United States v. Allen S. Bussey , 432 F.2d 1330 ( 1970 )

BAZELON, Chief Judge:

Appellant challenges his convictions ¹ for robbing the Edison Sewing Machine Company at 2626 Bladensburg Road, N.E., at 4:20 p. m. on February 23,1968; he contends that the jury should not have been permitted to hear evidence which indicated that he had also robbed the General Transmission Company, 2912 Bladensburg Road, N.E., at 4 o’clock that afternoon. Bussey did not take the stand himself, but his girlfriend testified that he was with her at her house in Southeast Washington from 12:30 p. m. to 8:30 p. m., except for the period from approximately 3:20 to 3:50, when he went out to buy a sandwich and some medicine. The Government attempted to discredit this alibi evidence by presenting, over defense objections, two witnesses to the General Transmission holdup, who testified to the details of the robbery and identified Bussey as one of the perpetrators. At this time, a newspaper article recounting the two robberies was also read to the jury.² This newspaper clipping had been identified during the Government’s case-in-chief as having been found on Bussey when he was arrested on February 26, 1968.

I.

Prior to trial, the prosecution moved to consolidate the trials for the two robberies, under F.R. Crim.P. 8. Bussey opposed this motion, arguing that prejudice would arise from the jury’s tendency to cumulate the evidence from the various offenses and to infer a criminal disposition on Bussey’s part. He also pointed to the “less tangible, but perhaps equally persuasive, element of prejudice * * * in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one.” Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964). Accordingly, the District Court denied the Government’s motion to consolidate.

As we observed in Drew, “[t]he same dangers appear to exist” when evidence of one crime is admitted at trial for another offense as “when two crimes are joined for trial.” ³ Yet in the present case the evidence which had been excluded by one district judge’s refusal to permit joinder was allowed in by another judge at appellant’s trial. Furthermore, admitting this evidence runs up against the “general rule * * * that, upon the trial of an accused person, evidence of another offense, wholly independent of the one charged, is inadmissible.” Bracey v. United States, 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944).⁴ The Government contends, however, that the evidence was properly admitted under exceptions to that rule, because it proved “identity” and because the two crimes were “so nearly identical in method as to earmark them as the handiwork of the accused.” ⁵

As we have recently recognized in a related area, the trial court in exercising its discretion over the admission of evidence must “weigh the probative value of the convictions * * * against the degree of prejudice which the revelation of * * * past crimes would cause.”⁶ The large “potential for prejudice” which we detected in the admission of evidence of prior convictions is exceeded in inflammatory impact by the “other crimes” evidence of the sort involved here. In the Luck-Gordon situation, the jurors are asked to doubt a defendant’s veracity on the basis of the simple documentary record of a prior conviction for which he has already “paid his debt to society,” while in the present situation, they were presented with the full details of a criminal act for which the defendant had not yet been convicted or punished.⁷ The temptation to punish him for both crimes was undoubtedly very great. Accord-' ingly, we must decide whether the probative value of the evidence in question was sufficient to outweigh the likelihood that it would cause the jury to draw the “improper inference” that appellant had a “disposition to commit crime.”⁸

II.

A. The testimony of the General Transmission witnesses did not evince a particular pattern to the two robberies which would mark them as distinctly the “handiwork” of the same men. The facts common to the two robberies⁹ do not distinguish them from any number which have come before this court recently, and for which persons other than appellant have been convicted.¹⁰ The conduct of the robbers was certainly not “so unusual and distinctive as to be like a signature.”¹¹ Nor was this evidence probative of “identity” as that concept has traditionally been employed. The fact that the witnesses identified appellant as a participant in the General Transmission holdup fell short of showing “former conduct of his, known to be the conduct of the perpetrator” ¹² of the Edison robbery.¹³

