concluding that defen- dant’s trial was rendered fundamentally unfair by introduction of prior record
How later courts described this case
- concluding that defen- dant’s trial was rendered fundamentally unfair by introduction of prior record
Written by the judges who cited it.
Later courts went against this
Abrogated by Spencer v. Texas, 385 U.S. 554 (1966)
to constitutional attack”); Collins v. Scully, 755 F.2d 16, 18 (2d Cir.1985) (“In order to prevail on a claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial.”) (citing United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); United States v. Banmiller, 3…
Distinguished
Distinguished by Holliday v. Adams, 325 F. Supp. 444 (1970)
Scoleri v. Banmiller, supra, is distinguishable and the distinction was explained to the jury in the trial judge’s instructions.
Distinguished by United States ex rel. Lowry v. Myers, 364 F.2d 297 (1966)
The Commonwealth urges that Scoleri is inapplicable because the prior convictions admitted in evidence there were more serious in nature and greater in number.
The opinion
HASTIE, Circuit Judge
(dissenting).
Concurring specially in United States ex rel. Thompson v. Price, 3 Cir., 1958, 258 F.2d 918, 922 , I expressed the view that, but for the defendant’s acquiescence, it would have been gravely unfair to permit the introduction of his prior criminal record during the course of his trial and before the determination of guilt or innocence, since the only legitimate function of that evidence, guidance in the imposition of sentence, could as well have been achieved by its introduction after guilt had been determined. This case presents the same basic question.
It is true, as Judge KALODNER points out in his dissent here, that there are various situations in which courts have admitted evidence during a criminal' trial which has both a legitimate function and a probable prejudicial effect. But in those eases, in order to get before the jurors certain information which they should have, it was necessary to risk the prejudice which this information might create. What makes the present case different is the fact that there was an easy, simple and obvious way of achieving the legitimate effect of the evidence of prior convictions without subjecting the defendant to its prejudicial effect on the issue of guilt or innocence. It seemed to me in the Thompson case and it seems to me now that it is unfair for a state to employ a seriously prejudicial procedure when an obviously satisfactory non-prejudicial alternative is available.
However, there is one line of cases, which did not have to be considered in the Thompson appeal because of the defendant’s acquiescence, which must be considered here. This is the line of Supreme Court decisions sustaining habitual offender statutes. Under some of those statutes, the procedure has been to present evidence of prior convictions to the jury along with the evidence of the alleged new offense. In other cases, evidence of prior crime has not been introduced until after conviction. The significant thing is that the Supreme Court *735 has sanctioned both procedures with no indication that the prejudice inherent in one amounts to a constitutional defect. Graham v. West Virginia, 1912, 224 U. S. 616 , 32 S.Ct. 583 , 56 L.Ed. 917 ; McDonald v. Massachusetts, 1901, 180 U.S. 311 , 21 S.Ct. 389 , 45 L.Ed. 542 ; Moore v. Missouri, 1895, 159 U.S. 673 , 16 S.Ct. 179 , 40 L.Ed. 301 . More recently, in Chandler v. Fretag, 1954, 348 U.S. 3 , 75 S.Ct. 1 , 99 L.Ed. 4 , the Supreme Court considered a conviction under the Tennessee habitual offender statute which contained the prejudicial feature of introducing the evidence of prior crimes before a determination whether the accused was guilty of the alleged new offense. The Court took note that the determination of prior convictions and the trial on the new offense “may be conducted in a single proceeding” before the trial jury. 348 U.S. at 8 , 75 S.Ct. at 4 . While the contested issue on that appeal was an alleged denial of the right to counsel, the presently significant fact is that the Court ordered a new trial to be conducted under the Tennessee procedure of submitting evidence of pri- or convictions to the jury during the course of the trial.
The prejudice involved in the procedure under such habitual offender statutes and the obvious availability of a non-prejudicial alternative are as clear and as serious as the avoidable prejudice to which Scoleri has been subjected. So long as the Supreme Court sanctions the one procedure it seems to me that an inferior court is not justified in holding the other unconstitutional. We are faced with the always difficult question whether undesirable state practice is so bad as to be intolerable. I am constrained to follow the teaching of the Supreme Court in the habitual offender cases that such an undesirable practice as we have here is tolerable although, without that guidance, I would be disposed to reach the opposite conclusion.
