LEVENTHAL, Circuit Judge:
The principal question raised on this appeal of three defendants jointly tried and convicted under a single-count indictment charging robbery,
1. The background facts are developed in the testimony of Samuel Lee Evans, the victim and sole eyewitness. On Saturday, January 14, 1967, after leaving work and having a couple of beers, he walked up Seventh Street, N.W., Washington, D. C., some time past midnight. While walking in the 1500 block he "passed" a laundromat and "saw four fellows * * * standing in the window." He "glanced at them"
Some days later Evans saw appellants at a neighborhood bar.
The sequence of events leading up to the arrest of appellants is somewhat unclear. Evans testified that "when the police came they [appellants] ran out and went down the street." Detective Jenkins, the plainclothesman who responded to Evans' call, arrived at the bar around 6:45 p. m. He testified that he observed appellants Davis and Brown "walking at a fast pace in the Seventh, the 1500 block." Detective Jenkins "got out of the automobile south of them while Detective Monaco pulled the cruiser up in front of them." When Detective Jenkins called Brown and Davis back, Evans made a positive identification. Within a few seconds defendant Johnson approached and inquired as to what was going on. Evans identified Johnson, and all three appellants were placed under arrest.
The three defendants each sought to establish an alibi defense. Counsel for Davis called Leola Jackson, whose daughter had "been going" with Davis at the time in question. Mrs. Jackson testified that Davis had come to her home on the evening of the 14th and left early Sunday morning around 4:00 or 5:00 a. m.
The other defendants' presentations paralleled in pertinent essentials Davis's defense. Defendant Brown, like Davis, took the stand and denied participation in the crime, and counsel for both Brown and Johnson produced alibi witnesses in behalf of their respective defendants.
To buttress the impeachment on cross-examination of the credibility of these alibi witnesses,
2. We now focus on appellants' efforts to impeach the credibility of Evans by reference to his prior criminal record. The background facts related above highlight the character of the trial as essentially a credibility contest. Under the circumstances it was crucial that both parties be afforded every reasonable opportunity to adduce at trial evidence pertinent to the credibility of the witnesses. However, the prerogative of impeachment is subject to limitation by the trial judge in the exercise of his discretion. "[T]he question
The record is somewhat unclear as to the precise details of Evans' prior record. Apparently between 1953 and 1966, he had been seven times convicted of major offenses.
The trial judge permitted defense counsel to inquire into three of Evans' convictions: for attempted robbery, 1954; burglary, 1956; and auto theft, 1959. He excluded inquiry concerning Evans' convictions for assault, 1953; felonious assault, 1961; and assault, 1966, and also excluded inquiry as to the conviction for rape, 1963. It appears that the trial judge accepted the Government's view that the point at issue is governed by the doctrine of Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
3. There is little doubt that the ruling, if made as to impeachment of a defendant witness, would be sustained as within the ambit of the judge's discretion.
Appellants' basic point is that different considerations are applicable where the witness is the complainant rather than the defendant, and that the trial judge erred in failing to take these differences into account. While there are some differences in the considerations applicable to the two types of witnesses, and in an appropriate case they may properly lead the trial judge to exercise his discretion so as to provide differences in his rulings, we do not think the differences suggest an abuse of discretion in the case at bar.
The similarities, indeed, loom larger in legal impact than the differences. Both defendant-witnesses and other witnesses are governed by the same statute so far as impeachment by conviction is concerned, see 14 D.C.Code § 305. This statute has been authoritatively interpreted in Luck to mean that prior criminal convictions are not to be automatically received into evidence for purposes of impeachment, and may be excluded by the trial judge in the exercise of his discretion:
The ruling establishing a discretion in the trial judge is applicable to all witnesses.
We have pointed out that the sound exercise of discretion should take into account the kind of conviction offered as impeachment, and that a distinction is to be drawn between acts reflecting on honesty as contrasted with
There is some difference between witnesses in regard to the risk to which they may be exposed. A defendant-witness runs the risk that evidence offered by way of impeachment will be used by the jury to a material extent as the basis for conviction, notwithstanding reasonable doubt as to responsibility in the case at bar, because of the human temptation to shut away a "bad man."
While that precise risk is not present where impeachment is offered against the complainant, there is the distinct possibility that the jury will acquit a man plainly guilty of crime because of their distaste for the victim. They may, for example, conclude that an established rapist is not one to complain of a street corner affray, or even robbery. The jury system that provides the sense of justice of the community may also at times inject unwelcome and unpredictable peccadillo, and even prejudice. Rules of law, however, must seek to further what the courts discern as enduring values in the administration of criminal justice. One of these, surely, is the community interest in convicting those guilty of crime, even though the particular conviction is odious for some reason.
There is a more subtle consideration involved. At a time when crime besets the inner cities where many residents have, unhappily, some criminal record, we are increasingly concerned that too many offenses go unreported, and that police protection should be increased rather than diminished in these areas. These people, too, must be assured that they have a stake in our society, and that they can achieve justice by application to the law and its guardians. Yet the rule urged by appellants with its invitation to a confusion of values would tend to go contrary to our society's basic tenets, by establishing a kind of outlaw, outside the protection of the law.
There is another difference between types of witnesses. A defendant witness has a constitutional right to refrain from testifying; other witnesses are subject to subpoena. While this is not without legal significance, it is subject to offset in the difficulties already confronting the government which must persuade witnesses to testify and to shoulder, as a cost of good citizenship, time lost, tension met, and retaliation feared.
Generally, then, there is wide room for application of the doctrine of Luck and its progeny to witnesses other than criminal defendants, though there may be cases where a trial judge should make distinctions in his impeachment rulings. Here the trial judge permitted impeachment of the complaining witness with three convictions for crimes having an element of dishonesty. We cannot say there was an abuse of discretion affecting substantial rights of defendants in their inability to spice their attack on the credibility of the witness by reference to his convictions for rape and assault.
4. Appellants also contend that the trial judge committed reversible error by allowing the prosecutor to question defendants Davis and Brown about their financial condition.
Where an accused is penniless or in financial difficulties and turns up after a crime with a hefty bankroll, a trial judge may, in his discretion, permit a prosecutor to inquire into the defendant's pecuniary situation. Compare United States v. Daniels, 377 F.2d 255 (6th Cir. 1967). Where the evidence elicited only demonstrates that the defendant is "poor," the inquiry is improper: "Whatever probative value this evidence had, it was outweighed by its prejudicial effect." See United States v.
While we think that the trial judge erred in countenancing this line of questioning, we do not think it requires a reversal.
We take into account that it is not one of several errors spotted, as in Mullings, supra, but rather the only one we have.
While the issue is not free from difficulty, and there would be more disposition to find reversible error if any such objections are overruled after issuance of this decision, taking the record as a whole we do not find reversible error.