Johnson v. United States

356 A.2d 639

Opinions

KELLY, Associate Judge:

Appellant, Linwood E. Johnson, and two codefendants were convicted of the armed robbery¹ of a pastry deliveryman following a jury trial. On appeal, Johnson claims that the trial judge erred in failing, sua sponte, to immediately instruct the jury on the limited admissibility of a prior inconsistent statement used to impeach one of the codefendants who testified in his behalf. Finding plain error, we reverse the conviction and remand the case for a new trial.

Briefly, the government’s case consisted of evidence that two men robbed the deliveryman at gunpoint of a sum of money and two pies. An unidentified witness took down the license plate number of the vehicle in which the robbers left the scene and the car was stopped by the police shortly thereafter. A passenger in the backseat, codefendant Harry Allen, fled the scene but was chased and apprehended. Appellant, the driver, and a frontseat passenger were ordered from the car. A search of the car turned up a gray coat, worn by one of the robbers, and two pies. Money was found in the gray coat and on appellant’s person; a gun and a wallet were recovered near the place where the fleeing passenger was arrested. The deliveryman was unable to identify appellant as a participant in the robbery.

Following the denial of a motion for a judgment of acquittal, codefendant Harry Allen gave exculpatory testimony in appellant’s behalf. He stated that throughout the robbery and its immediate aftermath appellant had been incapacitated by the effect of narcotics withdrawal and oblivious to the fact that a robbery had occurred. He conceded his own direct involvement in the crime.

Allen was impeached by the testimony of the government’s rebuttal witness, Officer Bobby Collins, who testified that shortly after the arrest of appellant and his codefendants, Allen had made a statement to him denying his own active involvement and implicating appellant as a participant in the robbery. Neither counsel requested that the jury be immediately instructed on the limited purpose for which hearsay evidence of a prior inconsistent statement could be admitted² and no limiting instruction was given at that time.³

Generally, where a party fails to request an instruction on limited admissibility of evidence, the failure of the trial judge to give such an instruction, sua sponte, will not be considered on appeal. Dixon v. United States, D.C.App., 287 A.2d 89, 98, cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972). We have recognized, however, that the potential for jury confusion is so great where prior inconsistent statements are admitted for a limited purpose as to justify the requirement of an immediate cautionary instruction. Id. at 99.

In Lofty v. United States, D.C. App., 277 A.2d 99 (1971), a trial judge’s failure, sua sponte, to immediately instruct the jury on the limited admissibility of a prior inconsistent statement was held to be plain error requiring reversal. See Super. Ct., Cr.R. 52(b). We conclude that the rationale underlying that decision controls the result in this case.

The dissent would distinguish Lofty on the ground that there the government was impeaching its own witness, whereas in the instant case it impeached a defense witness. It is said that the impeachment of one’s own witness by prior inconsistent statement might convey the impression that additional substantive evidence is being offered, while impeachment of a hostile witness would not, and that, therefore, the requirement of an immediate instruction is justified only in the former instance.

This distinction was deemed irrelevant in Jones where the court explained that underlying the requirement of an immediate instruction was the policy of restricting the jury’s exposure to hearsay evidence. Jones v. United States, supra at 40, 385 F.2d at 300. See also United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974). Regardless of whose witness is being impeached, it is unrealistic to assume that jurors hearing testimony of a prior inconsistent statement would consider that statement as anything but substantive evidence unless they were instructed otherwise.⁴

The dissent contends further that our holding in Dixon v. United States, supra, bars our application of the plain error rule in this case. In Dixon we held that when a defendant is impeached by evidence of a prior conviction pursuant to D.C.Code 1973, § 14 — 305, the trial judge’s failure to give an immediate cautionary instruction, sua sponte, is not plain error. It was specifically recognized in Dixon, however, that a different situation is presented when, as in this case, a witness is impeached by evidence of a prior inconsistent statement. The court stated:

After careful consideration, we believe that the high probability of jury confusion in the “prior inconsistent statement” cases which required the exceptional use sua sponte of an immediate cautionary instruction by the trial court is not present in the case of “prior convictions” evidence used for impeachment. .

[Id. at 99.]

It is urged finally that Super.Ct.Cr.R. 30 precludes us from regarding the omission of an unrequested instruction as plain error within the meaning of Super.Ct.Cr. R. 52(b).⁵ This very argument was made and rejected in United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971), where in a discussion of 'both rules, the court stated:

[T]he failure of defense counsel to request such an instruction does not automatically bar this court from reaching the error if the instruction is not given. [Id. at 217, 440 F.2d at 245.]

Reversed.

1 . D.C.Code 1973, §§ 22-2901, 22-3202. A threshold question of this court’s jurisdiction, raised because of an apparent premature notice of appeal under our decision in West v. United States, D.C.App., 346 A.2d 504 (1975), has been eliminated by the filing of a supplemental transcript of the sentencing proceedings.

2 . As hearsay, Allen’s prior inconsistent statement could not properly have been considered for the truth it stated. Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967). It could have been considered as proving simply that the statement had been made since the mere fact that a witness has made contradictory statements is relevant to an evaluation of credibility. Id. at 40, 385 F.2d at 300.

3 . In his final charge to the jury, the trial judge included a general instruction on the limited admissibility of prior inconsistent statements which did not, however, specifically refer to the testimony in question. While an accused may, of course, waive the right to a cautionary instruction, the record here does not reveal any evidence of affirmative waiver. See Jones v. United States, supra at 39, 385 F.2d at 299.

4 .It is apparent from the verdict of guilty that the jury chose to disbelieve Allen’s exculpatory testimony and it is probable that in making this choice the jury credited his prior inconsistent statement as substantive evidence of what had transpired, particularly since the prosecutor, in his closing argument, emphasized the prior inconsistent statement in a way which indicated that it could be so viewed. (Supplemental Record II, Tr. 27, 51-3.) Considered as substantive evidence, Allen’s prior inconsistent statement effee-' tively controverted appellant’s sole defense of nonparticipation in the crime.

5 . Rule 30 states in pertinent part:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the-jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . . .

As noted in the dissent, the Supreme Court has not specifically endorsed the application of the plain error rule to instructional errors that have not been preserved for appeal in accord with Rule 30. But see Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), where following a statement that the petitioner’s failure to request a jury instruction precluded review of this issue under Rule 30, the Court stated:

Nor was there on this score any such plain error in the charge, affecting substantial rights, as would warrant reversal despite the failure to object. See Fed.Rules Crim. Proc., 52(b). . . . {Id. at 436, 83 S.Ct. at 1386.]