The majority opinion distinguishes the Supreme Court cases upholding the habitual offender statutes on the ground that conviction under those statutes merely results in very long terms of imprisonment, life imprisonment in many cases, while Scoleri has been sentenced to death. I do not believe that the habitual offender cases turn upon this distinction between death and long term imprisonment. However, it is true that such cases as Betts v. Brady, 1942, 316 U.S. 455 , 62 S.Ct. 1252 , 86 L.Ed. 1595 , indicate that the Supreme Court is less reluctant to condemn state procedure as a denial of due process when human life is at stake than when imprisonment only is involved. But I can find nothing in the habitual offender cases that in any way suggests a judicial conclusion that the procedure in question was disturbingly unfair, but not quite unfair enough to warrant federal interference with the state conviction because the litigation did not involve a death penalty. Bather, the Court seems to have felt that the use of prior conviction evidence during the trial of the issue of guilt or innocence was not the sort of extreme unfairness which could in any case amount to denial of due process of law. Moreover, underlying the Betts v. Brady line of cases on the right of indigents to counsel is the consideration that the providing of suitable professional representation for every indigent person accused of a non-capital crime does involve practical difficulties and would impose a great burden upon the bar. No such consideration is involved here. For these reasons, I am not persuaded by the undertaking of the majority to distinguish the habitual offender cases.
Finally, I do not agree with Judge KALODNER’s view that Scoleri “waived” his objection to the introduction of his criminal record. That argument is based upon references made to the defendant’s earlier crimes during the course of his defense after the elaborate and prejudicial criminal record had been introduced in evidence, over strenuous objection, during the course of the government’s case in chief. I can find neither reason nor justice in a ruling which would give such detrimental effect to the defendant’s effort to make the best of a *736 bad situation after it had been created over his objection. My dissent is based solely upon my judgment that the habitual offender cases control the constitutional issue in this case.
On Petition for Rehearing and on Petition for Leave to Intervene Amicus Curiae and to File a Praecipe for Appearance.
Before BIGGS, Chief Judge, and Mc-LAUGHLIN, KALODNER, STALEY, HASTIE, GANEY, and SMITH, Circuit Judges.
PER CURIAM.
In view of the petition for rehearing we must re-emphasize the principles inhering in our decision. The Commonwealth introduced into the record in its case in chief, as we have stated, Scoleri’s twenty-five prior unrelated convictions of, or pleas of guilty to, charges of robbery with violence. The admission of this evidence was duly objected to on constitutional grounds. The issue of Scol-eri’s guilt as well as the penalty to be imposed on him were both before the jury for determination. Scoleri’s defense was an alibi and he attempted to prove that witnesses who testified that he was at the scene of the crime had made a mistake in identification. In short, the issue of identification was vital. On this state of facts we held that the introduction into evidence of the twenty-five prior unrelated convictions of, or pleas of guilty to, charges of robbery with violence were so prejudicial, so unfair, as to constitute a denial of due process of law to Seoleri.
We have stated the foregoing to make it clear that every case which involves the. delicate balance of comity between the courts of a state and those of the federal system must be considered and decided on its own precise facts. In the case at bar we did not lay down a rule of evidence for the Pennsylvania State tribunals. We handed down a judgment as to the fundamental fairness or unfairness of what was done in this particular case.
As to the contention that this court was evenly divided in opinion and that therefore the decision of the court below must stand, we will state the following. An expression of a point of view by a member of this court at conference is tentative. The vote of a member of this court on the disposition of an appeal occurs after the proposed opinion of the court is circulated and does not become effective until the opinion of the court is filed. Judge Goodrich died before the circulation of the opinion in this case and therefore did not vote.
In the light of all the circumstances we can perceive no valid reason for permitting the President of the District Attorneys Association of Pennsylvania to intervene amicus curiae and to file a praecipe for appearance even though we assume, without deciding, that the Association’s President possesses locus standii in the instant proceeding.
The petitions will be denied.