# Willie Lee Stewart v. United States > Court of Appeals for the D.C. Circuit · March 30, 1960 · 275 F.2d 617 URL: https://www.frixlaw.com/law-library/cases/9447229 ## Case - **Full name:** Willie Lee STEWART, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 30, 1960 - **Citations:** 275 F.2d 617 - **Precedential status:** Published - **Opinion:** Dissent by Fahy - **Judges:** Prettyman, Edgerton, Miller, Bazelon, Fahy, Washington, Danaher, Burger - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Stewart v. United States, 366 U.S. 1 (1961). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9447229 ## Opinion text FAHY, Circuit Judge, with whom EDGERTON, BAZELON and WASHINGTON, Circuit Judges, join, (dissenting). Although the case has previously been before us twice, Stewart v. United States, 94 U.S.App.D.C. 293 , 214 F.2d 879 , and Stewart v. United States, 101 U.S.App. D.C. 51, 247 F.2d 42 , the judgment of death by electrocution no less now than before calls upon us to examine the record with the utmost care to determine whether or not there is serious error. There is I think serious error in the respect now to be explained. Defendant had not testified on either of his two trials which preceded the one now under review, but he did testify on this trial. His behavior on the witness stand was probably calculated to support his defense of insanity. In the conclusion of his cross-examination by the prosecution the following occurred : “Q: Willie, you were tried on two other occasions. A: Well, I don’t care how many occasions, how many case — you say case. I was a ease man once in a time. “Q: This is the first time you have gone on the stand, isn’t it Willie? A: What? “Q: This is the first time you have gone on the stand, isn’t it, Willie?” Defendant’s counsel immediately moved for a mistrial because of this reference to defendant’s failure to testify before, a reference which counsel characterized as highly prejudicial. The motion was denied. Counsel subsequently renewed this motion at the conclusion of all the evidence, and also made the prosecutor’s reference a basis on which he moved for a new trial. 1 Unless the decision of the Supreme Court in Raffel v. United States, 271 U. S. 494 , 46 S.Ct. 566 , 70 L.Ed. 1054 , permitted this comment the ruling of the trial court was error. The failure of an accused to testify creates no presumption against him, and in aid of preventing such presumption from arising the rule is that the prosecution may not comment upon the exercise by an accused of his right not to testify. Johnson v. United States, 318 U.S. 189 , 63 S.Ct. 549 , 87 L.Ed. 704 ; Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 ; Wilson v. United States, 149 U.S. 60 , 13 S.Ct. 765 , 37 L.Ed. 650 ; Milton v. United States, 71 App.D.C. 394 , 110 F.2d 556 . We note in the first place that though it included a question, the incident also included a statement that defendant had failed to testify on previous trials, and a clearly implied hostile comment on that failure. The comment had no relevance or materiality whatsoever to any issue of fact bearing directly upon the question of defendant’s guilt or innocence, including of course the question of his sanity. Therefore, unless under the Raifel decision it bore on his credibility, it had no place in the case and violated the rule to which we have referred. In Raifel the Supreme Court held that when on a second trial the accused took the stand and denied making a statement attributed to him by a prosecution witness, which he had not denied making on a previous trial at which he had not offered himself as a witness, he could be *627 cross-examined so as to disclose his failure to testify at the first trial and why he had not done so. In passing upon that precise situation the Court said that when one waives his immunity by taking the stand, as Raffel had done on his second trial, he may not resume the immunity at will when cross-examination becomes inconvenient or embarrassing. The Court pointed out that the cross-examining questions must be relevant, and the Court conceded, without deciding, that if the defendant had not taken the stand on the second trial evidence that be had claimed immunity on the first trial would not be probative of any fact in issue and would be inadmissible. The Court held, nevertheless, that the questions asked Raffel when he took the stand on the second trial were relevant and competent because they bore upon his credibility. The Court explained this by pointing out that a witness who upon direct examination denies making statements relevant to an issue may be cross-examined with respect to conduct on his part inconsistent with such denial. The Raffel decision was analyzed by the Supreme Court in Grunewald v. United States, 353 U.S. 391 , 77 S.Ct. 963 , 1 L.Ed.2d 931 . There the Court held that Raffel should not be read either (1) as dispensing with the need for preliminary scrutiny by the trial judge as to whether an earlier exercise of the Fifth Amendment privilege, in Grünewald before a grand jury, involved such inconsistency with defendant Halperin’s later trial testimony as to permit the claim of the privilege to be used against him for impeachment purposes, or (2) as establishing as a matter of law that the prior claim of privilege with reference to a question asked at his later trial is always to be deemed a prior inconsistency. On the contrary, the Court described the holding in Raffel to be “that a defendant’s failure to take the stand at his first trial to deny testimony as to an incriminating admission could be used on cross-examination at the second trial, where he did take the stand, to impugn the credibility of his denial of the same admission.” 