Roland Belton v. United States

259 F.2d 811, 104 U.S. App. D.C. 81, 1958 U.S. App. LEXIS 4789

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 15, 1958
• Docket: 13690_1
• Status: Published

Opinions

FAHY, Circuit Judge,

announces the judgment of the court and delivers the following opinion in which EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges, join.

In August 1949 one Lewis Crowder met his death as a result of knife wounds inflicted by appellant. The grand jury indicted appellant for second degree murder, indicating their conclusion that the homicide was not accompanied by premeditation and malice aforethought, essential elements of first degree murder.¹ The trial did not take place until September 1954, appellant having left the jurisdiction upon learning of Crowder’s death and not having been returned until March 1954. Appellant was found guilty as charged and the ease is before us as a result of proceedings subsequently set forth in this opinion.

The prosecution called but one eye witness, Wallace Brown. He supported appellant’s claim of self defense. He said he saw Crowder, who was a much taller and heavier man, slapping and kicking appellant, who “was trying to defend himself and fight off from him.” He saw a small penknife in appellant’s hand but did not see him cut Crowder. The prosecution claimed surprise and sought to impeach its witness by the use of a written statement represented to have been made by Brown in August 1949. A conference with the court ensued at the bench. The court considered and rejected the claim of surprise. It appeared to the court that the prosecuting attorney had recently interviewed Brown and knew he would not adhere to the statement, whatever it was. The effect of this ruling was to prevent the prosecution from attacking the testimony of the witness it had itself called as one worthy of belief.

Though section 14-104, D.C.Code (1951),² allows an exception to the general rule that one cannot impeach his own witnesses by the use of previously made contradictory statements,³ to come within that exception actual surprise must be found. Young v. United States, 94 U.S.App.D.C. 62, 69, 214 F.2d 232, 238.⁴

The prosecution did not abide by the court’s ruling that it could not impeach its own witness. Over repeated defense objections, repeatedly sustained by the court, the prosecution sought by questioning Brown to convince the jury that he had given a statement in August 1949 that was inconsistent with his sworn testimony at the trial. The following questions asked Brown illustrate the tactics used:

“Doesn’t it say in the statement you saw him cut the man ?

[Objection sustained.]

“You say you didn’t make that statement to the police?

[Objection sustained.]

“Read the statement and see whether you made it.

[Objection sustained.]

“Didn’t you say, when you told me what happened—

[Objection sustained.]

“Did you tell me that the next day when you saw Belton he showed you a knife? A. Showed me a knife?

“Didn’t I read that statement to you?

[Objection sustained.]”

At one point when the court sustained the objection, saying the prosecutor was attempting to impeach his own witness the prosecutor said, apparently also in the hearing of the jury:

“No. He is trying to say an entirely different story, say something different, and I think I can show in the interview what happened.”

The prosecutor also referred to a conversation he had had with the witness on the previous day, and, still over objection, which was sustained, stated in the hearing of the jury,

“I think I am entitled to show his conversation in this case by the witness, that I should be entitled to show if he said something that is not true.”

Again,

“Well, now, you remember, as I say — you don’t deny signing this statement, do you?

[Objection sustained.]”

None of these references to a prior statement which was not in evidence— none of these prejudicial implications of the prosecutor himself — was permissible. This improper conduct was renewed in his summation when the prosecutor said to the jury that if appellant had stood trial in August 1949 “the Government would have sufficient evidence to convict him * * In characterizing the prosecutor’s conduct as improper we do not assess his motives. We use the adjective to describe the effect of his conduct upon the fairness of the trial.

Appellant took the stand. He testified that while he was asleep in a yard the deceased woke him and asked him to walk outside which he did. The deceased then asked him if he had made a particular statement about the deceased going with a certain married woman. Appellant denied having done so. He testified that then the deceased “grabbed me by my collar, called me a damn liar and said I did, and he started beating me, and he kept beating me. I could not run. I could not get away from him.” He continued to describe the fight, said he was being kicked, managed to get out his knife, he did not know how, but deceased kept kicking him in the lower part of the stomach and on the leg and beating him and he started fighting back. He did not know how long it was before Brown came up.

There were a number of knife wounds on decedent, the most serious of which appears to have been a cut in the throat.

