Dorman v. United States

GALLAGHER, Associate Judge, Retired,

concurring in the result and dissenting, with whom NEBEKER, Associate Judge, and KERN, Associate Judge, Retired, join.

I concur only in the result reached in this case. I dissent from the far reaching holding that error was committed in the cross-examination of the defendant in relation to his prior convictions and from the enunciation of a new test. When the court went en banc in this case it assumedly was for the purpose of clarifying the law in this jurisdiction in the matter of the use of prior convictions to attack the credibility of a witness. I suspect the court has instead left the law in worse shape than it found it.

This is a case involving a theft of a radio where the court holds it is error for the government to ask of the defendant on cross-examination substantially the same questions the defense counsel asked the defendant on direct examination. In a deliberate trial tactic, defense counsel asked the defendant on direct examination about a prior conviction:

Q. Now, Mr. Dorman, have you previously been convicted of armed robbery in this jurisdiction?

A. Yes, sir, in ’73 I took a plea to armed robbery that I had committed in the District of Columbia.

Q. In 1973?

A. Yes, sir.

[DEFENSE COUNSEL]: Your Honor, at this time I would request a cautionary instruction for the jury.

THE COURT: Ladies and gentlemen, it is permitted under law that past offenses resulting in convictions can be brought to your attention. They are brought to your attention for one purpose and one purpose only, and that is to be considered in connection with the issue of credibility. They are to be viewed only in connection with that issue and are not to be thought of in any connection with whether or not the individual who is testifying to the past conviction is guilty or not guilty of the offense. Therefore, I caution you that as to any prior convictions that may come to your attention in connection with the defendant in this case, that can be considered only as to his truthtelling ability, and not as to whether or not he committed the offense in this case.

Is that instruction satisfactory?

[DEFENSE COUNSEL]: Thank you, Your Honor.

(Emphasis added.)

The testimony of the defendant in relation to the crime charged was far-fetched and the prosecutor conducted a terse, routine cross-examination of the defendant (4 pages of trial transcript). He asked questions going entirely to credibility concerning the theft of the radio, which actually happened in the presence of the officers, at the end of which the prosecutor terminated cross-examination by summarizing the entire testimony of the defendant and asking about the remaining three prior convictions:

Q. So you never touched the radio, is that right?

A. Yes, sir.

Q. You just walked up to it, looked at it, walked down two steps and you weren’t even touching it and all of these policemen arrested you for no reason at all, is that correct?

A. Yes, sir.

Q. Now Mr. Dorman, are you the same Lawrence Dorman that on December 21, 1973, was convicted of first degree burglary?

A. Yes, sir.

Q. And are you the same Lawrence Dorman that on the same date was convicted of attempted larceny?

A. Yes, sir.

Q. And are you the same Lawrence Dorman that on March 22, 1974, was *469 convicted of assault with a deadly weapon, a gun?

A. Yes, sir.

Q. And are you the same Lawrence Dorman that on November 9th, 1971, was convicted of carrying a dangerous weapon, a gun?

A. Yes, sir.

[THE PROSECUTOR]: I have no further questions, Your Honor.

As is evident, at the end the prosecutor asked the defendant the usual questions about three additional convictions omitted from the questions by defense counsel of the defendant on direct examination concerning one of his prior convictions (armed robbery). 1 Later, on redirect examination, the defendant another time himself brought up the question of his prior conviction.

This all seems routine enough. As a trial tactic, the defendant vol .ntarily laid bare a prior conviction of armed robbery. The reason this trial tactic is used by a defendant is that it is sometimes thought wiser by counsel for defendants to tell the bad news about themselves first rather than permit their opponents to do so, when it is known they are virtually certain to do it. It is referred to in defense circles as “pulling the teeth” of the government in the matter of a defendant’s prior convictions.

One different aspect about this case was that the defendant revealed only one prior conviction when actually he had four convictions. At the conclusion of his cross-examination, the prosecutor, without comment, inquired concerning the remaining three convictions and then terminated his very terse cross-examination, thus letting the defendant off light. As I say, it all seemed routine enough — but not so to this court. The majority proceeds to bring out the appellate microscope. True it is, there was a brief cross-examination directed to the defendant’s credibility, but, the majority says, what about those last two questions preceding the inquiries about prior convictions? He asked the defendant these two questions:

Q. So you never touched the radio, is that right?

A. Yes, sir.

Q. You just walked up to it, looked at it, walked down two steps and you weren’t even touching it and all of these policemen arrested you for no reason at all, is that correct?

