United States v. James L. Isaac , 449 F.2d 1040 ( 1971 )

LEVENTHAL, Circuit Judge:

Appellant and his codefendant were convicted of second degree burglary, 22 D.C.Code § 1801(b) (Supp. IV, 1971), and petit larceny, 22 D.C.Code § 2202 (1967). Appellant was sentenced to four to twelve years on the burglary count, and one year (to run concurrently) on petit larceny. His codefendant was sentenced to nine to twenty-seven months.

The only issue that merits consideration is the permissibility of impeachment of appellant through prior convictions.

The circumstances surrounding the arrest of the two men were as follows:

On a late Sunday afternoon in July, 1968, the police received a report that a two-story building housing a public accounting business had been broken into. A scout car was dispatched to the scene immediately. One of the officers, Officer Heath, walked to the rear of the building, where he observed a twelve-foot ladder leaning against the building next to a broken window. While he was there, appellant’s codefendant ran out the front of the building, carrying an adding machine which was later identified as the property of the operator of the accounting business. Sergeant Yatty, stationed at the front of the building, apprehended him. Meanwhile, Officer Heath saw a man stick his head out of the broken rear window. Though ordered to come down, the man disappeared back into the building. Very shortly thereafter, Sergeant Yatty noticed appellant standing just inside the front of the building. He ordered him out and placed him under arrest. The officers noticed scattered pedestrians near the front of the building at the time, but saw no one else.

Appellant was the sole witness in his own defense, which was based on a lack of intent to steal and a lack of association with his co-defendant. In explanation of his presence in the building, he claimed that he had gone in to chase out a group of neighborhood children who had entered the building and were being destructive. Though he had chased most of them out, one had broken free and returned. Appellant pursued this last one to the second floor; he admitted seeing Officer Heath from the rear window, but denied hearing an order to come down.

Appellant testified that he did not know Holly at all, and that he had told the police following his arrest that he did not know him. He also told the police at that time about his attempts to chase out a group of children.

At trial, defense counsel questioned the introduction of prior convictions in the event defendant took the stand. With respect to appellant, the trial judge ruled that he would permit impeachment by the use of two two-year-old offenses: attempted housebreaking and petit larceny. The judge said:

I think those type of crimes reflect on his trait of character, has to do with honesty, cheating or stealing or anything like that, those are the type crimes I think should be received in connection with his credibility as a witness. I will permit you to use those. (Tr. 60.)

Under cross-examination, appellant admitted the prior conviction for attempted housebreaking,¹ and the trial judge promptly cautioned the jury as to the proper weight that might be given such testimony.

Our decision in United States v. White, 138 U.S.App.D.C. 364, 427 F.2d 634 (1970) points out that while housebreaking is not “so directly related to the likelihood of false testimony as a conviction for, say, perjury or obtaining money under false pretenses,” a conviction for housebreaking is usable as impeachment where the housebreaking was to commit the crime of larceny (although not where it was, say, to commit a rape). Here the attempted housebreaking related to an intent to steal. See also, Bowles v. United States, 142 U.S.App.D.C. 26, n. 7, 439 F.2d 536, n. 7 (Nov. 20, 1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971).

Where the impeaching conviction is for the same (or substantially the same) crime as the felony now being charged a problem of strong prejudice arises. This court stated in Gordon v. United States, 127 U.S.App.D.C. 343, at 347, 383 F.2d 936, at 940 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L. Ed.2d 287 (1968):

“A special and even more difficult problem arises when the prior conviction is' for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that ‘if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” (footnote omitted)

Here there are multiple convictions. Under Gordon the trial judge was admonished to admit as impeachment a conviction for a non-similar crime. The difficulty is that both the convictions which the judge found usable for impeachment — attempted housebreaking and larceny — were crimes with which Isaac was now charged.

It may be assumed that both these convictions did not relate “directly” to veracity. Does this mean they were both inadmissible? If so, it means that the defendant would be impeachable if on trial only for housebreaking (through the larceny conviction), but could not be impeached here because on trial for two crimes.

This is a logically possible outcome but I think it goes too far. What the court laid down in Gordon was a general guide and a possible solution. And what Gordon says in the quotation above must be taken in conjunction with fn. 11 of Gordon where the court said that even in a case where the defendant’s testimony is important, so that it should be heard, it would have to engage in a weighing process in which the judge “may want to evaluate just how relevant to credibility the prior convictions are; for example, a recent perjury conviction would be difficult to ignore even where the defendant’s testimony would be of great importance. This could well be true as to a multiplicity of convictions for crimes of dishonesty referred to earlier.” (127 U.S.App.D.C. at 348 n. 11, 383 F.2d at 941 n. 11.)

What Gordon teaches is this: Where defendant’s testimony is needed he is not to be impeachable with a conviction for a similar crime if another conviction is available for impeachment. If the only conviction available for impeachment is the same crime, and it is not for a crime “directly” relevant to credibility, it should not be used if it is the only conviction of defendant that is not “remote.” But if there are two or more convictions for crimes of dishonesty that are not remote, then this provides a basis for impeachment — notwithstanding the possibility of prejudice that the jury will transfer from the impeachment to the same crime now being charged.²

The trial judge erred in allowing two impeachments of the same crime. Under Gordon he should not have allowed more than one. But since the prosecution only used one, no prejudice appears from this.

Affirmed.

1 . The Government chose not to question him about the petit larceny conviction.

2 . If the prosecution insists on such impeachment in a case and defendant stays silent, it may not be entitled to tiie instruction of inference from unexplained possession of stolen property. See Smith v. United States, 123 U.S.App.D.C. 259, 359 F.2d 243 (1966) cited in fn. 11 of (Jordon.