John A. White v. United States , 349 F.2d 965 ( 1965 )

BAZELON, Chief Judge:

In this petition for rehearing, appellant urges that our opinion of September 17, 1964 shows that we have misread the record in affirming his conviction for first degree murder. That opinion assumed, without deciding, that appellant’s statement to the police after arrest was inadmissible in the Government’s case in chief. But we held that statement admissible on Government rebuttal to impeach appellant’s self-defense claim for the reasons that (1) appellant “made the first reference to his statement” in his testimony, and (2) “defense counsel did not object to the prosecutor’s subsequent use of that statement * *

Appellant now asserts, and we agree, that these reasons do not survive a closer reading of the record. The statement was first mentioned in the presence of the jury during the prosecutor’s cross-examination of appellant, in the following colloquy:

Q. I asked you, Mr. Defendant, that as soon as you had settled down enough after this excitement of the police officers coming in with their drawn guns that you could think, you told the police then all about this, that you told us.

A. I didn’t tell the police anything right then.

Q. I didn’t say right there.

I said you told this to the police, didn’t you, about his coming at you with his hand in his pocket.

A. I don’t know whether I told the police that or what I told the police at the time. I made a statement at headquarters, if that is what you mean.

Q. Fine. I am glad you mentioned that.

The prosecutor then asked, “In that statement to the police at headquarters, which you have just mentioned, did you tell them about this man advancing on you with his hand in his pocket?” Appellant answered that he did not remember. At the prosecutor’s request, the court instructed appellant to read the statement to himself to refresh his memory. The question was then repeated, and appellant answered, “I don’t see it in the statement.”

Our previous opinion found that appellant’s testimony, “I made a statement at headquarters, if that is what you mean” justified the prosecutor’s introduction of the statement to counter the “likely inference — an erroneous one— * * * [that the statement] did contain a complete account of his version of the shooting.” But it is evident from the record that the prosecutor purposely elicited from appellant this reference to his statement, since the trial court had earlier ruled, over defense counsel’s objections, that the statement could be used for impeachment.

Another incident in appellant’s testimony is now urged by our dissenting brother as grounds for affirmance. Appellant testified on direct examination that, at his arrest, “I asked the officer could I explain to them what happened. They made me sit down in the chair and told me not to say anything.” The dissent construes this testimony as an attempt by appellant “to leave with the jury the inference that he would have given the police a contemporaneous version of what had happened if they had let him do so” and the further inference that such statement would have supported his self-defense claim. In some circumstances, otherwise inadmissible evidence may be used to contradict a defendant’s “affirmative resort to perjurious testimony.” Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). But Walder does not authorize the use of inadmissible evidence to contradict such remote inferences as our dissenting brother finds here. Moreover, the Government did impeach this inference through the testimony of two arresting officers that appellant had spoken freely when arrested and had made no claim of self defense. Thus, unlike Walder, the inadmissibility of appellant’s statement did not ‘‘provide him [self] with a shield against contradiction of his untruths” and he could not rely “on the Government’s disability to challenge his credibility” on this point. Ibid.

The fact that appellant’s statement might impeach his defense more effectively than the police testimony is no justification for admitting it. A defendant “must be free to deny all the elements of the ease against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.”¹ Inadmissible “evidence is not rendered admissible merely because the defendant testifies in his own behalf.”² Appellant made no “ ‘sweeping claims’³ going far beyond the crime charged” nor was the impeaching use of the statement restricted “to ‘lawful proper acts’ which are purely ‘collateral matters’⁴ to the issues at bar.” Rather, the use of the statement here “bore on the central issue” of the case.⁵ Appellant admitted the shooting, but claimed he acted in self-defense. The Government used appellant’s statement directly to contradict his only defense.⁶ “To permit the Government to introduce illegally obtained statements which bear directly on a defendant’s guilt or innocence in the name of ‘impeachment’ would seriously jeopardize the important substantive policies and functions underlying the established exclusionary rules.” ⁷ We vacate our previous affirmance and remand the record for determination of the circumstances in which appellant’s statement was obtained by the police. If that determination reveals that the statement was inadmissible for the Government’s case in chief, the conviction is reversed for a new trial.

So ordered.

1 . Walder v. United States, supra, 347 U.S. at 65, 74 S.Ct. at 356.

2 . Johnson & Stewart v. United States, 120 U.S.App.D.C.-, 344 F.2d 163, at p. 165, decided Oct. 15, 1964.

3 . Walder v. United States, supra, 347 U.S. at 65, 74 S.Ct. 354.

4 . Tate v. United States, 109 U.S.App.D.C. 13, 16-17, 283 F.2d 367, 380-381 (1960).

5 . Bailey v. United States, 117 U.S.App. D.C. 241, 245 n. 3, 328 F.2d 542, 546 n. 3, cert. denied, 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964) (dissenting opinion of Judge Wright, approved in Johnson & Stewart v. United States, supra note 2, 344 F.2d at p. 165.)

6 . The dissent asserts, without specification, that the statement was admitted only “under carefully limited conditions.” The sole “limitation” we perceive is that appellant’s full statement was not read to the jury. But appellant’s testimony, in response to the prosecutor’s questioning, that his statement did not mention self-defense was as damaging as if the statement had been admitted in evidence.

7 . Johnson & Stewart v. United States supra note 2, 344 F.2d at p. 166.