A. Yes, sir.

Then came the questions about the prior convictions. The way the majority opinion in this en banc case goes about concluding there was error is rather interesting. The court offers this reasoning:

Although the last two questions before the previous conviction impeachment followed a series of questions directed generally to credibility, the two questions themselves were such that it was inappropriate to place them in juxtaposition with prior conviction impeachment. The first of them elicited appellant’s flat denial that he had “touched” the radio. While, strictly speaking, “taking” rather than “touching” is an element of larceny, see Criminal Jury Instructions for the District of Columbia, No. 4.55 (3d ed. 1978), we have grave doubts that the jury would distinguish between “taking” and “touching” when all the government’s evidence showed that appellant had picked up the radio and carried it away.

Majority op. at 464. So, what one would think is a perfunctory cross-examination which appears harmless enough now becomes error because, says the court, the jury “would naturally and necessarily have taken this particular sequence of questions and answers as implying that appellant, convicted in the past of burglary and attempted larceny, had stolen the radio. *470 Thus, the questioning constituted error.” Id. (emphasis added).

The way the court reasons to that conclusion of error is also interesting. The court finds no fault with the cross-examination of the defendant which it describes as “directed generally to credibility.” But, it is those last two questions before the prior conviction inquiry started that gives the court the difficulty. As I related earlier, those two questions are these:

Q. So you never touched the radio, is that right?

A. Yes, sir.

Q. You just walked up to it, looked at it, walked down two steps and you weren’t even touching it and all of these policemen arrested you for no reason at all, is that correct?

A. Yes, sir.

This is the court's reasoning on why error occurred with those two questions. First of all, says the court, the “juxtaposition with prior conviction impeachment” was wrong. The reason it was wrong is that the prosecutor “elicited appellant’s flat denial that he had ‘touched’ the radio.” We now come to delicate reasoning. The court says:

While, strictly speaking “taking” rather than “touching” is an element of larcen-cy, see Criminal Jury Instructions for the District of Columbia, No. 4.55 (3d ed. 1978), we have grave doubts that the jury would distinguish between “taking” and “touching” when all the government’s evidence showed that appellant had picked up the radio and carried it away.

Majority op. at 464. But as if that were not a bad enough thing for the prosecutor to do, the court clinches its findings of error with.

The second of the two questions preceding impeachment presented appellant with a summary of his account of the incident. He responded, predictably, with what was, in effect, a general denial of his guilt. Immediately thereafter, the prosecutor examined appellant on his previous convictions for burglary, attempted larceny, and other offenses.

Id. (emphasis added).

First of all, the court deals with the proposition that “taking” is the element of the larceny charged, not “touching” — the word used by the prosecutor. Then the court probes the collective mind of the jurors and surmises that the jury would not distinguish between “taking” and “touching” when the government’s evidence showed the defendant had picked up the radio and carried it away. Parenthetically, the jury had not yet been instructed by the court on the elements of larceny.

Having divined the collective mental reaction of the jury in that manner, there was still no clincher. So, the court proceeds to manufacture one, saying, “He responded predictably with what was, in effect, a general denial of guilt.” That denial was what could not properly be followed by a question about a prior conviction, says the court.

In reality, what happened was the prosecutor summarized the defendant’s entire rather incredible testimony — purely a credibility type of question — and when asked by the prosecutor if that was a correct summary of his testimony, the defendant affirmed that this was a correct statement of his testimony with a “Yes, sir.” Having ended the credibility attack, he was asked questions concerning his prior convictions. In a strained, unfair construction of this bit of colloquy, the court finds error.

In discussing the state of the law before this case came along, I will start with two often cited opinions on this question by the United States Circuit Court for this jurisdiction, United States v. Carter, 157 U.S.App.D.C. 149 , 482 F.2d 738 (1973) and United States v. Henry, 174 U.S.App.D.C. 88 , 528 F.2d 661 (1976), and continue with several decisions of this court.