This evidence did, however, place Bussey at the General Transmission Company at a time when his alibi witness said he was home with her. As such, it was admissible as rebuttal to her testimony. Bracey v. United States, supra,. But the direct examination of the General Transmission witnesses was not “presented with scrupulous care to avoid any intimation to the jury that appellan[t] had engaged in another robbery minutes before the one in issue.” Hood v. United States, 125 U.S.App.D.C. 16, 18, 365 F.2d 949, 951 (1966). Rather than limiting the witnesses to testimony rebutting the alibi, the prosecutor invited them to “tell us [the court and jury] the details” of the General Transmission holdup.¹⁴ The admission of this evidence was error; its probative value on the relevant point was insufficient to outweigh its inflammatory effect on the jury. While the other evidence of appellant’s guilt is strong, it cannot be said “that the error did not influence the jury.”¹⁵ The jurors might have substantially disbelieved the Edison witnesses and still have returned their guilty verdict on the basis of the General Transmission witnesses’ testimony. Consequently, we conclude that allowing this testimony into evidence was prejudicial error.¹⁶

Moreover, no instruction was given at the time this testimony was admitted, to caution the jurors on the limited purpose for which it was being received, and it blinks reality to think that on the basis of the instruction given as part of the charge-in-chief¹⁷ the jury was capable of the “mental gymnastic”¹⁸ of disregarding this evidence in “any respect” except as to the one purpose permitted by the trial court. The “hazard” that the jury will ignore even “concededly clear” limiting instructions leaves the situation “the same as if there had been no instruction at all.” Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968).¹⁹ Thus the prejudice to appellant in the admission of evidence of the other alleged offense was not cured.

It is unfortunate that this prejudice occurred, for it was unnecessary; the prosecution had a strong ease without the evidence of the other holdup, and the rebuttal testimony itself could easily have been kept within proper bounds. Had defense counsel attempted on cross-examination to cast doubt on the witnesses’ recollection that Bussey was in the auto shop at 4 o’clock, an opportunity might have arisen for them to explain the reasons they definitely remembered that he was there.²⁰ To introduce this testimony, the prosecutor should have requested, at the bench, that the trial court rule whether the other crimes evidence was “necessary” and therefore admissible despite its inflammatory content.²¹ Since the evidence in this case was on an alleged crime which had not been reduced to a final judgment, the court should also have conducted an initial inquiry, out of the jury’s presence,²² to determine that the defendant was connected with the other crime by “clear and convincing evidence,” before allowing the jury to hear the details of the General Transmission holdup.²³

B. The newspaper article found on appellant after he was arrested was headed “Two Firms Robbed in Five Minutes.” The text of the article conveyed the impression that the robberies had been committed by the same two men, “along with a third man” at the second robbery. In other words, the admission of the newspaper clipping posed the same dangers as the testimony of the General Transmission witnesses, in that it introduced evidence of one crime into the trial of another. But the clipping suffered from the added liability that nothing it related actually substantiated the inference that the same men had perpetrated both holdups; no descriptions were given of the robbers themselves or of their conduct which would show “identity” or similar “handiwork.” ²⁴ Moreover, if taken as proof of what it described, the article would clearly have been inadmissible as hearsay.

The trial court attempted to avoid this problem by telling the jury not to rely on the article “for the truth of the statements contained therein.” It is apparent, in fact, that the real value to the prosecution in this evidence was based on the inference that someone who possesses a clipping describing a crime is the person who committed that crime. Such an inference is certainly not unreasonable; innocuous noncriminal conduct may sometimes give rise to the inferences (1) that a person has a consciousness of guilty, and (2) that a person who thinks himself guilty is guilty. But, like all human conduct, the actions giving rise to such inferences are not without ambiguity. If a crime is interesting enough to merit a newspaper story, then by a parity of reasoning the story is interesting enough to be clipped. Everyone has probably at some time cut out a news article which caught his eye, although he was not involved in the events described in the article. The “weakness of * * * [the] inference” involved here suggests that the trial judge should have cautioned the jury with “a fuller explanation * * * of the variety of motives” which might have caused Bussey to have the article with him.²⁵ Although standing alone the admission of the article without such an instruction might not warrant reversal, we believe it supplies a further ground for reversal²⁶ in this case when considered with the other testimony. Furthermore, since the article was relevant, if at all, only to show consciousness of guilt and not to rebut the defense case, its admission should have been confined to the prosecution’s ease-in-chief.²⁷

Reversed and remanded for a new trial.

