Asst. U. S. Atty., with whom G. Messrs. David Bress, Atty., the brief S. at the time filed, Q. Nebeker, was Asst. and Frank Atty., U. S. at the time brief filed, brief, appellee. were on the Judge, BAZELON, Before Chief Judges. ROBINSON, TAMM and Circuit III, ROBINSON, SPOTTSWOOD W. Judge: Circuit August On 20 or burglarized, ment was and a Tamm, Judge, dissented. Circuit purloined.1 and other items were On August 21, identifying a man himself as Terry pawned Wilson signing pawn- “Wilson on the evidencing copy of the broker’s páwnbroker’s appraiser transaction. The spotted appellant pawnshop believing following and, September 18 brought him to be the man who had housebreaking by prior arrangement, The exact time friend checked “ here, importance periodically. verything apartment theft —a matter [E] cheek, August see Travers fine” App.D.C. 276, 280, day the check on next disclosed occupants apartment uncertain. into and been broken —is city apartment were out of the stolen therefrom. articles in, saxophone charged promptly stolen the jury might, trial court called the that it police.2 appellant’s guilt infer After conversations with of either or both manager charged pawnshop, lant unexplained and the of the offenses from identification, closely made a similar of the so police placed appellant apart- on officers the heels of from its theft person produced jury arrest. ment.® A search The convicted on both copy counts, appellant a of the ticket for the saxo- and the court sentenced phone bearing imprisonment identification cards for maximum term of Terry.” years. name “Wilson F. housebreaking3 counts of Indicted in argument principal The grand larceny,4 appellant stood trial peal, only meriting and the contention jury. District Court before a discussion,7 misapplied is that Terry real Wilson F. testified he had that our appel Luck8 doctrine in cards, lost the identification and denied request immunity for testimonial signing the “Wilson impeachment by from use of criminal expert expressed ticket. A convictions which he had accumulated. opinion appellant had made judges We held in Luck signature,5 employees the two of the 6and discretion to limit or ban pawnshop reiterated their identifications type of that cause where “the of truth appellant pawned party who had helped by letting jury more saxophone. story by hear than defendant’s evident, theory As the Government’s is foregoing opportunity defendant be had broken into prejudice of the fear cause founded ment and based filched prior Appellant’s conviction.” wholly posses- inference from its challenge scrutiny thus our commands by shortly sion it was after ascertaining the record with a view Appellant stolen. offered no witnesses teachings whether of Luck and its his own herein- behalf reasons progeny10 were honored in this case. elucidated, did not take the witness attorney prosecuting stand himself. At the close of the Government’s argued jury should, chief, case in counsel11 meanwhile, 2. In the saxo- theft of the struction did not meet all of the standards phone reported, police recently had Pendergrast, been and the we laid down in requested objection had notification event to it and we do pawned shortcomings plain that the man who it returned. not' consider its justify error as to reversal. See Fed.R. (1967 ed.), since D.C.Code 22-1801 § 30; Singer Crim.P. 1969). (Supp. II amended (1967 ed.). § D.C.Code Appellant’s remaining contention focuses 5. This concluded that witness prosecuting on two references at- signature a similar on one had also made torney “fingerprint” evidence; hand- Terry’s cards which had identification writing, fingerprint, but no evidence was person from been removed introduced at the trial. The references after arrest. obviously were inadvertent and in our See, g., Pendergrast e. too view mislead the innocuous to rights. to otherwise affect substantial cert. denied at 786-87 395 U.S. 52(a). Fed.R.Crim.P. 23 L.Ed.2d S.Ct. U.S.App.D.C. 8. 121 Appellant presents claims. two additional One relates to court’s instructions permitted 9. Id. at from at 768. on the inference unexplained possession of the 10. See Weaver v. United recently several stolen but the App.D.C. 66, 71-72, 1274- points appellant fore- seeks to make are Pendergrast v. closed decision in appeal. in- note 6. The 11. Not his counsel on signed role in this case. One such con and informed proached the bench remoteness, point put sideration like “would that he time, conviction;18 of a can have another we on the stand defendant similarity to the offense for which Luck decision. the benefit accused is on trial.19 in is not Still another is the words, I interested am importance, truth, the search for of spread having before