We begin with Carter, supra. There, the circuit court began its discussion by quoting the Supreme Court on the use of prior crimes for limited purposes:

*471 Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent ... an element in the crime ... identity ... malice ... motive ... a system of criminal activity ... or when the defendant has raised the issue of his character ... or when the defendant has testified and the State seeks to impeach his credibility....

******

The defendants’ interests are protected by limiting instructions ... and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence.

Id. 157 U.S.App.D.C. at 150 , 482 F.2d at 739 (citing Spencer v. Texas, 385 U.S. 554, 560-61 , 87 S.Ct. 648, 651-52 , 17 L.Ed.2d 606 (1967); McGautha v. California, 402 U.S. 183, 215 , 91 S.Ct. 1454, 1471 , 28 L.Ed.2d 711 (1971)).

The court went on to restate the statutory rule (D.C.Code § 14-305(b) (1981)) that evidence of a prior conviction that qualifies under the statute shall be admitted for the purpose of attacking a defendant’s credibility. 2 But, quoting from Spencer v. Texas, supra, the court related:

Because of the possibility that the generality of the jury’s verdict might mask a finding of guilt based on an accused’s past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition.

Carter, supra, 157 U.S.App.D.C. at 150 , 482 F.2d at 739 (quoting Spencer v. Texas, supra, 385 U.S. at 575 , 87 S.Ct. at 660 (Warren, J., dissenting in part and concurring in part)).

The court then set forth the phase of cross-examination there at issue:

Q. [ASSISTANT UNITED STATES ATTORNEY]: And you wouldn’t rob that man right?

A. I had no reason to rob when I am working.

Q. You wouldn’t do something like that?

A. No, I wouldn’t.

Q. But in 1968, you were convicted of six counts of robbery and assault with a dangerous weapon, weren’t you, on three different people?

A. Yes, I was, and I have learned my lesson from that.

Q. You did?

A. Right.

Id. 157 U.S.App.D.C. at 151 , 482 F.2d at 740 .

The court construed that cross-examination, as do I, as having been “designed effectively to persuade the jury that [the defendant] would rob a man, and in fact committed the robbery for which he was now charged.” Id. (emphasis added). 3 The setting for the use of the prior conviction was to bait the defendant with — you wouldn’t do something like that, would you — but yet in 1968 you were convicted of doing the same thing. Then when the defendant replied he had learned his lesson from the prior conviction, the prosecutor interjected, “You did?” In short, the context was deliberate use of the prior conviction to establish present guilt, and the court found error.

Turning to Henry, supra, the defendant was being prosecuted on narcotics charges. After being asked several questions about whether he had supplied someone with nar- *472 cotíes and having received denials, the prosecutor asked: “Is it not true that [you were] convicted ... for possession of cocaine with intent to distribute cocaine?” 174 U.S.App.D.C. at 91 , 528 F.2d at 664 . The prosecutor then resumed by asking the defendant a series of questions on whether he had ever seen or was familiar with heroin, to all of which objections were sustained, at which point the prosecutor then for a second time asked about a prior conviction: “Mr. Henry, are you the same Roland R. Henry that was convicted ... of possession of heroin with intent to distribute it?” Id. at 92 , 528 F.2d at 665 .

Once again, the court held that “the manner in which the prosecutor asked his questions was improperly designed to suggest to the jury that prior guilt was a basis for inferring guilt of the crimes for which the defendant was then on trial.” Id. at 94 , 528 F.2d at 667 (emphasis added).

Then along came our decision in Fields v. United States, 396 A.2d 522 (D.C.1978). There, in a robbery and kidnapping prosecution, on direct examination the defendant denied participation and denied having a gun in his hand at the time. On cross-examination, the defendant denied he had a gun with him on the night of the crime. Whereupon, the prosecutor asked: “Are you the same Jesse Fields that was convicted in 1969 of carrying a pistol without a license?” Id. at 526 .