1 . Bussey was convicted of robbery, 22 D.C. Code § 2901, and of three counts of assault with a dangerous weapon, 22 D.C. Code § 502.

2 . The text of the article reads as follows:

“Two armed men in their early twenties robbed employees of a transmission shop on Bladensburg Road, Northeast, of almost $200 yesterday, police reported. Five minutes later two men answering their descriptions along with a third man, walked into an electrical supply house three blocks away and stole about $1000.

“Police said the pair took money from the wallets of Albert Luggi, 41, and two employees of Luggi’s transmission company at 1912 Bladensburg Road, Northeast, about 4:20 p.m. The holdup people escaped after locking Luggi and the employees in the closet.

“In the second robbery a trio took $1000 from the safe and cash register at Edison Sales Company at 2626 Bladensburg Road, Northeast.”

3 . Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 90 (1964).

4 . “Evidence of the accused’s past criminal history * * * [has] traditionally been viewed with distrust in Anglo-American law.” Note, Other Crimes Evidence at Trial, 70 Yale L.J. 763 (1961), citing McCormick, Evidence § 157 (1954) and Wigmore, Evidence §§ 193-194 (3d ed. 1940).

5 . McCormick, Evidence § 157, at 328 (1954), cited in Gov’t Brief at 9.

6 . Gordon v. United States, 127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967). See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

7 . The evidence introduced in the present case was subject to another objection noted in the Luek-Gordon cases, because it was evidence of robbery when appellant was on trial for robbery. This can only serve to increase “the inevitable pressure on lay jurors to believe that if he did it before he probably did so this time.” Gordon, supra, 127 U.S.App.D.C. note 6, at 347, 383 F.2d at 940. See Note, Other Crimes Evidence, supra note 4, at 773: “[Similarity between the other crime and the crime charged will tend to increase both the jury’s bias against the accused and the probative worth of the evidence.”

8 . Drew v. United States, supra note 3, 118 U.S.App.D.C. at 15, 331 F.2d at 89. Cf. Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966) (conviction reversed where jury could infer that accused had a criminal record from the “mug shot” placed in evidence).

9 . Those facts were that two (or three) men entered a store and asked a question of an employee, then ordered those present to lie on the floor while they took money from the cash register, and finally locked the victims in a backroom and escaped.

10 . See, e. g., United States v. Randolph, No. 23,222 (argued April 27, 1970) ; Young (Harris & Johnson) v. United States, Nos. 21,756-57 & 21,857 (argued March 3, 1970) ; United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (argued April 19, 1970).

11 . McCormick, Evidence § 157 (3), at 328 (1954).

12 . Wigmore, Evidence § 306(2) (3d ed. 1940). McCormick adds the cautionary note that “courts are stricter when applying their standards of relevancy when the ultimate purpose of the state is to prove identity * * * than they are when the evidence is offered on the ultimate issue of knowledge, intent or other state of mind.” McCormick, Evidence § 157, at 331 (1954).

13 . The closely-related “identity” and “handiwork” rationales were largely developed by the Government for the first time on appeal. For this reason, they lack support in the record below where the testimony of the General Transmission witnesses was offered in rebuttal, although “identity” and “handiwork” evidence should be part of the Government’s case-in-chief.

14 . Defense counsel below focused his objections to the scope of the “other crimes” evidence rather precisely. When the prosecutor first indicated that he intended to call the General Transmission witnesses, defense counsel stated that although one “cannot object to” testimony which places a defendant “in the area at the time” of the crime, he would “strenuously object” if the witnesses were called on to testify in rebuttal to the alibi that they were “being robbed” at that time.