In view of the evidence which was properly before the jury it is impossible to avoid the conclusion that the conduct of the prosecution might have affected the verdict of the jury, on the issue of self-defense or the degree of homicide, by leading them to believe that evidence against appellant of a damaging character existed which the court would not permit the jury to hear. This grew out of tactics which violated the rulings of the court and appellant’s right to a trial on the evidence given under oath from the witness stand rather than given in effect by the prosecutor from counsel table.

The United States contends, however, that the conviction, thus impaired, must stand because no appeal from the judgment is properly before us.

We think the appeal is here for us to decide. The verdict of the jury was rendered September 10, 1954. Judgment thereon was entered October 1, 1954. In the meantime, on September 14, 1954, there was filed in the office of the Clerk of the District Court a letter from appellant requesting inter alia, that he be granted the privilege of “receiving an appeal as I am without funds to pay the cost of court * * This was an adequate and timely notice of appeal. Rule 37(a) (2) F.R.Crim.P., 18 U.S.C.; Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865; Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41; accord, Shannon v. United States, 93 U.S.App.D.C. 4, 206 F.2d 479; and see Kirksey v. United States, 94 U.S.App.D.C. 393, 395, note 2, 219 F.2d 499, 500, note 2. This court thus obtained jurisdiction to review the judgment of conviction. The fact that the notice of appeal was received by the clerk after the verdict and before entry of judgment thereon is an irregularity which does not affect substantial rights and should be disregarded. Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3.

Rule 39(c) F.R.Crim.P. requires, however, that after the appeal is taken the record shall be filed and the proceedings docketed in this court within forty days from the date the notice of appeal is filed in the District Court. The record was not filed and the proceedings were not docketed within forty days from the notice of appeal of September 14, 1954.⁵ But this did not oust the jurisdiction which had become vested in this court. Rule 45(b) (2) explicitly provides that for cause shown we may upon motion permit an appeal to be perfected after the expiration of the time specified in Rule 39(c), if the failure to do so within that time was the result of excusable neglect.⁶ The neglect was excusable. The District Court treated appellant’s letter of September 14, 1954, as a request for leave to appeal in forma pauperis and denied it as such. This we have no doubt indicated to appellant, an illiterate pauper then in confinement, that his request for an appeal had been denied. See Boykin v. Huff, supra. It is only now that we decide that this letter constituted a notice which vested jurisdiction of the appeal in this court. This decision comes about at this late date in the following circumstances: In August 1955 appellant began to file a series of motions in the District Court under 28 U.S.C. § 2255 (1952), collaterally attacking the judgment of conviction. This led finally to our allowance of an appeal from the denial by the District Court of the § 2255 motion he had filed July 10, 1956. In connection with that appeal we appointed counsel to represent appellant. This in turn led to the disclosure that by reason of the letter to the Clerk of the District Court of September 14, 1954, we were possessed of jurisdiction of an appeal from the original judgment of conviction itself, though the appeal had not been perfected in a timely manner. Since we only now reach this decision that we have jurisdiction of the direct appeal we think it is not permissible for us to hold that uncounseled and imprisoned appellant should have known in the fall of 1954 what we only now decide, and, in addition, should have known that the rules required him to perfect within forty days from September 14, 1954, an appeal which we cannot say he even knew he had. After he was sentenced October 1, 1954, appellant was without counsel until this court appointed counsel for him November 20, 1956. See Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355.

Aside from the question of excusable neglect on the part of appellant in perfecting the appeal within the usual time we have reached the merits of the appeal upon another and independent ground. Rule 39(a), set forth in the margin,⁷ places under our “supervision and control” the “proceedings on appeal.” Within this supervisory authority this court has held that we have the power to consider an appeal on a record filed out of time, once we have obtained jurisdiction by the filing of a notice of appeal within time, as was here done. The late Chief Judge Stephens stated the applicable principles in a case where the court rejected the claim that the delay was due to excusable neglect within the meaning of Rule 45(b) (2):

“[I]n a criminal case in which a sentence of imprisonment is involved, there is a public interest against denial of consideration on appeal of substantial questions as to the lawfulness of the conviction. For if the conviction is erroneous it is abhorrent to justice that a defendant shall nevertheless suffer such a penalty for the crime charged. The Supreme Court has on this account vested the United States Court of Appeals with discretion to consider and determine questions on appeal notwithstanding failure of counsel to make due compliance with the usual procedural requirements. This discretion may be exercised either on application of a party or by the court sua sponte.”

