McGOWAN, Circuit Judge:
Appellant was convicted of housebreaking and larceny after a trial at which he put forward an alibi defense. His principal contentions upon appeal are that the District Court erred in (a) receiving in evidence appellant's admission of guilt, and (b) allowing the Government to show by way of impeachment his prior conviction of grand larceny.
Police testimony offered at the trial as a part of the prosecution's case was as follows: At 10:04 P.M. on June 8, 1963, a burglar alarm company received a signal
Appellant, testifying in his own defense, denied the foregoing version. He said that, at some point between 10:30 and 10:45 on the evening in question, he had just left a companion and was walking along the street several blocks from the laundry. A police cruiser drew up beside him; two officers got out, handcuffed him and took him into custody, saying something to the effect that they "had him this time." He was taken to the laundry, where he arrived at about five minutes of eleven. There he was questioned. At first he denied having robbed the machine or entered the building, but thereafter said what he was told to say because he was tired of questioning. He stated that he had in his possession four $1 bills and $1.40 in change, which was later taken from him at the precinct station. He expressly claimed that any admissions made by him were "not voluntary."
When, during the Government's case and in the presence of the jury, the police officer testified to what appellant had said in answer to a question about the vending machine, defense counsel objected that the admission was the result "of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever." The court overruled this objection, contenting itself with addressing two or three questions to the police officer as to whether any promises or threats had been made.
This handling of the issue of voluntariness raised by counsel's objection does not comport with the procedural standards prescribed by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We note preliminarily that the court here permitted, and indeed invited, the officer's answer to be forthcoming in the jury's presence even before counsel's objection could be fully articulated.
The second issue raised on this appeal warrants some discussion. While appellant was testifying, he was asked by the prosecutor whether he had pleaded guilty to grand larceny in the District Court on March 15, 1961. Over objection, he was permitted to answer that he had. The ground of the objection was that appellant was a juvenile at the time of the earlier crime, and that a conviction for it could not be introduced in evidence for any purpose, including impeachment of credibility. The Government contended that, because, at the time of the 1961 offense, the Juvenile Court had waived jurisdiction over appellant and he had been treated as an adult in the District Court and sentenced under the Youth Corrections Act, this prior conviction was admissible for impeachment purposes.
Appellant relies in this regard upon the provisions of Section 2308(d) of Title
We agree with the Government to this extent, namely, that we find no clear purpose on the part of Congress to withdraw from the reach of this last-mentioned statute convictions of juveniles in the District Court as adults following upon waivers of jurisdiction by the Juvenile Court. Just as more severe sentencing provisions are available for the punishment of those who are waived, so does conviction entail the consequence that the Government may seek to use it to attack credibility in a later proceeding. Such harsher consequences are always arguments against the wisdom of waiver in an individual case, but their very persuasiveness for this purpose rests upon the existence of such consequences. This is implicit in Judge Youngdahl's statement, made in support of his conclusion to proceed against a defendant as a juvenile and not as an adult, that to do otherwise would mean that the defendant would "be branded with the mark of `criminal' for the rest of his life * *." United States v. Anonymous, 176 F.Supp. 325, 326 (D.D.C.1959).
To the extent, however, that the Government's position implies that the prosecution is always entitled to introduce a juvenile's earlier conviction as an adult following upon waiver of jurisdiction over him by the Juvenile Court, we do not agree. Section 305 is not written
The matter is, we reiterate, one for the exercise of discretion; and, as is generally in accord with sound judicial administration, that discretion is to be accorded a respect appropriately reflective of the inescapable remoteness of appellate review. We cannot say, on the record before us, that the court committed reversible error in permitting this appellant to be asked about his prior conviction, but, in the event that a new trial results from the remand we have concluded to make, the judge trying that cause should feel free to approach the problem, if it arises, as one to be decided according to his best judgment in the light of the record as it develops before him.
The case is remanded for further proceedings not inconsistent herewith.
It is so ordered.
DANAHER, Circuit Judge (concurring in part and dissenting in part).
As the Government's case was being developed and as it turned out, about 25 minutes elapsed between the searching of this appellant and his being booked at the precinct. His trial counsel stipulated that the appellant was booked at 10:45 P.M. Brought from the roof into the laundry plant, the appellant stood in front of a Coke machine which had been broken open. The coin box was on the floor. The appellant was searched. In his right rear pocket were 8 quarters, 37 dimes, 14 nickels and 2 one dollar bills. The prosecutor asked the officer what conversation he had with the appellant in the circumstances just described. Such was the background for the sequence of questions and answers as they appear in footnote 1 of Judge McGowan's opinion, in the course of which the trial judge ruled admissible the appellant's oral statement that he had broken into the Coke machine.
Defense counsel contended that the oral admission was "inadmissible and it is incompetent." In November 1963, just as did the trial judge, I would have ruled against him on both points. Counsel stated "It is uncorroborated," but the record is otherwise. "It is not threshold," he said, and again I disagree. Not until the appellant was brought from the roof and down into the laundry could the officers have known what had happened.