Upon receiving an affirmation, the prosecutor resumed the cross-examination and a short while later once again asked whether the defendant had a gun with him that night. Upon receiving a denial, the prosecutor once again asked: “Are you the same Jesse Fields that was convicted of unregistered possession of a firearm [in 1975]?” 4 Id. Upon receiving an affirmation, the prosecutor then introduced evidence of several other convictions to impeach the defendant. This court concluded that the manner in which the prior convictions were utilized “appeared designed to suggest to the jury that because appellant carried a gun before, he was probably guilty of the crime charged.” Id. at 528 (emphasis added).

After that decision came Bailey v. United States, 447 A.2d 779 (D.C.1982). In Bailey , the defendant was prosecuted on a charge of assault with intent to rape. On cross-examination of the defendant, the prosecutor asked:

Q. You didn’t drag her down [into the basement]?

A. No, I didn’t.

Q. That didn’t happen. You didn’t try to rape her down there, is that right?

A. That’s correct.

Q. Are you the same Phillip Bailey who ... was convicted ... of armed rape?

A. Yes, I am.

Id. at 781 .

This court held that our decision in Fields, supra, mandated reversal because in Bailey substantially the same sequence of questions appeared.

Next came our recent decision in Baptist v. United States, 466 A.2d 452 (D.C.1983). In Baptist , we reached a different result and the court had this to say:

During cross-examination of appellant, the prosecutor, on three separate occasions, used one or another of appellant’s three prior convictions to impeach appellant. At the outset of his cross-examination the prosecutor without objection impeached appellant with a 1975 conviction for larceny. This was followed by the trial court’s cautionary instruction on the limited admissibility of appellant’s prior convictions.

The prosecutor then began questioning appellant concerning his car’s breakdown, his possession of the pliers and wire cutters, and his discovery of the hole in Conrail’s fence. Appellant was then impeached with a 1975 attempted robbery conviction. The court overruled appellant’s objections.

*473 Continuing the cross-examination, the prosecutor asked appellant whether he had intended to steal the contents of the freight cars. Appellant denied such intent. The prosecutor then asked questions about appellant's awareness that boxcars sometimes contain valuable cargo, his familiarity with the train yard, and his reaction upon finding only large rolls of paper in the first three boxcars. After appellant responded that he had not been trying to steal anything from the car he was found in, government counsel asked him to explain why four boxes were stacked near the door. Appellant denied that he had stacked four boxes near the door, but asserted that he had picked up one box and turned it around to see what it was. The prosecutor then concluded his examination by impeaching appellant with a 1980 conviction for attempted petit larceny. The court again overruled appellant’s objection and provided an immediate cautionary instruction on the use of evidence of prior convictions for impeachment purposes.

Id. at 454-55 .

This court then went on to criticize the dissent in the decision of the hearing division in Dorman v. United States, (Dorman I), 460 A.2d 986 (D.C.1983), and essentially adopted the majority opinion approach in that case. 5 Judge Belson, speaking for the court, then enunciated a test, which is now abandoned, that should have remained the state of the law on this issue:

The test is whether the prosecutor’s reference to the defendant’s prior convictions during his cross-examination can be intended only to suggest to the jury that defendant is guilty of the crime charged because of his previous conviction or convictions.

Baptist, supra, 466 A.2d at 458 (emphasis added). The court made the significant observation that “like the sequence of questions in Dorman ... questions which can be said to relate to the credibility of the defendant will often relate as well to elements of the offense charged. ” Id. at 457 (emphasis added).

This is a truism on cross-examination of a defendant in a criminal case. The cross-examiner should not be expected to do otherwise. The court in Baptist then referred to the restrictive view of the dissent in Dorman I, supra, which view it disavowed, Baptist, supra, 466 A.2d at 457-58 , and went on to make the telling point that:

[T]he expression of what might be termed a restrictive view as to previous conviction impeachment which was set forth in the dissent in Dorman [I] illustrates well the potential for virtually nullifying § 14-305 which the development of this line of cases could present.

Id. at 457 (emphasis added).

The court focused upon the sequence of questions preceding the third and last use of prior convictions during the cross-examination. After noting that it did not immediately follow defendant’s general denial of the crime charged, the court found the manner of impeachment permissible. In so doing, the court stated:

The fact that the preceding answer dealt with circumstances surrounding commission of the alleged offenses did not preclude such questioning [on the prior conviction].

