# Dorman v. United States

> District of Columbia Court of Appeals · April 25, 1985 · 491 A.2d 455

URL: https://www.frixlaw.com/law-library/cases/9747333

## Case

- **Full name:** Lawrence M. DORMAN, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** April 25, 1985
- **Citations:** 491 A.2d 455; 1984 D.C. App. LEXIS 587
- **Precedential status:** Published
- **Opinion:** Concurrence by Pryor
- **Judges:** Pryor, Nebeker, MacK, Newman, Ferren, Belson, Rogers, Gallagher, Kern
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747333

## How later opinions describe it (automated extraction)

- finding improper comments harmless where there was overwhelming evidence of guilt
- noting that the trial court properly instructed the jury three times

## Opinion text

PRYOR, Chief Judge.
I concur in the result reached in the majority opinion. Applying the same test that the majority employs, I do not think the trial court committed any error in the handling of impeachment questions and thus do not reach the issue of plain error.
NEBEKER, Associate Judge, concurring in the result and dissenting from the rationale.
After the Luck 1 decision, Congress expressly overturned it, and impeachment by prior conviction, under some strictures, was *465 declared permissible. D.C.Code § 14-305 (1981). With Henry 2 and Carter, 3 the trouble began again. 4 Por too long this court has, on a case-by-case basis, struggled with such impeachment issues. We have taken disparate views on what constitutes improper timing of conviction impeachment, and to a large extent our decisions have depended upon panel composition. When we undertook to consider this troublesome issue en banc, it was to be expected that a rule could be announced which would end the need for case-by-case review. I submit that despite earnest and well-intentioned effort, we have failed completely in this endeavor.
The majority holding of error in this case is not from the fact of conviction impeachment but in the failure of the cross-examiner to obscure or divert focus on the important aspects of the offense before asking the impeachment questions. Thus, in the future the issue before us will be whether the diversion was good enough — another subjective review choice no doubt depending on panel composition. We have virtually guaranteed an appeal presenting the issue in every conviction where such impeachment occurs. See Evitts v. Lucey, — U.S. —, 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985) (due process guarantees effective assistance of counsel on appeal). Moreover, the analysis in briefs and our decision will have to be detailed and protracted. We are burdened enough with our calendar. Now we figuratively shoot ourselves in the foot.
Indeed, very able counsel for a convicted appellant in a recent argument in another case presenting this issue 5 quite prophetically called such juxtapositional impeachment “medieval metaphysics” and urged us not to engage in such “fruitless” analysis. He asked for a “bright line” rule permitting case fact cross-examination or conviction impeachment but not both. Given our decision in this case, I find the proposal to have the trial judges tell the jury of previous convictions to be most attractive. {See majority opinion at 458, note 1.) We do not preclude that course; we refuse to require it. I encourage it.
I disagree as to the wisdom and legal basis for the law set out by the majority. I also take issue with the conclusion reached when this law is applied to the facts in this case.
There is nothing wrong with the type of impeachment present in this case. Congress has provided for it and intended that it be done. It, like all relevant evidence, is prejudicial (i.e., hurtful to credibility) and properly so. Since the dawn of prior conviction impeachment, Congress has determined that the inescapable propensity prejudice, cured by an immediate instruction, is outweighed by credibility probativeness. The former has never been held to deny due process, despite the majority’s hint that the source of our authority to limit conviction impeachment is the due process clause (majority opinion at 461-462, note 7).
