Johnson v. United States

KELLY, Associate Judge,

dissenting, with whom MACK, Associate Judge, joins:

We can agree that it is a rare case in which this court has not followed the settled rule that an unobjected to error will not be noticed on appeal. But if the doctrine of plain error is ever to apply, I suggest that it must be applied here.

Government testimony at the trial described the details of a robbery, the stopping of a car driven by appellant shortly after the incident and the failure of the complaining witness to identify appellant as one of the robbers. A codefendant, Harry Allen, gave testimony exculpatory of appellant by denying that appellant had partici *1090 pated in the robbery. He stated, as the majority notes, that throughout the robbery and its immediate aftermath appellant had been incapacitated by the effects of narcotics withdrawal and oblivious to the fact that a robbery had occurred. The witness was impeached in rebuttal with a contrary statement he had given after his arrest in which he implicated appellant in the robbery. The statement used to impeach Allen effectively controverted appellant’s sole defense to the crime and, in the absence of an immediate instruction on its limited admissibility, was most certainly viewed by the jury as substantive evidence of appellant’s guilt. 1 In my judgment, the failure to give the cautionary instruction as to the only direct evidence implicating appellant in the crime was plain error necessitating reversal of appellant’s conviction. See generally United States v. Freeman, 169 U.S.App.D.C. 73 , 514 F.2d 1314 (1975); United States v. Leonard, 161 U.S.App.D.C. 36 , 494 F.2d 955 (1974); Jones v. United States, 128 U.S.App.D.C. 36, 40 , 385 F.2d 296, 300 (1967); Coleman v. United States, 125 U.S.App.D.C. 246 , 371 F.2d 343 (1966), cert. denied, 386 U.S. 945 , 87 S.Ct. 979 , 17 L.Ed.2d 875 (1967).

In the division opinion, citing Dixon v. United States, 2 we acknowledged that generally where a party fails to request an instruction on limited admissibility of evidence, the failure of the trial judge to give such an instruction, sua sponte, will not be considered on appeal. 3 We recognized as well, however, that there are occasions where the potential for jury confusion is so great in admitting prior inconsistent statements for a limited purpose that an immediate cautionary instruction is required. 4 This is such a case.

Underlying the requirement that an immediate limiting instruction be given is the policy of restricting the jury’s exposure to hearsay evidence. Jones v. United States, supra. See also United States v. Leonard, supra. As hearsay, codefendant Allen’s pri- or inconsistent statement could not have properly been considered by the jury for the truth it stated. It could be considered as proving simply that the statement had been made since the mere fact that a witness has made a contradictory statement is relevant to an evaluation of credibility. It is apparent, however, that in reaching its verdict the jury credited Allen’s statement as substantive evidence of what had transpired in the robbery and that it was encouraged to do so by the prosecutor who, in closing argument, improperly emphasized the statement in a way which indicated that it could be so viewed. Considered as substantive evidence, Allen’s prior inconsistent statement effectively controverted appellant’s sole defense of nonparticipation in the crime.

There was no objection by counsel to the use of the prior inconsistent statement and no request for an immediate instruction. It is not helpful, however, to inject into the analysis of our problem gratuitous remarks about shrewd counsel sowing error in the record for what is in issue here is the fairness of the trial itself, not the dereliction of counsel. Moreover, the trial court is not without responsibility to guard against the injection into the trial of prejudicial error at the moment that possibility arises. 5 Be *1091 cause of that grave danger here, the trial judge should have been alert to avert the error and could have easily done so.

The majority has now disavowed, at least in part, this court's opinion in Lofty v. United States, D.C.App., 277 A.2d 99 (1971). Lofty was not dispositive of the instant case, however. We speak here not of government surprise by unexpected testimony of its own witness but of jury confusion occasioned by the unexplained use of a prior inconsistent statement. It is true that the same vice — the likelihood that the jury will consider the statement as substantive evidence rather than a limited attack on credibility — is present in both situations, but Dixon teaches that each case is to be decided on its own unique facts. Dixon v. United States, supra at 98. The majority does not explain why there should be a difference between the impeachment of one’s own witness and impeachment of a defense witness. Indeed, there is none. Jones v. United States, supra, 128 U.S.App.D.C. at 40 , 385 F.2d at 300 . Regardless of whose witness is being impeached, it is unrealistic to assume that jurors hearing testimony of a prior inconsistent statement would consider that statement as anything but substantive evidence unless they were instructed otherwise.

I close, as I began, by noting again that appellate courts do not readily grant relief under the plain error rule. Yet not to do so under the facts of this case is to ignore prejudicial error affecting substantial rights and the essential fairness of appellant’s trial. I would reverse appellant’s conviction and remand for a new trial.

. The en banc majority seemingly considers this central issue in the case of little importance.

. D.C.App., 287 A.2d 89, 98 , cert. denied, 407 U.S. 926 , 92 S.Ct. 2474 , 32 L.Ed.2d 813 (1972).

. Johnson v. United States, D.C.App., 356 A.2d 639, 641 (1976).

. Id.

. The desirability of implanting this thought in the minds of the jury at this juncture is emphasized by the fact that the charging of the jury by the judge comes after the closing arguments. There is always the possibility that the prosecutor, by accident if not by design, will be imprecise in his characterizations of the impeaching statements. Unless there has been a warning at the time the statements come in, the jury will have no intimation that it should treat the statements differently from other evidence. To be told this by the court for the first time after the prosecutor’s argument may, as a practical matter, be too late. Even in the absence of comment by the prosecutor, in a trial of any length several days may elapse between impeachment and the final charge. During this interval, a jury may erroneously reflect upon the impeachment testimony as if it were direct *1091 evidence. Jurors are not supposed to crystallize their views of the case until they withdraw to deliberate, but they cannot be supposed to be listening to testimony in an intellectual vacuum. Having the jury aware of the true status of the impeaching statement throughout this period avoids this possible prejudice. Of course, a final instruction is always important as a reminder of the original caution. [Coleman v. United States, supra, 125 U.S.App.D.C. at 249, n. 3, 371 F.2d at 346 n. 3.]