Martin v. United States , 127 F.2d 865 ( 1942 )

VINSON, Associate Justice.

Appellant, a policeman, was convicted and sentenced to one year for simple assault. His codefendant, also an officer, was acquitted. The Government introduced evidence showing that one Sockwell was beaten up shortly before or about 11:00 p.m. on Labor Day, 1940. Several witnesses identified appellant and the codefendant as the assailants. One witness said that the officers pulled a call box immediately following the assault.

Appellant testified concerning the incidents of his patrol between 10:00 and 11:00 p.m. (the time between two pulls of the same call box). He created the general impression that he had a more or less ordinary run of the beat. He put himself at the place of the assault at the critical time; nonetheless he maintained that he did not assault Sockwell, and that to the best of his knowledge he had never seen him before.

The Government, on cross-examination, asked appellant a series of questions as to whether he had any “difficulties” (five in number) with other named people at several specific places around certain times within or near the hour testified to on direct. Appellant objected to this line of questioning. After discussion, and with doubt, the trial court permitted the cross-examination. Appellant denied having any “difficulty” each time asked.

Then the Government called witnesses who proceeded to refute two of appellant’s denials. Again appellant objected, and again, after discussion, the trial court, with some hesitation, allowed the “rebuttal.” The witnesses then testified in detail concerning one unprovoked assault committed by appellant and one or two other officers, and testified concerning another assault by appellant. Each assault was stated to have occurred at a time subsequent to the one charged in the indictment.

Appellant’s broad argument is that such cross-examination and rebuttal tended to show that he had committed other assaults; thus the jury might very well have found him guilty on the assault charged because of the cumulative effect of the stated misconduct, whereas if the offense for which he was indicted were kept isolated, he might not have been found guilty beyond a reasonable doubt. Hence appellant relies upon the well known general proposition that evidence of other offenses is not admissible. The force and importance of this basic proposition is not now questioned.

To this basic proposition there are, naturally, exceptions, such as evidence tending to show intent, motive, scheme, or identity. At this trial when the court was in serious doubt as to admissibility, the Government was asked to state its ground. The Government in response argued that the cross-examination and the rebuttal were proper as affecting the credibility of appellant’s account, i.e., impeachment through specific contradiction. The Government was using appellant’s testimony as to his whereabouts from 10:60 to 11:00 p.m. as the entering wedge for this line of impeachment.

The Government ventured too far afield. Its cross-examination and rebuttal did not contradict appellant’s direct testimony, but dragged in further events of the evening. There was contradiction between the answers to the cross-examination and the rebuttal evidence, but the Government brought out far more graphic details than were necessary to refute appellant’s answers of “no difficulty,” providing impeachment were the sole purpose.

We need not pass upon the admissibility of the rebuttal evidence under the impeachment theory, however, because the Government now concedes, apparently under the collateral rule, that appellant’s denials could not be refuted under this theory. The Government now contends that the rebuttal was proper as tending to prove identity, since appellant on the stand said that he did not assault Sockwell.

Inasmuch as the rationale of the Government’s procedure at the trial was so tenuous, and inasmuch as the final object is now abandoned, it would seem logical to conclude that the case must be reversed unless the evidence is clearly proper and entirely harmless, or, at any rate, involved no serious danger of undue prejudice.

The case as presented here shows that the cross-examination was without proper object and was harmful. At the trial, appellant’s story on direct examination concerning his whereabouts from 10:00 to 11:00 p.m., the cross-examination, and the rebuttal, may have seemed to be tied together. This “tie-up” was attempted under the then existing theory of admissibility: to show lack of credibility through specific contradiction. Under the present theory of identification, the rebuttal evidence is supposed to refute what appellant said on direct (that he did not assault Sockwell), and has no relation to the questions on cross-examination. Such a result is not to be unexpected when rationales are altered. It now appears that the rebuttal should have been presented, if at all, in chief. It now appears that the cross-examination had no proper object, and did create harmful inferences. In our view, the record reveals that the inference is not that the “difficulties” happened to come to appellant, but rather that he was the instigator. And that of course becomes all too clear when the rebuttal evidence shows that the prosecutor was talking about assaults all the way along.

In respect of the rebuttal testimony, we point out that, although there is a rule of evidence dealing with multiple admissibility, in criminal cases when the evidence has a limited purpose the jury is, as a rule, carefully instructed so that they will know the precise issues upon which the evidence can be considered. Such care will avoid confusion and will prevent as much as is possible the evidence going to the general question of guilt. The record does not show any charge or instruction concerning the use of the rebuttal evidence upon, or only upon, the question of identity. It is probable there was none, since that was not the purpose for which the evidence was offered.

If the purpose of the rebuttal evidence was identification, then there is not as much reason to limit the assaults (as the Government under the impeachment theory tried to do, but did not fully succeed in doing) to those within the time covered by appellant’s account. Since the logic is: this man committed many assaults so he must have been the assailant in the instant case, the more assaults shown, the better. The Government had at least five in mind and, according to oral argument, possibly ten or eleven; it should have developed all of them to increase the probability. But the Government was not presenting its case that way. The harm that would be done to appellant under such a presentation, especially when done under the guise of rebuttal evidence, is manifest. It would seldom be justified, particularly where, as here, the prosecution had ample evidence of identity, and appellant did not rely upon an alibi.

Thus, if the Government at the trial had said that the rebuttal evidence would be for the purpose of identification, the trial court might very well have excluded it. The trial court might have taken this view because it regarded the evidence as of low probative value on identification, or because the Government already had in strong positive evidence on this issue, or because, if that was its purpose, it should have come in with the Government’s case in chief rather than having a tactical advantage just before the jury started its deliberations.

Other theories of admissibility have been argued. Identification was the one stressed. The others carry less persuasion.

For some reason appellant was convicted and his codefendant was acquitted. Two or three “explanations” of the jury’s action occur to us. It is beyond our province, however, to second guess the jury. It is sufficient to point out that the reason could have been that there was evidence that appellant had committed other assaults, and his codefendant was not tied up with them.

In résumé: the impeachment basis of admitting the evidence in the trial court was tenuous; that basis is abandoned; the new identification basis is highly questionable; the trial court never had an opportunity to rule upon admissibility under the new basis; likewise, there was no opportunity to give proper limiting instruction; the evidence may have seriously damaged appellant. Appellant, then, is entitled to a reversal.

Appellant also alleged as error the failure to declare a mistrial when different witnesses made hearsay statements carrying the inference that appellant committed other offenses on Labor Day evening. If an admonition to the jury will negative the harm done, the harm was corrected in this case, for the trial judge did the best that could be done. In view of the fact that the case is to be reversed anyway, it is unnecessary for us to consider whether the impression of the hearsay might have remained, and, with other factors, could have prevented the defendant from having a fair trial.

We regard as commendable the District Attorney’s attempt to keep the Police Department in good repute. A policeman, as other defendants, should be tried, however, upon one offense at a time. If evidence, which unfortunately reveals other misconduct, must be used for limited purposes, whichever limited purpose is employed must be employed with some consistency and with some reason other than its effectiveness in obtaining a conviction. In this type of case where the evidence in question tends to show other unconnected, unprovoked assaults, and where one theory and then another is rushed to defend its admissibility, it is a little taxing to be told that the course pursued may have been wrong or may not have been exemplary, but that there is no prejudicial error.

Reversed.