*466 At common law, parties to a judicial proceeding were deemed incompetent to testify at that proceeding, and a witness could be impeached by a prior conviction only if he had been convicted of an infamous crime involving moral turpitude. Campbell v. United States, 85 U.S.App.D.C. 133, 134 , 176 F.2d 45, 46 (1949). At least as early as 1874, Congress removed the incompetency status regarding interested parties as it applied in the District of Columbia. 25 Stat. 876 (1873-74). At least by 1902 congressional action made clear that such impeachment was permissible, without regard to the juxtapositional-sequential quagmire in which we now find ourselves. 31 Stat. 1357 (1901); 32 Stat. 540 (1902). The 1970 Court Reorganization Act similarly did not change this legislative command. 6 The limits the court now places on impeachment by prior conviction not only lack basis in the legislative history of either D.C.Code § 14-305 (1981) or its predecessors but also are precluded. With the “Luck correction” in 1970, Congress may fairly be said to have barred further judicial tampering with conviction impeachment.
An analysis of the court’s “clarification” 7 of the case law reveals an inherent fallacy. The majority holds that if prior conviction impeachment “implies” criminal propensity there is error. (Majority opinion at 460-461 & 464.) It suggests that there may be an error-free way to do it. (Majority opinion at 459-460, notes 2 & 3.) Yet it says, “[e]ven if a prosecutor is scrupulously careful in bringing out a defendant’s previous convictions, some prejudice to the defendant is unavoidable.” (Majority opinion at 462.) By “prejudice” the majority means propensity prejudice. If prejudice by conviction impeachment is unavoidable, then error always accompanies such impeachment, and we and the trial court are left only with a plain error-harmless error question. I suggest that the majority, despite its professed respect for § 14-305, has overruled the statute and the congressional will behind it. As our federal circuit court has said:
A rule disallowing such conviction evidence would enable an accused to appear as a person whose character entitled him to complete credence, when the facts of his life are to the contrary. Excluding such evidence would also deny a valuable argument to the witness accused who has no prior record.
United States v. Simpson, 144 U.S.App.D.C. 259 , 261, 445 F.2d 735, 737 (1970). I thus concur with Judge Gallagher, particularly with his Baptist-Dorman I 8 approach.
What the majority seems to say is that prior conviction impeachment must be mixed or sandwiched with oblique and less than central cross-examination. It hints that the insulating cross-examination cannot be aimed at the jugular but must be somewhat short of the mark. The majority now requires a skill in partial relevance or diversionary questioning. Thus the majority’s view that only the two questions immediately preceding the prior conviction im *467 peachment were improper draws an unpersuasive, hair-splitting distinction.
Given the rule that conviction impeachment must be buffered when the dreaded question is asked, one might fairly wonder what duty the cross-examiner has at closing argument. Must he deviate to less telling, perhaps boring, argument before he reminds the jury that the defendant is unworthy of their belief because of his earlier conviction? But look what we have said about that! In Ford v. United States, 487 A.2d 580 (D.C.1984), the prosecutor, in closing argument, reminded the jury that “[hjere’s a man on trial for first degree murder who twice has been convicted of first degree murder....” Id. at 591 . At the same time, he warned the jury not to infer “that because he did those, he did these.” Id. In noting that “the prosecutor skirted danger here,” id. at 592 , this court went on to find no error. How can it be that there is error in not diluting the context of the questioning but no error to argue, in effect: here is a man charged with the very offense for which he has twice been convicted. I concurred in the “no error” holding in Ford . Perforce there is no error here.
It is also fair to observe that this may be a rule of unequal application. Though the statute also permits government witnesses to be impeached with convictions, it may be effectively impossible to control such defense impeachment. If improperly done, a mistrial is a highly impractical, dangerous remedy 9 and, of course, an acquittal bars correction on appeal. Nonetheless, given our holding, the trial court is duty bound to enforce it on conviction impeachment of prosecution witnesses and defense counsel would be well advised to conform. Necessarily, both sides are entitled to a fair trial. United States v. Stevenson, 138 U.S.App.D.C. 10, 14 , 424 F.2d 923, 927 (1970).
