United States v. William Curtis, III

WEIS, Circuit Judge,

dissenting.

The majority reverses because the prosecutor commented to the jury about, and was permitted to question the defendant on, his failure to claim entrapment when he was in custody for about two hours after his arrest. I do not agree that these actions were impermissible under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), or United States v. Hale, 422 U.S. 171 , 95 S.Ct. 2133 , 45 L.Ed.2d 99 (1975).

In Hale , the Court ruled, as a matter of federal evidence, that postarrest silence is ambiguous. In exercising its supervisory function, the Court concluded that prejudice to the defendant outweighs the probative value of the evidence and requires its exclusion. The following term, in Doyle , *272 the Court held that cross-examination of the defendant about his failure to speak after being given Miranda warnings violates due process. The Court concluded that Miranda warnings create an implicit assurance that silence will not be invoked against the accused. 1

Rather than being a Hale or Doyle situation, this case is controlled by Anderson v. Charles, 447 U.S. 404 , 100 S.Ct. 2180 , 65 L.Ed.2d 222 (1980). There, the Court held that when an accused does speak to the police following his arrest, “[a]s to the subject matter of his statements, the defendant has not remained silent at all.” 447 U.S. at 408 , 100 S.Ct. at 2182 , citing United States v. Agee, 597 F.2d 350, 354-56 (3d Cir.) (in banc), cert. denied, 442 U.S. 944 , 99 S.Ct. 2889 , 61 L.Ed.2d 315 (1979).

In Anderson , the defendant was queried about inconsistent statements and his “ ‘failure to tell arresting officers the same story he told the jury.’ ” 447 U.S. at 408 , 100 S.Ct. at 2182 . Concluding that this line of cross-examination cannot be neatly bifurcated to permit the former but forbid the latter, the Court said:

“Each of two inconsistent descriptions of events may be said to involve ‘silence’ insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of ‘silence,’ and we find no reason to adopt such a view in this case.”

Id.

Unlike the defendants in Hale and Doyle , and like the defendant in Anderson , the accused here did not maintain silence about the facts of the crime. Thus, Hale and Doyle do not apply. United States v. Agee, supra at 354-57. On cross-examination, the defendant testified that after his arrest he talked with the officers while he was in the police car. He admitted telling them “there was going to be $1,000 made [on the transaction].”

Although it is possible to reconcile this statement with the defendant’s testimony that he was going to give the $1,000 to the person who allegedly had threatened him, that argument would be for the jury. It is enough under Anderson that this version is arguably inconsistent with the defendant’s statement at trial that he was forced into the drug transaction. Consequently, the cross-examination on the defendant’s inconsistent statements and his failure to relate the entire story to the arresting officers was permissible, 2 and absent other circumstances, a proper subject for comment to the jury. 3

I agree with my colleagues that the prosecutor should not have referred to this matter in the face of a direct order from the trial judge to avoid the subject. Such conduct by trial counsel cannot be condoned. Nevertheless, because the evidence was legally admissible, I do not believe that the grant of a new trial is an appropriate remedy. The conviction is supported by substantial evidence and should stand.

Although the majority and I agree that the cross-examination of the character witnesses does not warrant reversal, we approach our conclusions by a different route. The majority finds objectionable, but harmless, cross-examination of reputation witnesses on their own opinion of the accused. I would hold inquiry of this nature to be within the sound discretion _ of the trial judge. As we said in Government of Virgin Islands v. Petersen, 553 F.2d 324 (3d Cir. 1977), Federal Rule of Evidence 405, which *273 allows cross-examination of witnesses on specific instances of conduct, “reflects the reality that reputation evidence has been largely opinion in disguise.” Id. at 328 . See Advisory Committee Notes, Fed.R.Evid. 405; D. Louisell & C. Mueller, Federal Evidence § 149 (1978 & Supp.1980).

A defendant who wishes to produce evidence of good character generally seeks persons of high standing in the community. Obviously, this is not because these people better survey community reaction, but rather because their appearance on the witness stand is an implicit personal endorsement of what the accused’s “reputation” is said to be. Otherwise the most valuable person as a character witness would be a public opinion pollster. As it is, people who are popular figures in the area, hold high office, or are otherwise held in esteem are asked to appear. Recognition of this fact may also be found in the canon of judicial conduct that discourages judges from appearing voluntarily as character witnesses. See ABA Code of Judicial Conduct, Canon 2 B. It is likely, and intended, that a jury will infer from reputation testimony that the witness personally shares in the community’s regard of the defendant.