Christoffel v. United States, 88 U.S.App.D.C. 1, 6, 190 F.2d 585, 590.

Chief Judge Stephens quoted the Supreme Court’s reference in Forte v. United States, 1937, 302 U.S. 220, 223-224, 58 S.Ct. 180, 182, 82 L.Ed. 209,⁸ to the “full responsibility” of the Court of Appeals “for the exercise of a reasonable control over all the proceedings relating to the appeal,” and said that the court lost none of its power to determine what the interests of justice required “by reason of the fact that the question [of conformity to the rules] was not brought to its attention until the court had heard argument and reached a decision upon the assumption” that procedural requirements had been met.

Thus it is clear that once this court has jurisdiction of an appeal the procedural Rules, though designed for the expeditious and orderly progression of a case, contain within themselves provisions which prevent imprisonment of the court within rigid time schedules that would defeat the interests of justice. And of course the fact that appellant has long been in confinement cannot be ground for denying relief under the principles set forth in Christoffel. On the contrary. While remembering that the administration of criminal justice by appellate as well as other courts must be within the law which includes those rules of procedure that are binding, we must also not forget that, subject to these limitations, it is never too late to rectify serious error. Were illustration necessary it was furnished recently by Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. There a motion for a new trial was filed some 12 years after a plea of guilty had been accepted by a state court. Seven years later, or 19 years after the plea had been accepted, the case was decided by the Supreme Court. The Court held that the plea of guilty had been invalidly accepted and accordingly reversed the denial of the motion for a new trial. The basic question was whether the accused had waived his right to counsel.

In view of our disposition of the case we do not reach the questions raised on the appeal from denial of the § 2255 motion filed July 10, 1956. That appeal must now be dismissed as moot.

Reversed and remanded.

1 . Except in certain situations under 31 Stat. 1321 (1901), as amended, § 22-2401, D.C. Code (1951), not here pertinent.

2 . Section 14^104, 32 Stat. 540 (1902) reads as follows: “Whenever the court shall be satisfied that the party producing a witness has been taken by surprise by the testimony of such witness, such party may, in the discretion of the court, be allowed to prove, for the purpose only of affecting the credibility of the witness, that the witness has made to such party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause * * *

See Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19; Smith v. United States, 57 App.D.C. 71, 17 F.2d 223.

3 . 3 Wharton, Criminal Evidence § 948 (12th ed. 1955):

After presenting a witness to the jury as worthy of belief, a party cannot attack the witness and ask the jury to disbelieve his testimony if it is unfavorable. To that extent, ,a party is bound by the answer of his own witness, and the general rule obtains in criminal cases that a party cannot impeach his own witness, even though the party thus precluded is the government.

And see, Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170. Compare 3 Wigmore, Evidence §§ 896-905 (3d ed. 1940).

4 . See 3 Wharton, op. cit. supra § 953; Un-derhill, Criminal Evidence § 421 (4th ed. 1935). For an excellent discussion of the federal law on the overall point of impeaching one’s own witness in a situation of surprise see United States v. Michener, 3 Cir., 152 F.2d 880.

5 . The record was filed January 23, 1957, and supplemented June 25, 1957.

6 . No formal motion was filed under Rule 45 (b)(2) but appellant in brief and oral argument requested that we consider the appeal on the merits notwithstanding lateness under the Rule in filing the record and docketing the appeal in this court. This is suflicient. See Jordan v. United States District Court, 98 U.S.App.D.C. 160, 163, note 3, 233 F.2d 362, 365, note 3, reversed on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114.

7 . F.R.Crim.P. 39(a):

“(a) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. * * * ’>

Of course the same supervision resides here when wo have obtained jurisdiction of an appeal and the record is on filo with our cleric, .as in the present case.

8 . Decided under Rule IV of the earlier Rules of Practice and Procedure in Criminal Cases promulgated by the Supreme Court May 7, 1934, 292 U.S. 661. Rule IV, said by Chief Judge Stephens, 88 U.S.App.D.C. at page 7, note 7, 190 F.2d at page 591, note 7, to parallel, so far as pertinent to Christoffel, present Rule 39(a), reads in part:

“From the time of the filing with its clerk of the duplicate notice of appeal, the appellate court shall, subject to these rules, have supervision and control of the proceedings on the appeal, including the proceedings relating to the preparation of the record on appeal.”