Were I to subscribe to the majority’s position that the “blow” resulting from conviction impeachment questions must be softened, I would strive for greater consistency in justifying that rule. The court hints — if not outright says — that it may dictate this laminated approach under the due process requirement of fair trial. Yet it applies the non-constitutional harmless error test 10 once it decides that impeachment error — perforce constitutional error— has occurred. Indeed, the majority sees no difference between the plain error and harmless error tests (majority opinion at 464). Thus, the test is the same, with or without an objection. Significantly, in United States v. Young, — U.S. —, 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), the Supreme Court has recently articulated the test for plain error in federal courts, which include the District of Columbia Court system. See D.C.Code §§ 11-721(e) and 11-946 (1981). To be plain error, the error identified must undermine the fundamental fairness of the trial and contribute to a miscarriage of justice. 105 S.Ct. at 1047. It must be “particularly egregious.” Id. 105 S.Ct. at 1046, citing United States v. Frady, 456 U.S. 152, 163 , 102 S.Ct. 1584, 1592 , 71 L.Ed.2d 816 (1982).
There is no need to constitutionalize this issue. If the court insists on perpetuating ad hoc review of conviction impeachment, in the face of a reasonably clear statutory proscription, it can do so by an exercise of supervisory authority over the administration of criminal justice. See United States v. Yates, 279 A.2d 516, 518 (D.C.1971). Then application of the harmless error rule would be consistent and freed of reasonable doubt review vagaries. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
The distinction between element and credibility questioning drawn by the majority is unpersuasive; the legislative history of § 14-305, if anything, pushes us away from limiting the manner of prior conviction impeachment as the majority does *468 here. The whole endeavor is impermissible and unwise.
Accordingly, I would hold that the conviction is free of impeachment error and affirm.
. Luck v. United States, 121 U.S.App.D.C. 151 , 348 F.2d 763 (1965).
. United States v. Henry, 174 U.S.App.D.C. 88 , 528 F.2d 661 (1976).
. United States v. Carter, 157 U.S.App.D.C. 149 , 482 F.2d 738 (1973).
. As to the underlying legal basis empowering this court to impose limits on impeachment pursuant to D.C.Code § 14-305 (1981), Bailey references Fields. Bailey v. United States, 447 A.2d 779 (D.C.1982). Fields references Henry and Carter. Fields v. United States, 396 A.2d 522 (D.C.1978). Neither Henry nor Carter reveals the legal basis upon which the court invades the statutory province of the cross-examiner. I must assume that the court has been exercising some sort of inherent supervisory power all these years, although to what end is unclear. Dixon v. United States, 287 A.2d 89, 92-96 (D.C.), cert. denied, 407 U.S. 926 , 92 S.Ct. 2474 , 32 L.Ed.2d 813 (1972) (§ 14-305 does not violate constitutional fair trial assurances). The use of prior conviction impeachment raises no constitutional question and despite the majority’s intimation to the contrary, this court would be well-advised not to muddy further the waters in this area. See Luce v. United States, — U.S. —, 105 S.Ct. 460, 464 , 83 L.Ed.2d 443 (1984) (observation that conviction impeachment under Fed.R.Evid. 609 is "a question not reaching constitutional dimensions”).
. Mayo v. United States, No. 83-527, argued March 15, 1985.
. In deliberating over the version of § 14-305 to be included in the Court Reorganization Act, Congress did not address the form or the timing of the introduction of the impeaching prior convictions. The legislative history of § 14-305 dealt almost exclusively with the merits of the Luck Doctrine. Fairly read, Congress’ rejection of the Luck Doctrine signalled the desire to remove from the arena of conviction impeachment the discretionary hand of the trial court and to leave intact the prerogative of the cross-examiner. Statement of the Managers on the Part of the Senate Submitted Regarding the Conference Action Upon S. 2601, The President’s Crime Legislation for the District of Columbia, prepared for the Senate Comm, on the District of Columbia, 91st Cong., 2d Sess. 24-25 (1970); H.R.Rep. No. 1303, 91st Cong., 2d Sess. 231 (1970); H.R.Rep. No. 907, 91st Cong., 2d Sess. 61-63 (1970); S.Rep. No. 538, 91st Cong., 2d Sess. 4-5 (1969). Accord Hill v. United States, 434 A.2d 422 , 429 n. 7 (D.C.1981), cert. denied, 454 U.S. 1151 , 102 S.Ct. 1020 , 71 L.Ed.2d 307 (1982).
. Majority opinion at 458, note 1.
. Baptist v. United States, 466 A.2d 452 (D.C.1983); Dorman v. United States, 460 A.2d 986 (D.C.1983) (vacated for rehearing en banc).
. E.g., Douglas v. United States, 488 A.2d 121 (D.C.1985).
. Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747333. Public record. Not legal advice.