353 U.S. at page 418 , 77 S.Ct. at page 981 . The prior claim of privilege by Halperin was considered by the Court not to be inconsistent with testimony he later gave on his trial. Therefore, the Court held, Raffel did not authorize examination of Halperin as to his assertion of privilege before the grand jury. At least, the Court said, the probative value of such an inquiry on the issue of credibility was so negligible as to be outweighed by its possible, and impermissible, impact on the jury. The Court thereupon said it was not faced with the necessity either of deciding whether Raffel had been stripped of vitality by Johnson v. United States, supra, or of otherwise re-examining Raffel. Mr. Justice Black, with the concurrence of the Chief Justice, Mr. Justice Douglas, and Mr. Justice Brennan, expressed the view that Raffel “should be explicitly overruled.” 353 U.S. at page 426 , 77 S.Ct. at page 985 . In our case the government does not even contend that the defendant’s failure to take the stand on earlier trials was inconsistent with any particular testimony he gave on this trial. The government suggests that the defendant’s “endeavor at the latest trial to manifest a disordered mind” was inconsistent with his “past abstention from taking the witness stand.” The prosecutor made no such suggestion to the jury, and I see no basis for such a suggestion. The only function of the prosecutor’s remark was to bring home to the jury that the defendant had previously availed himself of his privilege, and to suggest to the jury the inference that he would not have done this if he had not been sane and guilty. He was entitled to exercise his privilege without being subjected, either then or later, to such a suggestion. Nor does anything in the record suggest that the question was prefatory in nature. The prosecutor’s inquiry was a parting and final shot not prefatory to further inquiry. Even were it possible to construe the comment as a reference to earlier “de *628 meanor” inconsistent with defendant’s later demeanor in testifying on this trial, to permit the comment would destroy the rule to which the Raffel credibility doctrine is a limited exception. Raffel involved prior conduct inconsistent with a particular item of Raffel’s later testimony, not an inconsistency between testifying and not testifying. I think the prosecutor could not under the applicable rule suggest to the jury, as the majority seems to say was done, that unless defendant were sane and, therefore, guilty, he would have testified at his previous trials and would not now be so conducting himself on the stand as to try to convince the jury he was insane. This is the sort of comment upon a failure to testify which I think is prohibited because it would seriously impair the privilege. When the defendant chose to testify, and thereby waived his immunity to cross-examination, the v/aiver extended only to relevant matters. His failure to testify on his previous trials does not qualify under that standard. Accordingly, the prosecutor’s comment was prejudicial without being competent. It did not bear, or even purport to bear, on the defendant’s credibility. Even if it had been relevant in some vague way to credibility, it would still have been inadmissible under Grünewald, because, especially in a capital case such as this, any possible probative value of the comment would have been far outweighed by its very probable, and entirely impermissible, impact on the jury. See Grünewald v. United States, supra, 353 U.S. at pages 420 and 424, 77 S.Ct. at pages 982 and 984. 2 Since a majority of the court affirm the judgment of conviction I do not pass upon the question whether the prosecution sustained the burden of proving beyond a reasonable doubt that defendant was sane at the time of the homicide — a question I would be required to decide were the conviction set aside and the case remanded. Silence on the issue of sanity is not to be construed as agreement with the majority position in that regard. I would reverse and remand for a new trial. . The majority opinion points out in a footnote that defense counsel brought out that defendant had been tried previously. The suggestion that this meets the defense objection is a non sequitur; for the objection was not to development of the fact of previous trials but development of the fact that defendant had availed himself at the previous trials of his privilege not to testify. . In Raffel the accused was charged with conspiracy to violate the National Prohibition Act, Oomp.St.Ann.Supp.1923, § 10138% et seq. Moreover, the questioning about Raffel’s failure to testify at his first trial was by the court, not by the prosecuting attorney. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9447229. Public record. Not legal advice.