15 . Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946). Cf. Hawkins v. United States, 358 U.S. 74, 79, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) ; Bollenbach v. United States, 326 U.S. 607, 613-614, 66 S.Ct. 402, 90 L.Ed. 350 (1946) ; United States v. Schor, 418 F.2d 26, 30 (2d Cir. 1969) ; Macklin v. United States, 133 U.S.App.D.C. 347, 410 F.2d 1046 (1969).

16 . As Mr. Justice Frankfurter observed concerning an argument which would “transfer to the appellate court the jury’s function of measuring the evidence,” Bollenbach v. United States, supra note 15, 326 U.S. at 614, 66 S.Ct. at 405, “the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty.” Id. at 615, 66 S.Ct. at 406.

17 . “You are instructed that evidence has been introduced that the defendant committed an offense similar in nature to the one [for] which he is now on trial. This evidence, that is with respect to General Transmission, was admitted solely for your consideration whether it tends to show the identity of the defendant as the person who committed the offenses at Edison Sales with which he is charged here. You are not required so to consider this evidence of the General Transmission robbery. Whether you do so or not is a matter within your exclusive province. You may not consider it as tending to show in any other respect the defendant’s guilt of the offenses of which he is charged here.”

Appellant objected to the giving of this instruction. We are constrained to note that the charge “instructed” the jury that the evidence showed “an offense similar in nature” to the one on trial; yet to the extent the “identity” issue was properly before the jury, this question of similarity lay at the heart of what the jury had to decide.

18 . Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (L. Hand). See also Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring) : “The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.”

19 . See also Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), where the Court held that the admission of a “constitutionally infirm” prior criminal conviction was not rendered harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), by “the instructions to disregard it.”

20 . Cf. Fitzpatrick v. United States, 178 U.S. 304, 315-316, 20 S.Ct. 944, 44 L.Ed. 1078 (1900).

21 . Evidence of other eximes is not necessary when the prosecution’s other evidence is overwhelming. In such circumstances, “the only meaningful effect of other crimes evidence would be to prejudice the jury against the accused.” Note, Other Crimes Evidence, supra note 4, at 771. On the other hand, the prosecution should not be allowed to introduce such evidence automatically, merely on the claim that the case is a “close” one.

22 . Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ; Gordon, supra note 6, 127 U.S.App.D.C. at 348, 383 F.2d at 941; Barnes, supra note 8, 124 U.S.App.D.C. at 321, 365 F.2d at 512. Such a hearing is in accord with the judge’s role as “preliminary tester” of the evidence. Wigmore, Evidence § 29, at 411 (3d ed. 1940).

23 . See Smith v. United States, 124 U.S.App.D.C. 57, 58 n. 4, 361 F.2d 74, 75 n. 4 (1966) ; Wrather v. State, 179 Tenn. 666, 678, 169 S.W.2d 854, 858 (1943) (rejecting requirement that other crime be shown “beyond reasonable doubt” in favor of “clear and convincing” evidence test).

24 . At least some of the facts related by the article are, in fact, inaccurate. For example, General Transmission is located at 2912 Bladensburg Boad, not 1912; only $640 was stolen from the Edison Sale Company, not “about $1000.”

25 . Austin v. United States, 134 U.S.App.D.C. 259, 261, 414 F.2d 1155, 1157 (1969) (instruction on “flight” from scene of crime).

26 . We note that after appellant was convicted in the present case, he pleaded guilty to the General Transmission robbery and was sentenced to five to fifteen years, to run concurrently with his sentence in this case. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

27 . Should the Government choose to refer to the article at Bussey’s retrial, the clipping should be limited so as to exclude all references to the General Transmission robbery. This could be accomplished, for example, by using a stipulation that Bussey had on him a clipping which recounted the Edison robbery.