United States v. Wendell McIntosh

426 F.2d 1231, 138 U.S. App. D.C. 237, 1970 U.S. App. LEXIS 10357

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 11, 1970
• Docket: 22538
• Status: Published

Opinions

MacKINNON, Circuit Judge:

Appellant was convicted of mail theft of a cardboard box at the Union Station. Evidence at his trial showed that Post Office personnel saw him leaving a mail area near the passenger gates at Union Station carrying a mailed cardboard box. When a postal supervisor asked him about the box he was carrying, appellant said that it was his, but later when it became apparent from examination that it was not, the appellant claimed that he had had a parcel of the same size and shape but that he must have picked up the wrong parcel. At trial appellant also claimed that he had a similar cardboard box that he had set down at the Union Station; but such box was never produced nor was there any corroborative evidence that such box ever existed. Appellant’s attempted explanation as to his reason for being at the station revolved around the claim that he was there to meet friends he expected to arrive on an incoming train. These “friends” were never otherwise identified or produced.

Before trial there was a motion to suppress hearing after which the trial judge conducted a Luck¹ type hearing at which it was brought out that appellant had been convicted of larceny after trust in 1955 and three violations of the Harrison Narcotics Act in 1961. Because of the natural objections to these convictions (remoteness and propensity to crime), the trial judge then considered conducting a hearing to determine whether the appellant had led a legally blameless life since 1955 but appellant’s' counsel refused this offer saying, “I can’t say that.” The judge then said:

“I don’t believe in weighing down the record with evidence of prior criminal convictions because that too much leads a jury to the possible conclusion that the man has a propensity for crime rather than simply having the opportunity of considering it in connection with their evaluation of his credibility. I will permit you to introduce or to question him about one of these convictions. Now, which one would you prefer to use, the recent one in the narcotics area? Or larceny after trust?”

The prosecution chose and used the narcotics conviction because it was the most recent conviction.

At trial there was no objection to use of the prior conviction but now on appeal appellant argues that a Harrison Narcotics Act conviction is a hideous crime which does not bear directly on credibility and, therefore, it was reversible error for the court to allow the Government to use it for impeachment purposes in a case where he is the only defense witness. We disagree.

This court has held that narcotics convictions do bear weight on the issue of credibility.² Consequently, in a Luck situation, if the judge determines that one of a number of a defendant’s prior convictions is to be introduced for impeachment purposes, it is not error per se to allow impeachment by a narcotics conviction pursuant to D.C.Code § 14-305 (1967).³ We disagree with the appellant’s contention that a narcotics conviction is such a hideous crime that its introduction at trial automatically becomes so prejudicial that a defendant is thereby denied his right to a fair trial. Indeed, one might argue that a narcotics conviction is not near so damaging in a mail theft trial as a larceny after trust conviction would be. This may very well have been the reason the defense did not object at trial. In any event it would not be in the interest of justice to allow one with prior convictions to assume the role of pure integrity on the stand simply because he is his only witness or because his prior crimes were serious crimes. We should not forget in our reading of Luck that D.C. Code § 14-305 does specifically authorize the use of a prior conviction to affect one's credibility as a witness.

The trial judge did err when he allowed the prosecution to select the conviction he was going to use. The question of which conviction to allow for impeachment purposes is under Luck, supra, a matter for the trial judge’s discretion and a failure to exercise that discretion constitutes an abuse thereof. A reading of the record as a whole however indicates that the trial judge weighed the relevant factors (i. e., remoteness, relative bearing on credibility, propensity to crime, etc.) and decided that the two forms of convictions weighed equally. Nevertheless, it was error for the trial judge not to make the decision himself but we do not find that this error constitutes reversible error in this instance. “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(a). In this case, the use of a more recent narcotics conviction, as opposed to the more remote larceny after trust conviction that carried the inference of propensity to commit the charged crime, did not affect any substantial rights of the appellant.

The appellant also argues that the prosecutor, in his closing statement to the jury, and the trial judge, in his instructions to the jury, made reference to the narcotics conviction and that these references inflamed the jury to the prejudice of the defendant. We do not agree. The prosecutor’s interrogation, his argument to the jury and the court’s instruction on the prior conviction were carefully stated so that it was quite clear that the jury was to consider the prior offense solely on the issue of the credibility of the witness.⁴

Appellant’s brief also takes exception to the prosecutor’s statement that narcotics addicts are notorious liars. Suffice it to say that this statement was not made within the hearing of the jury, and the reference thereto did not reflect the opinion of the prosecutor. He was merely calling the court’s attention out of the hearing of the jury to an argument made in Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748 (1964), that dealt with addicts.

Affirmed.

1 . Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

2 . Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967); Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 (1968). Brooke was a narcotics case and hence the court’s decision permitting use of a prior narcotics conviction for impeachment purposes, over the objection that it would prejudice the defendant by showing a propensity for the particular crime with which he was charged, must be viewed as a strong holding by this court that narcotics convictions go to credibility.

3 . “A person is not incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime. The fact of conviction may be given in evidence to affect his credibility as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him is not bound by his answers as to such matters. To prove the conviction of crime the certificate, under seal, of the clerk of the court wherein proceedings containing the conviction were had, stating the fact of the. conviction and for what cause, is sufficient.” D.C.Code § 14-305.

4 . The prosecutor interrogated the witness as follows:

“Q Hr. McIntosh, weren’t you convicted on May 25, 1961, of a Harrison Narcotics Act violation?

“A I have, sir.”

The prosecutor argued to the jury:

“I might mention something, I asked him if he had been convicted of a narcotics violation in 1961. There is only one reason I asked him that. It has a bearing on his credibility. It is not to be considered by you as to whether or not he is guilty of this offense. That comes from the evidence the Government permitted — the Court has permitted the Government to introduce. That narcotic conviction only had to do [with] whether or not he is telling the truth, and that is all. I am sure the Court will instruct you that which you are to consider.”

The court charged the jury as follows:

“The defendant’s prior criminal record is admitted into evidence solely for your consideration in evaluating the credibility of the defendant as a witness. It is not evidence of the defendant’s guilt of the offense with which he is on trial. You must not draw any inference of guilt against the defendant from his prior conviction. You may consider it only in connection with your evaluation of the credence to be given his testimony in this case.”