Id. at 459 (emphasis added).

That was the state of the law when this court undertook en banc consideration of Dorman . The court in Baptist had unequivocally adopted the majority opinion of the hearing division in Dorman I and specifically rejected the dissenting opinion. Now, the court effectively reverses itself and for the most part adopts that dissenting opinion in Dorman I. I relate this sequence in the interest of helping to avoid future confusion to the bench and bar in this jurisdiction. That is to say, it seems *474 unmistakably clear that the court’s en banc opinion in this case effectively overrules this court’s decision in Baptist, supra, and sets a new standard. Of this, there can hardly be genuine doubt.

In reading the court’s opinion in this case, I have a hard time finding the “most of Baptist’s analysis” that the court now professes to be approving. It seems to me that “ ‘[t]he matter does not appear to [the court] now as it appears to have appeared to [it in Baptist].’ ” McGrath v. Kristensen, 340 U.S. 162, 178 , 71 S.Ct. 224, 233 , 95 L.Ed. 173 (1950) (Jackson, J., concurring) (quoting Andrews v. Styrap, 26 L.T.R. (N.S.) 704, 706).

It may seem at first glance that the court’s opinion in this case does not have exceptional significance, but this would be a shallow reading. The holding of error in this decision will permeate criminal trials in this jurisdiction where the government cross-examines the defendant on prior convictions. First of all, it is an en banc decision. Secondly, it extends the prior law and establishes a new test, as I will explain. Next, it is written so it could reasonably apply to almost any routine cross-examination. It is commonplace in trials for the government to introduce prior convictions during cross-examination of the defendant. 6 In the trial court, where the judges, prosecutors and defense counsel must deal with the world of reality, the majority opinion in this case is not only bound to cause confusion on when, at what point during cross-examination, as a practical matter, the prosecutor may properly ask the usual questions of defendants about prior convictions. The court’s opinion also causes extreme uncertainty on what the cross-examiner may ask the defendant prior to the question on prior convictions. This is a pragmatic problem and hardly lends itself to the absolutist approach of the majority opinion.

I think it would have been better if the court had not applied the appellate microscope in this case and had adhered to the Baptist court’s view of Dorman I. The record in this case is materially different from Carter, Henry, and Fields, supra. It is not difficult to perceive when a prosecutor is utilizing, intentionally or unintentionally, prior convictions in such a way as to convey affirmative evidence of guilt. 7 I believe that in most instances where this occurs, it will be as a result of a deliberate purpose of the prosecutor to use prior convictions to this end. If prosecutors have this purpose, it will be readily apparent. It is rarely accidental. 8 They are, of course, risking a reversal if there is a conviction.

Up until this case, we had reversed only when it was apparent that the fatal questions were so “designed” as to have the impact that the defendant was convicted before so he should be convicted again. *475 This is the rule which was established by the circuit court.

To illustrate, in the circuit court’s grandfather opinion in this area, United States v. Carter, supra, the court stated:

[T]he manner in which he elicited the evidence was calculated to defeat the purpose of the [impeachment] rule .... [It] was designed effectively to persuade the jury that ... [Carter] would rob a man, and in fact committed the robbery for which he was now charged.

157 U.S.App.D.C. at 151 , 482 F.2d at 740 (emphasis added).

In this court’s successor decision in Fields v. United States, supra, we stated: “[T]he questioning appeared designed to suggest to the jury that because ... [Fields] carried a gun before, he was probably guilty of the crime charged.” 396 A.2d at 528 (emphasis added).

Then came the recent opinion of this court in Baptist v. United States, supra, where we had definitively laid down the standard:

[T]here will always remain the necessity of determining whether particular records evince clear abuse. The test is whether the prosecutor’s reference to the defendant’s prior convictions during his cross-examination can be intended only to suggest to the jury that [the] defendant is guilty of the crime charged because of his previous conviction or convictions.

466 A.2d at 458 (emphasis added).

The court now abandons the previous rule on prosecutorial “design” and enunciates a new one on implication of guilt.

