United States v. Ernest E. Simpson, United States of America v. Clarence E. Williams , 445 F.2d 735 ( 1971 )

PER CURIAM:

The two appellants were charged with second degree burglary¹ and grand larceny² arising out of an apparent theft from a midtown Washington jewelry store. Both were convicted of burglary but found not guilty of grand larceny. We affirm.

Appellants urge an apparent inconsistency in the jury verdict. But since the missing jewelry was never recovered, it is clear that the jury could have found that the value of that taken by the two appellants and their missing accomplice was less than the value required for grand larceny, or indeed that the missing jewelry had not been taken by the appellants at all, even though the jury was certain that appellants had burglarized the jewelry showcase by cutting a hole through the glass and attempting to remove jewelry.

Nor was there error in giving the so-called Allen³ charge as part of the District Court’s original charge to the jury. Whatever objections may be made to the Allen charge under certain circumstances, those objections have even less force when the Allen charge is given originally rather than later in an effort to pry a verdict out of a deadlocked jury. In one form or another it has been frequently approved by this court.⁴

The trial court conducted a Luck⁵ hearing, in which it was advised that from 1959 to the date of this offense appellant Simpson had been convicted of larceny twice and of robbery once. When he took the stand the Government sought and was permitted to introduce only the latest offense of robbery in 1962, some seven years before this trial, as bearing on honesty and veracity. Appellant Simpson contends the previous conviction was too remote and too prejudicial in relation to its probative value on appellant’s credibility, with which our dissenting colleague agrees.

We think the evidence of conviction of robbery was properly allowed for impeachment purposes, and the trial judge instructed the jury it was to be considered only as bearing upon the appellant’s credibility on the witness stand. A rule disallowing such conviction evidence would enable an accused to appear as a person whose character entitled him to complete credence, when the facts of his life are to the contrary. Excluding such evidence would also deny a valuable argument to the witness accused who has no prior record.

The trial judge here exercised his discretion after a careful review of relevant factors. It is difficult to reverse the District Court’s decision on the ground he abused his discretion, when his determination was well within the parameters established by Congress for this jurisdiction, effective 1 February 1971. Section 14-305 of Title 14 of the District of Columbia Code will then provide that “for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, * * * only if the criminal offense * * * involved dishonesty or false statement (regardless of punishment.” ⁶ And this is in accord with the standard of the proposed Rules of Evidence for the United States District Courts and Magistrates, March 1969 draft of Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Rule 6-09(a).⁷ Appellant Simpson’s previous offense of robbery involved dishonesty, and was therefore admissible and relevant to his credibility when Simpson essayed the role of witness.

As to the remoteness of the conviction, we observe that the trial judge was equally within the standard of Section 14-305 which will provide (effective 1 February 1971):

No evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from commitment imposed for his most recent conviction of any criminal offense, or (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense.

We note that appellant Simpson had been incarcerated for the 1962 robbery until eight months prior to the burglary for which he was convicted. While this court has previously considered, as our dissenting colleague points out, that remoteness should be measured from the date of the previous conviction, not release, the new congressional standard will measure remoteness from the date of release from his most recent conviction. Appellant here had demonstrated his capacity to lead a blameless life for only eight months until his participation in this offense. The preliminary draft of proposed Rules of Evidence for the United States District Courts, Rule 6-09(b), is also in complete accord with the standard adopted by Congress for the District of Columbia.⁸

On any standard, the trial judge was well within the bounds of his reasonable discretion here. As a practical matter, if we were to conclude the trial judge had abused his discretion on the basis of any standard of admissibility for impeachment purposes enunciated by this court, and were to remand for a new trial, the case would probably not come before the District Court until after 1 February 1971, at which time the District Court would be compelled to follow the new statutory standard.

Convictions of both appellants are hereby

Affirmed.

1 . 22 D.C.Code § 1801(b).

2 . 22 D.C.Code § 2201.

3 . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

4 . See United States v. Johnson, 139 U.S. App.D.C. 193, 432 F.2d 626 (1970) where this court said that the form of the Allen charge suggesting that jurors advocating a minority position ought to reassess their findings in light of the conclusion of the majority was “not necessarily, or even likely, to be coercive * * (at 633.) Our basis in that opinion for suggesting the adoption of the recommended version of the ABA Project' — which excludes the majority-minority language — -was the promotion of the efficient administration of justice by avoiding “recurring controversies, turning upon subtle questions of coercion in the context of each case.” (at 633). Thereafter we exercised our supervisory powers, prospectively, to require compliance with the ABA recommendations in the District Court. United States v. Thomas, No. 22,768 (D.C.Cir., 6 Nov. 1970).

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

6 . Section 14 — 305 currently is silent on the types of convictions which may be offered into evidence to affect the credibility of a witness. The more specific language of this section was enacted in the District of Columbia Court Reform and Criminal Procedure Act of 1970, 29 July 1970, 84 Stat. 550, Pub.L. 91-358, § 133, eff. 1 Feb. 1971.

7 . Rule 6-09(a) reads:

GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment.

8 . Rule 6-09(b) reads:

TIME LIMIT. Evidence of a conviction under this rule is inadmissible if a period of more than 10 years has elapsed since the date of the release of the witness from confinement, or the expiration of the period of his parole, probation, or sentence, whichever is the later date.