record giving the triers of fact of inquiry of benefit jury.” further Without testimony.20 citing accused’s Here sort, judge, Gordon12 our the trial housebreaking larceny “[ajnything and conviction that has holding, stated that 1959; came in stealing when occurred cheating others is admis- do to with Moreover, we know not. two con sible,” proceeded examine once to at judge Going victions would have let were appellant’s down record. criminal larceny, for offenses, one of the with offenses past he excluded of the list charged. not And appellant one,13 Government ruled withstanding judge’s housebreaking elimination of could use conviction convictions, of larceny we discern larceny, con- an additional weigh prejudicial effort effect of viction, of false and three convictions remaining those pretenses. judge then The concluded testify testimonial contribution as inquiry, appellant elected not expected could have been to make. observed, case went we have jury evidence Government’s importantly, Even more we have alone.14 recognized, early Luck era, from Gordon,15 a rule “where held that "as inferences we founded un- 16 evidencing explained likely heavily of dis acts are thumb” convictions to be operative, go to testimonial credi court’s discretion honest conduct to let the involving bility story, or hear the those assaultive accused’s while unaccom- panied by not,17 past misdeeds, the trial recital of his violent conduct do may play Gordon important part made that here. distinction justice.”21 emphasized achievement of considerations In the also case bar, highly adjudication appellant’s affair, im at of relevant to an version convictions, previ- peachment by prior unembarrassed mention but we of his very they law, ous difficulties find were as with could no indication States, U.S.App. States, supra 15. Gordon v. United note 12. 12. v. United Gordon (1967), 343, cert. de D.C. U.S.App.D.O. 347, 16. at F.2d at 1421, 1029, 20 L. nied 940. Ed.2d 287 17. Id. Ap- -weapon. prohibited 13. of Possession charges record also revealed 18. Id. See also Luck v. United attempted private property destroying 157, U.S.App.D.C. note at housebreaking which he was found F.2d at 769. guilty. U.S.App.D.O. 19. ruling, Immediately after counsel directed Id. See also Luck v. United su statement, privilege make his pra 156-157, making which he had earlier reserved. 348 F.2d at 768-769. informed the Defense counsel then U.S.App. the defend- Smith that “it is contention nor did D.C. 359 F.2d ant did not take it out.” See also Gordon he enter the house and recess, when it re- at 348 n. then took a 11; Suggs he at 941 n. stated that 383 F.2d convened defense counsel during 138-139, It seems obvious that rested. that he made the decision recess U.S.App. testify Barber not undertake to D.C. conditions possible. case, they be made cannot otherwise The success have been crucial. well time, At the entirely upon known to the same court.24 depended prosecution that, once the we have admonished strength from inference of an shortcomings raised, counsel’s issue is the stolen mitigate the need do not who stole was the housebreaker that he 25 judicial discretion.26 possession was an exercise the fact Unless it. nothing Certainly satisfactorily commend a explained refuted —and requirement possibly counsel deline only appellant that defense ostensibly could apparent “likely already plainly to be ate that which is fact was do either —that against him. all concerned.27 -heavily operative” however, When, argues, rested the Government Government ease, attorney requested from an not benefit should ruling, the Luck it was manifest that principles because plication Luck of hung representa Government had its entire effort made counsel trial testimony permitted by unexplain- the inference an as to tion possession unavailability recently property. ed stolen be, to or as equally It was defense. clear that the Government establish to witnesses other verdict, it endeavor to win many is times have said We Lwcfc,22 appropriate forced to ask for an instruc- to invoke counsel defense this, way,23 setting, tion on meaningful score. In that invoke it initially proposed testimony, course, if it was will necessitate to be helpful all, theory testimonial at explanation had to be directed toward usually explanation where, as of his defense details 21, States, supra App.D.C. 215, 216, 820, note 392 United F.2d 821 Smith v. (1968) ; 261, supra U.S.App.D.C. States, at F.2d 359 Evans v. at United 123 States, 23, U.S. 245; 124 note 397 F.2d United at 678-679. Walker v. 681, 195, 194, 682 App.D.C. F.2d 363 not, however, 25. It here clear that “the States, Covington ; 125 (1966) United v. Judge afforded defense counsel 246, 225, U.S.App.D.C. 224, F.2d 370 opportunity present abundant his con- States, (1966) ; v. United Stevens 247 concerning tentions Ev- issue.” 