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04/10/73 United States of America v. James A. Lewis

April 10, 1973






Fahy, Senior Circuit Judge, McGowan and Robinson, Circuit Judges. Fahy, Senior Circuit Judge, concurring specially.


This appeal follows appellant's second trial on an indictment charging single counts of armed robbery, *fn1 unarmed robbery *fn2 and carrying a dangerous weapon, *fn3 and two counts of assault with a dangerous weapon. *fn4 The first trial ended when the jury was unable to agree; the second led to appellant's conviction on all of the charges but unarmed robbery. The sole issue on appeal is the validity of a ruling by the trial judge granting the prosecutor leave to cross-examine appellant's proposed character witnesses, if called, as to their awareness of a recent arrest of appellant on a charge of violating the federal narcotic laws. We find error, but we further find that in the circumstances of the case it does not warrant reversal. We accordingly affirm the conviction. I

The indictment in suit emanated from a daytime holdup of two employees of a Safeway store as they walked therefrom toward a bank to make a deposit of store receipts. At the second trial, four eyewitnesses identified appellant as one of two men who staged the holdup, and other evidence pointed strongly to his participation in the affair. *fn5 Appellant asserted an alibi and presented eyewitnesses who in some respects corroborated his version of events transpiring before the robbery. *fn6

On the first trial, appellant presented a witness who testified that his character for honesty, peace and good order was good, and the prosecuting attorney was permitted, on cross-examination of the character witness, to ask whether she had heard of a prior arrest of appellant on a charge of unauthorized use of a motor vehicle. *fn7 Two weeks before commencement of the second trial, appellant was arrested for an alleged violation of the federal narcotic laws. *fn8 The issue confronting us traces its origin to that arrest.

At the second trial, as the Government's case-in-chief neared completion, the prosecutor, in the absence of the jury from the courtroom, inquired as to whether character evidence would again be offered in appellant's behalf. Defense counsel *fn9 stated that he had requested two character witnesses to be on hand but that he was uncertain as to whether he would call them. Counsel explained that only after arranging for the presence of the witnesses had he learned of appellant's narcotic arrest, and that he "would just like to talk to my character witnesses to see if they know about it." During the colloquy, the prosecutor reminded the trial judge that at the first trial, at which the same judge presided, the Government had been allowed to query appellant's character witness on her awareness of appellant's arrest for unauthorized use of a vehicle. The prosecutor made it clear that he wished a ruling permitting the same range of cross-examination as to that arrest, and as well the narcotic arrest in the event that the character witnesses were used.

Later during the trial, as the presentation of the case for the defense approached an end, the subject was again discussed at a bench conference, and the prosecutor renewed his request for leave to interrogate the character witnesses as to their knowledge of the two arrests. Defense counsel advised that he had not had an opportunity to see the character witnesses; "I want to talk to [them,] I may not use them," he reminded the prosecutor and the trial judge. The judge then offered a short recess for that purpose, but ruled that if character witnesses were called the prosecutor could inquire on cross-examination as to whether they had heard of the arrests. The recess was taken, and when the trial resumed the defense rested without presenting character testimony.

Since, following the judge's ruling, the character witnesses were not used, the record does not establish the aspects of appellant's community reputation to which they would have testified. On appellant's first trial, however, his good reputation for peace, good order and honesty was attested, and there is nothing to suggest that, aside from the presentation of an additional witness, the endeavor at the second trial would have differed. The offenses being tried were all crimes of violence, and before the judge ruled appellant had taken the witness stand in his own behalf. The good-character evidence would naturally have pertained to traits both of peacefulness and veracity, and we have no cause to believe that appellant would not have sought from his character witnesses all the help he could have gotten. Both the prosecutor and the trial judge appear to have assumed that the testimonial content of appellant's second effort would have duplicated the first. In assessing appellant's challenge to the ruling, then, we assume that had the character witnesses been called they would have testified that appellant bore in the community the reputation of a truthful, law-abiding citizen. *fn10

We also recognize that the decision not to use the character witnesses was tactical, and for very good reason, but, as we shall later see, *fn11 that consideration does not shield the judge's ruling from attack. As defense counsel emphasized during the two colloquies preceding the ruling, he had just learned of appellant's narcotic arrest and had not had a chance to ascertain whether the witnesses knew of it. On the first trial, the judge had permitted inquiry of appellant's character witness as to her knowledge of his arrest for unauthorized use of a motor vehicle. Particularly with the same judge presiding at the second trial, the expectation of a similar indulgence -- this time extending to the narcotic arrest also -- loomed large to defense counsel, who had represented appellant at the first.

Very understandably, then, counsel made plain his intention to interview the character witnesses on hand for the second trial further before undertaking to offer them. It was evident that the prosecutor would be allowed to ask about the unauthorized-use arrest, but the recent narcotic arrest posed a dilemma of greater magnitude. If the witnesses already knew of it, their avowal of good reputation was more vulnerable than before, and if they had been previously unaware of it their familiarity with appellant's community reputation was wider open to debate. *fn12 As the legal profession well knows, the accused may pay dearly for any use of second-rate character witnesses; *fn13 and in the instant case cross-examination as to the narcotic arrest would itself have brought the fact of that arrest to the attention of the jury. We have no difficulty in recognizing that inquiry about an arrest for unauthorized use of a vehicle is one thing, but that inquiry disclosing an arrest for a narcotic violation is something else again. On the other side of the ledger, from counsel's viewpoint, there would be no showing of good character at all if the witnesses were not called.

Since, after the recess taken for counsel's interview with the character witnesses, the defense rested without further ado, it is obvious that the showing on character was abandoned in order to avoid the prosecutor's questions respecting the narcotic arrest. It is clear, however, that the decision not to use the character witnesses does not immunize the action of which appellant complains. The prosecutor solicited and the trial judge rendered a ruling that appellant's character witnesses could be questioned as to whether they had heard of his arrest on the narcotic charge. The decision to forego character evidence was reached only after the ruling was made. There was no reason whatever to yield on the character presentation which defense counsel had planned save to keep away from mention of that arrest. On the contrary, it would be ridiculous to assume that the presentation would not have gone forward had the judge ruled the other way. It was the judge's ruling which opened the door to the unwanted inquiry -- in the context of the prosecutor's position, and inquiry which was a virtual certainty. It would blink reality to say the ruling did not influence the decision, if indeed it did not actually dictate it. We must, then, scrutinize the ruling to ascertain whether it was correct, and whether it was prejudicial if incorrect. *fn14 II

The principles governing the use of character evidence in criminal trials in this circuit have been delineated in past decisions, and need only brief summarization here. The accused may elect to advance one or more of his character traits as evidence of his innocence. *fn15 If he does, his proof is confined to evidence of his reputation in the community for those traits. *fn16 His presentation, in terms of number of such traits, may be as narrow or as broad as he chooses so long as it remains germane to issues on trial. *fn17 Good-character evidence may of itself generate a reasonable doubt as to guilt, *fn18 and the accused is entitled to have the jury so instructed. *fn19

The Government's options as to character-proof depend upon what the accused undertakes to do. Conviction of crime must rest upon proof beyond a reasonable doubt of the elements of a crime specifically charged, and evidence of a general predisposition toward crime is taboo. *fn20 The prosecutor cannot offer bad-character evidence unless the accused first introduces evidence of good character; *fn21 even then, the prosecutor's proof is restricted to ...

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