UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Tamm and Robinson, Circuit Judges. Tamm, Circuit Judge, (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
On August 20 or 21, 1967, an apartment was burglarized, and a saxophone and other items were purloined. *fn1 On August 21, a man identifying himself as Wilson Terry pawned the saxophone, signing "Wilson Terry" on the pawnbroker's copy of the ticket evidencing the transaction. The pawnbroker's appraiser spotted appellant in the pawnshop on the following September 18 and, believing him to be the man who had brought the stolen saxophone in, promptly called the police. *fn2 After conversations with appellant and the manager of the pawnshop, who made a similar identification, the police officers placed appellant under arrest. A search of his person produced a copy of the pawn ticket for the saxophone and identification cards bearing the name "Wilson F. Terry."
Indicted in counts of housebreaking *fn3 and grand larceny, *fn4 appellant stood trial in the District Court before a jury. The real Wilson F. Terry testified that he had lost the identification cards, and denied signing the "Wilson Terry" on the pawn ticket. A handwriting expert expressed the opinion that appellant had made that signature, *fn5 and the two employees of the pawnshop reiterated their identifications of appellant as the party who had pawned the saxophone.
As is evident, the Government's theory that appellant had broken into the apartment and filched the saxophone was based wholly upon an inference from its possession by appellant shortly after it was stolen. Appellant offered no witnesses in his own behalf and, for reasons hereinafter elucidated, did not take the witness stand himself. The prosecuting attorney argued to the jury that it should, and the trial court charged the jury that it might, infer appellant's guilt of either or both of the offenses charged from unexplained possession of the saxophone so closely on the heels of its theft from the apartment. *fn6 The jury convicted on both counts, and the court sentenced appellant to imprisonment for a maximum term of 12 years.
The principal argument on appeal, and the only contention meriting discussion, *fn7 is that the court misapplied our Luck *fn8 doctrine in ruling on appellant's request for testimonial immunity from impeachment by the use of criminal convictions which he had accumulated. We held in Luck that trial judges have discretion to limit or ban impeachment of that type where "the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant foregoing that opportunity because of the fear of prejudice founded upon a prior conviction." *fn9 Appellant's challenge thus commands our scrutiny of the record with a view to ascertaining whether the teachings of Luck and its progeny *fn10 were honored in this case.
At the close of the Government's case in chief, defense counsel *fn11 approached the bench and informed the trial judge that he "would like to put the defendant on the stand if we can have the benefit of the Luck decision. In other words, what I am interested in is not having his record spread before the jury." Without further inquiry of any sort, the trial judge, citing our Gordon *fn12 holding, stated that "anything that has to do with cheating and stealing is admissible," and proceeded at once to examine appellant's criminal record. Going down the list of past offenses, he excluded one, *fn13 but ruled that the Government could use a conviction for housebreaking and larceny, an additional larceny conviction, and three convictions of false pretenses. The judge then concluded the inquiry, appellant elected not to testify and, as we have observed, the case went to the jury on the Government's evidence alone. *fn14
In Gordon, *fn15 we held that "as a rule of thumb" *fn16 convictions evidencing dishonest conduct go to testimonial credibility while those involving assaultive or violent conduct do not, *fn17 and the trial judge made that distinction here. Gordon also emphasized other considerations highly relevant to an adjudication on impeachment by prior convictions, but we find no indication that they were assigned a role in this case. One such consideration is the remoteness, in point of time, of a conviction; *fn18 another is its similarity to the offense for which the accused is on trial. *fn19 Still another is the importance, in the search for truth, of giving the triers of fact the benefit of the accused's testimony. *fn20 Here the housebreaking and larceny conviction came in 1959; when the others occurred we know not. Moreover, two of the convictions the judge would have let in were for larceny, one of the offenses with which appellant was charged. And notwithstanding the judge's elimination of some of the convictions, we discern no effort to weigh the prejudicial effect of impeachment by those remaining upon such testimonial contribution as appellant could have been expected to make.
Even more importantly, we have recognized, from early in the Luck era, that "where inferences founded upon unexplained acts are likely to be heavily operative, the court's discretion to let the jury hear the accused's story, unaccompanied by a recital of his past misdeeds, may play an important part in the achievement of justice." *fn21 In the case at bar, appellant's version of the affair, unembarrassed by mention of his previous difficulties with the law, could very well have been crucial. The success of the prosecution depended entirely upon the strength of an inference from appellant's possession of the stolen saxophone that he was the housebreaker who stole it. Unless the fact of possession was refuted or satisfactorily explained -- and ostensibly only appellant could possibly do either -- that fact was "likely to be heavily operative" against him.
The Government argues, however, that appellant should not benefit from an application of Luck principles because appellant's trial counsel made no representation as to what appellant's testimony would be, or as to the unavailability of other witnesses to establish his defense. We have said many times that it is for defense counsel to invoke Luck, *fn22 and to invoke it in a meaningful way, *fn23 and this, of course, will necessitate initially some explanation of the theory and testimonial details of the defense where, as usually is the case, they cannot otherwise be made known to the court. *fn24 At the same time, we have admonished that, once the Luck issue is raised, defense counsel's shortcomings *fn25 do not mitigate the need for an exercise of judicial discretion. *fn26 Certainly there is nothing to commend a requirement that defense counsel delineate that which is already plainly apparent to all concerned. *fn27
When, after the Government rested in this case, appellant's attorney requested the Luck ruling, it was manifest that the Government had hung its entire effort on the inference permitted by an unexplained possession of recently stolen property. It was equally clear that the Government in its endeavor to win the verdict, was forced to ask for an appropriate instruction on that score. In that setting, appellant's proposed testimony, if it was to be helpful at all, had to be directed toward an explanation of his possession of the saxophone, or toward a denial of that possession and an explanation as to how he came to have the pawn ticket. Indeed, in the same monologue which contained his disposition of the Luck issue, the trial judge said to defense counsel: "What is your defense? He didn't do it and didn't go in there and didn't have it. That is all you can say." And we realize, as we think the trial judge also should have done, that all too frequently the innocent have no witnesses other than themselves who can testify on such matters.
We hold that the circumstances here emphatically enough called upon the trial judge to strike the balance that Luck demands and, in the process, "to make sufficient inquiry to inform himself on the relevant considerations." *fn28 We mean, not that all impeachment by appellant's past record was necessarily to be ruled out, but that a suitable exploration and a sound discretionary exercise became requisite. But since, in some though certainly not in all respects, the Government's case was strong, *fn29 we are not prepared to say that the judge's omission to do so entitles appellant to a new trial. Any sound disposition of this litigation must follow an inquiry as to what result a proper exercise of Luck discretion would have produced, and whether the failure to achieve that result prejudiced appellant. *fn30 Such a probe, in turn necessitates precise knowledge as to what appellant would have said from the witness stand and, in somewhat smaller degree, as to the availability of other witnesses who could have said the same thing.
Accordingly, we remand this case for a Gordon-type hearing *fn31 in which these and any other relevant points may be investigated. *fn32 Unless the trial judge, after considering all the circumstances, old and new alike, can say "with fair assurance" that the verdict "was not substantially swayed by ...