It is this tacit, individual vouching that makes character witness testimony valuable to defendants, and probably is the reason for its survival, albeit under the guise of reputation evidence. Federal Rule of Evidence 405 simply recognizes a fact of litigation life in allowing a witness to express his opinion on character. Permitting cross-examination on the personal views of the witness strips away some of the fiction fostered by rigid, formalistic rules of evidence. Indeed, allowing individual attestation is not a new development in the law, but rather a return to ancient practice.

In evaluating the proper scope of cross-examination, much depends upon the discretion of the trial judge. As with all other cross-examination, the court must not lose sight of the possible prejudicial impact on the defendant of unfair questioning. In some circumstances, for example, hypothetical questions to a character witness can be improper. See United States v. Morgan, 554 F.2d 31, 33-34 (2d Cir.), cert. denied, 434 U.S. 965 , 98 S.Ct. 504 , 54 L.Ed.2d 450 (1977).

In this case, cross-examination of the reputation witnesses about the defendant’s admission of trafficking in drugs revealed nothing new to the jury and thus possessed no intrinsic prejudicial effect. Indeed, the questioning produced none of the detrimental effects associated with such facts as arrest and unrelated convictions that have been permitted in purported probing of the witness’s knowledge about defendant’s reputation. See Michelson v. United States, 335 U.S. 469, 479-83 , 69 S.Ct. 213, 220-22 , 93 L.Ed. 168 (1948). Moreover, I believe the cross-examination here furnished the jurors with information they could use to evaluate the worth of the character evidence. I therefore find no abuse of discretion.

Although it is true that generally the relevant reputation for being law-abiding is that existing contemporaneously with the commission of the criminal offense charged, United States v. Lewis, 482 F.2d 632 , 641— 44 (D.C.Cir.1973), the defense may nevertheless wish to establish repute as of a later time. Good community standing after charges have been publicized would be particularly helpful to the defendant. See 5 J. Wigmore, Evidence § 1618 (Chadbourn rev. 1974). If the defendant’s credibility is an issue, reputation for veracity at the time of trial would be relevant.

In the case at hand, defense counsel asked each character witness, “What is [the defendant’s] reputation” in the community for being peaceful and law-abiding? (Emphasis supplied.) No attempt was made to limit repute to the date of the offense or earlier in order to exclude such later events as knowledge of and publicity about the charges.

The prosecutor’s questions about community reaction to the defendant’s concession that he sold drugs, but had been entrapped, were therefore not beyond the scope of direct examination. Had direct been confined to some period before the trial, the *274 cross-examination might well have been improper, particularly if it were clear that the evidence solicited was not intended to impeach the defendant’s credibility as a witness. See United States v. Rispo, 470 F.2d 1099, 1102 (3d Cir. 1973).

In United States v. Null, 415 F.2d 1178 (4th Cir. 1969), the court found no reversible error when the prosecutor questioned character witnesses on whether the charges affected the defendant’s reputation. Recognizing that public discussion of pending accusations could adversely affect reputation, the court nevertheless found the cross-examination relevant because the defense had asked what the reputation “is." Id. at 1180 . I also observe that counsel never voiced any objection on the ground that the character evidence was confined to the time the sales took place. Therefore, insofar as the time of reputation is implicated, the testimony was admissible.

I conclude that the cross-examination of the character witnesses and the defendant was not improper and, further that the prosecutor’s comment to the jury does not warrant a new trial. Accordingly, I would affirm the judgment of the district court.

. In the case at hand, the record does not show when, or if, Miranda warnings were given. The defendant does not claim error in this respect, so I shall assume they were properly given immediately after the arrest and before the defendant said anything. Cf. Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (reference to prearrest silence permissible). Since he spoke freely with the police following his arrest, there is a strong argument that he did not rely on the Miranda warnings. See North Carolina v. Butler, 441 U.S. 368 , 374-75, 99 S.Ct. 1755, 1758 , 60 L.Ed.2d 286 (1979).

. See The Supreme Court, 1979 Term, 94 Harv. L.Rev. 77, 77-87 (1980).

. Anderson v. Charles, supra, was not decided until after the trial of this case, and consequently, the district judge did not have the benefit of that opinion.