239, U.S.App.D.C. 485 F.2d 370 125 supra States, 23, ans v. United note 397 States, Harley (1966) ; 126 v. United Rather, following appellant’s F.2d at 679. 172, 288, 287, U.S.App.D.C. 173 F.2d 377 request, judge promptly bare Luck States, ; (1967) U.S. 127 Lewis v. United any without sort of in- ; (1967) 115, App.D.C. F.2d 894 381 beyond quiry im- the criminal record and 21, 129 supra States, Suggs note v. United mediately thereafter called 138-139, U.S.App.D.C. F.2d at 391 at counsel for his See statement. United also Trimble v. See 976-977. 14, supra. note 174-175, U.S.App.D.C. 173, States, 125 22; States, supra 26. Lewis 950, v. United note 951-952 369 F.2d States, supra 12, Gordon v. United note request Although at was a Luck there U.S.App.D.C. 346-347, 127 at 383 F.2d trial, discretion we held that 939-940; Suggs States, at v. United su insufficiently v. in Hood invoked pra 21, U.S.App.D.C. 138, note at 16, U.S.App.D.C. States, 17- United 976; States, 391 F.2d at Jones v. United (1966) ; 949, 18, Evans 950-951 U.S.App.D.C. 88, 92, 639, 402 F.2d 114, States, U.S.App.D.C. See also Stevens v. United ; 675, 117-119, 22, U.S.App.D.C. note States, 132 Smith v. United 240, (dissenting opin at 370 F.2d at 486 667, See 406 F.2d ; ion) States, Williams v. United supra States, note also Gordon S.App.D.C. 964, 957, 394 F.2d 345, F.2d at at cert. denied 393 U.S. 938; Jones United v. (1968) (concurring opin App.D.C. 212 at 216 404 F.2d ion) ; supra Evans v. United note opinion). 17, 1968) (concurring (Oct. (dissenting 397 F.2d at opinion). supra Hood Jones v. United Payne 951; 402 F.2d at 643. knowledge precise as turn necessitates a denial of toward to what would have said from how explanation as possession and an and, Indeed, in somewhat the witness stand pawn ticket. to have the he came degree, availability monologue smaller contained which in the same issue, who could said the witnesses have dispositoin thing. same counsel: to defense trial said He didn’t do your defense? Accordingly, “What is we remand case for a go have didn’t in there Gordon-ty^e hearing31 and didn’t these say.” And we you can any is all points may it. That other relevant judge also realize, trial investigated.32 as we think judge, Unless frequently done, all too considering have circumstances, should other than innocent no witnesses alike, say old and new can fair “with - testify can themselves assurance” the verdict not sub- “was stantially matters. swayed error,” the Luck was, appellant must be awarded here circumstances hold that We a new trial.33 enough emphatically called So ordered. balance strike process, “to make demands TAMM, Judge, Circuit (dissenting): inquiry inform himself sufficient We considerations.”28 relevant Today of this reach two members by ap- mean, not that all height near- creation of a new in their necessarily past was record “rights” mythical of criminal defendants out, explora- ruled but that a suitable requires that their convictions be discretionary exercise a sound tion and Pillow, R. a resi- vacated. One Samuel requisite. since, But in some became Columbia, dent of the left the though certainly respects, in not During city period days. nine for a strong,29 we are case was Government’s burglarized apartment time his was say prepared omis- that the not personal prop- lost he worth $700 appellant do a new sion to so entitles erty including saxophone a valued at Any disposition of this trial. sound Subsequently, Mr. Pillow alerted $175. litigation inquiry as to must follow police department of his loss. The proper of Luck what result a exercise police saxophone pawn located the in a produced, and discretion would have shop in the northwest section of Wash- ington. result by whether failure to achieve that pawned person It was a who signed prejudiced appellant.30 probe, pawn in “Wilson Such a ticket means, the verdict should have been dif- Id. ferent. pawnshop employees of 29. The two party appellant as who Since vital link Government’s identified evidentiary saxophone wholly brought rested infer- in for the chain the stolen appellant may initially might although pawn, have ence —an inference that not one explained away fully permit- had he have been Government’s been certain. opin- testify we, dissenting expert ted to firm in unlike was his — say signed colleague, appellant pawn are unable to er- had ion that testimony foreclosing nonprej- Terry, receipt ror his Wilson was in the name of Terry’s similarly signed udicial. identi- one had could also cards. The fication 31. See Gordon v. United de- into taken consideration Terry’s through