Our question then arises in the context that defense counsel went on to state that the oral admission was the result "of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever." In November 1963, as did the trial judge, I would have regarded such purported grounds of objection to be utterly frivolous.
There had not been the slightest suggestion of "coercion." There was then no evidence that the appellant's admissions were other than voluntary. Defense counsel did not ask that the jury be excused and that a hearing be held. There was no proffer of evidence that the police had acted improperly in any respect whatever.
Even so, I reluctantly conclude that we are bound to remand for a hearing on the issue of voluntariness. In Pea v. United States,
In the latter case the majority wrote that an accused is entitled
Again the majority stated in Jackson that
Further, the majority pronounced, the reliability of a confession has nothing to do with its voluntariness and
Under the circumstances and since there had been no such hearing here, a remand is in order that there may be a hearing and determination on the issue of voluntariness whether or not the issue had been raised by an objection patently frivolous at the time it was made, as this one was. So I join in the remand solely because of Jackson v. Denno, supra.
With the greatest of deference, I do not agree that it was open to us to consider on this record whether or not "the court committed reversible error in permitting this appellant to be asked about his prior conviction." The Supreme Court in Fitzpatrick v. United States
In Raffel v. United States the Court reiterated that when an accused takes the stand in his own behalf, he does so as does any other witness. His waiver of Fifth Amendment rights is not partial the court said, adding, "having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing."
So it is that under our statute,
When our statute says that the "fact" of previous conviction "may be given in evidence," to me it is speaking of an option open to "the party cross examining" the witness. I think my colleague has misconstrued the language and its objective. That language tells the trier the fact of conviction is evidence, and it is to be received. Of course, a party is not bound thus to impeach a witness. That is why the word "shall" is not used.
If the dictum in Judge McGowan's opinion is intended to be read as meaning that the trial judge — and not the cross examining party — has the option of deciding whether or not the fact of a prior conviction may be used for purposes of impeachment, I disagree. If the discussion is meant to imply that a trial judge may in his discretion exclude such competent evidence, I disagree.
My comment, in turn, does not reject the principle that the trial judge may exercise a broad discretion with reference to cross examination in certain impeachment situations.
Here the trial judge conducted extensive inquiry into the status of the appellant at the time of his prior conviction. He heard argument on the effect of the earlier waiver by the Juvenile Court. He satisfied himself that this case was not within Thomas v. United States
I deem further discussion unnecessary.
"An adjudication upon the status of a child in the jurisdiction of the [juvenile] court does not operate to impose any of the civil disabilities ordinarily imposed by conviction, and a child is not deemed a criminal by reason of an adjudication. An adjudication is not deemed a conviction of a crime, and a child may not be charged with or convicted of a crime in any court, except as provided by section 11-1553. The disposition made of a child, or evidence given in the court, is not admissible as evidence against the child in any case or proceeding in any other court, and the disposition, or evidence, or adjudication, does not operate to disqualify a child in any future civil-service examination, appointment, or application for public service under either the Government of the United States or of the District of Columbia."
The waiver provision first appeared as a part of the revision of the Juvenile Court Act in 1938. That revision enlarged the jurisdiction of the Juvenile Court to cover all offenses committed by persons under 18, but it altered the nature of the court so as to make clear that it was not administering the criminal law. Exposure to that law in the usual way was to follow only upon a waiver by the Juvenile Court of its jurisdiction, which could be effected as to any person over 16 charged with a felony. In 1947 this waiver authority was extended to cover any person charged with an offense punishable by death or life imprisonment.
A defendant who is considering whether or not to testify on his own behalf may want, if possible, to know to what extent the trial judge will permit him to be impeached by his past record. Although a trial judge cannot be expected to give preliminary rulings which will foreclose him completely as the trial progresses, it would appear that careful exploration of such a request outside the presence of the jury would be in order.
Compare Michelson v. United States, 335 U.S. 469, 480-481, 487-488, 69 S.Ct. 213, 93 L.Ed. 168 (1948), in which the Supreme Court recognized the trial court's heavy responsibility in regulating the introduction of evidence of the accused's character.
McCormick points out that in England and in Pennsylvania "the accused who takes the stand is shielded, under certain circumstances, from inquiry or proof as to misconduct or conviction of crime when offered to impeach." McCORMICK, EVIDENCE § 43, at 94 (1954). Both Rule 21 of the Uniform Rules of Evidence and Rule 106 of the American Law Institute's Model Code of Evidence strictly limit the use of past convictions to impeach a defendant's credibility. The former provides:
Both the Uniform Rules and the Model Code speak in terms of "admissible" evidence, as distinct from evidence that must be admitted. And in Rule 303 the Code sets up a highly desirable guide for the trial judge: