Goins v. United States , 1984 D.C. App. LEXIS 313 ( 1984 )

BELSON, Associate Judge,

dissenting:

I agree with the majority that the trial court erred in excluding as hearsay appellant’s statement that the scrap dealer’s purchasing agent asked him to continue using the name of a former employee of appellant to simplify the dealer’s bookkeeping. However, I am unable to agree that this error was harmless.

The evidence that appellant had used two aliases could very well have been significant to the jury’s decision to convict appellant on two counts of petit larceny. Appellant was allowed to explain his other use of an alias. He testified that he used the name Edward Dickerson in obtaining a learner’s permit because his own permit had been revoked for drunk driving. While that explanation did him no honor, the jury might have found it credible.

Appellant was not, however, allowed to explain his use of the alias, John Robinson, at a most crucial phase of the transaction, in signing a certificate that he was the owner of the automobiles in question. While we might speculate that the jury would have have disbelieved appellant’s testimony that he had been told by the scrap processor to use a certain alias to simplify bookkeeping, we cannot base our determination on such conjecture. Appellant was entitled to have the jury consider his explanation. If the explanation had been believed, then the government’s case against appellant would have been considerably weaker.

The majority stresses that appellant used two aliases in conducting his business, and states that this “permitt[ed] the inference that appellant was thereby insulating himself from any official scrutiny while picking up and then delivering the stolen autos to the scrap processor.” At 366. I agree that this inference was permitted. But it was by no means compelled, and I conclude there is a real danger that the jury’s judgment was influenced by the trial court’s erroneous ruling. Aside from the circumstances surrounding appellant’s sale of the automobiles to the scrap dealer, the government’s case rested almost entirely on inferences which could have been drawn from the possession of the not-so-recently stolen property. Accordingly, I think we cannot say with fair assurance that the judgment here was not substantially swayed by the error. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). I would reverse and remand for new trial.