ception name use of only pawn Yet was made. when the Luck v. United indicating appellant circumstances party broke into the who was the F.2d at 769. saxophone his was stole the ment and saxophone pawn- 33. See Kotteakos pos- appellant acquired shop. in If truth S. 90 L.Ed. 1557 session the instrument appellant produced requisite identifi- clear that the this case ever rule, who requested meaningfully police then he cation cards. The invoked since notify proffered absolutely them no defense when attendants in the store queried by immediately pawned judge.4 the trial if the individual who I believe ponder- saxophone court need Less than one not reach returned. any problem ous month later the attendant called consideration store police person since even if not con- them that did notified hearing again completely proper pawned who duct was clearly prejudicial police error not un- the store. The at the store arrived 52(a) Chap- placed appellant der both Fed.R.Crim.P. under arrest. When man. to this was searched incident police person arrest the discovered his Since to take the refused bearing pawn the other half of the stand, appellant’s presented defense was trial, Terry.” the name At “Wilson to the counsel in his his Terry he lost Wilson testified that statement: previous- the various identification cards ly t is our [I] contention that defend- signed mentioned not and that he had pawn ant did nor ticket. Both attendants at did he enter the positively house and out store take identified . (Tr. 88). person pawned saxophone. addition, handwriting expert testi- my opinion It is that the evidence opinion fied that it pellant’s guilt overwhelming is so signature signature matched the of whether he took the stand whether Terry Appel- Wilson ticket. past convictions are were introduced lant did not take the stand and offered factors which de have a minimis effect neither nor witnesses evidence be- upon the conviction which he seeks now say, half. Needless to convicted reading thoroughly to vacate. After charged. appellant as majority’s judicial exercise in time- wasting, exactly one must wonder majority reverses On these facts the appellant’s defense will be on the remand. remands conviction and opportunity, however, Given this new hearing to determine Luck1-Gordon2 perhaps explain: (1) he will be able “substantially whether the verdict was apartment, he did not enter how swayed by It the Luck is clear error.” possession he came into of the against from the record that the evidence (2) pawn if he did the saxo- overwhelming and that phone, why he had the other half of the surely Luck error must why in Chap classified as “harmless” matched that on the California, man 824, v. U.S. majority might ticket. The do well accord, (1967); questions to answer these for the mem- Harrington California, 395 v. public bers who are not (1969). well versed S.Ct. 23 L.Ed.2d in my reading all Under thority relevant au technical of the nuances area, why it is-not at criminal law and who wonder meaning- v. counsel must Luck in invoke way. Indeed, long ago 348 F.2d 763 ful we stated not anything clear, “[i]f it U.S.App. Gordon is ill-advised to con- (1967), cert. de D.C. simply citing tent itself with Luck.” nied, L. S.Ct. Hood v. United Ed.2d 287 Jones v. United Majority opinion at 1317. ; Smith Unit- many times, U.S.App.D.C. 131, as the held ed This has F. majority recognize, 2d must the defense backlogs and have such courts delays.

Our court dockets are crowded and repeatedly emphasized the

court has

necessity desirability speedy trials Yet,

for all defendants. with this philosophical

mind more reasons legal, majority'

than remands this already busy

case to the district hearing

with which directions to hold a proffer can his “alibi.” I must impediment

dissent from this further justice achievement this case my despite acknowledgment of the sub-

missive fatalism with bench calmly inevitability accept

bar of end- delay

less in the termination of criminal

prosecutions. feel I essential

appellate develop eye for courts reality necessary

forest aas substitute prevailing

for the sense of the trees of reading theory. my

abstract Since

record discloses insurmountable evidence * * * guilt no “error rights”5

affect[ing] substantial

pellant, I would affirm conviction.

UNITED STATES of America BARBOUR, Appellant.

Harold W.

No. 22335. Appeals

United States Court of

District of Columbia Circuit. 25, 1969.

Argued April

Decided Oct. )red.R.Criin.P. 52(a).

Case Details

Case Name: United States v. Joseph Coleman

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

Date Published: Jul 11, 1969

Citation: 420 F.2d 1313

Docket Number: 22316_1

Court Abbreviation: D.C. Cir.