This court now says, in so many words, if the crucial sequence of questions even carries an implication of guilt because of a prior conviction, it is error. To be precise, the court here says:

The test is whether the prosecutor’s reference to a defendant’s previous conviction is such that, under the circumstances, reasonable jurors would naturally and necessarily regard the manner in which the impeachment is accomplished as implying that the defendant is guilty of the crime charged because he was guilty of past crimes.

Majority op. at 460 (emphasis added; footnote omitted).

In other words, this court now must later review the cross-examination of the defendant and if it then appears to the court on appeal that the sequence of questions created an implication of present guilt because of past convictions in the collective mind of the jury, this would constitute error. 9 One must have a certain sympathetic understanding for the trial judges and the prosecutors in exercising their judgment on what is permissible cross-examination from now on. As far as I can see, the court is holding that in the questions under scrutiny the cross-examiner must leave no implication of guilt of the crime charged.

This may be an interesting little academic exercise in legal abstractions, but our duty is to deal with the real world of the courtroom. When the government is putting on its case in the criminal courtroom, “implications” on the defendant’s guilt of the crime charged usually exude from almost every evidentiary move it makes and particularly during cross-examination of the defendant. The circuit court doubtlessly was aware of this in Carter and Henry, supra, when it formulated the rule on this issue. I see no reason now to abandon that rule and open the flood gates with the new implication of guilt rule.

This court is requiring the government to sanitize unrealistically cross-examination, even in the context of a credibility attack such as occurred here. This is notwithstanding that, as I have indicated, the author of this court’s recent opinion in Baptist, supra, stated correctly: “[Q]uestions which can be said to relate to the credibility of the defendant will often relate as well to *476 elements of the offense charged.” 466 A.2d at 457 . The opinion of the en banc court in this case cannot avoid impeding the government’s cross-examination of a defendant with prior convictions.

Looking at the court’s opinion here from a down to earth viewpoint, this is a case where the defendant himself opened up the matter of his prior convictions on direct examination, 10 (and again on redirect examination) and in so doing related only one of four of his prior convictions on direct examination; on cross-examination the government briefly questioned him from a credibility approach on the far-fetched nature of his defense testimony; this was concluded with two questions which summarized very succinctly his far-fetched testimony. The defendant responded that this was a correct summary of his testimony and the prosecutor then introduced the three prior convictions the defendant had omitted in opening up the subject of prior convictions on direct examination, and immediately concluded the cross-examination.

The prosecutor had an obvious right to examine within the scope of the defendant’s direct examination about his prior convictions, and in so doing did nothing improper in the process. The trial judge gave the usual limiting instruction on at least two occasions in the trial. To create an en banc precedent of error in this case is unsound and needless. The majority finding of error on this record can be fit into a showing of error in almost any cross-examination on prior convictions.

As matters stand, I believe the trial court is now going to have uncertainty on introductions of prior convictions and this court will be flooded on appeal with variations on this issue for some time to come. On review, one should take a basic view in relation to cross-examination in a trial. In assessing cross-examination for error, we should not indulge in delicate shadings and fine ratiocinations. As an illustration, one need only ponder the important notes 2 and 3 of the majority opinion. The trial bench and bar should be spared the confusion this will engender.

To demonstrate the extent to which the court’s decisions are now changing in the matter of introducing prior convictions on cross-examination, in the very recent decision in Reed v. United States, 485 A.2d 613, 617 (D.C.1984), this court makes this statement:

[Cjross-examination of a defendant by impeachment of prior convictions must be undertaken in a manner to avoid suggesting guilt of pending charges as a result of prior convictions and to avoid suggesting bad character or worse about a defendant. (Emphasis added.)

I should think this is an extraordinary— to say nothing of insurmountable — burden to place on the prosecutor. I am not aware of how a prosecutor is able “to avoid suggesting bad character or worse about a defendant” while introducing prior convictions.

If, however, the court is determined to find error here, it would have been preferable to suggest a formal rule of procedure for the future in the matter of admission of prior convictions, rather than leave the trial bench and bar in a state of uncertainty. 11 Perhaps the trial court will now itself choose to do this by exercise of its rule making authority in an effort to rescue itself from a morass.

. I do not imply that if a defendant on direct examination voluntarily opens up a prior conviction the government, on cross-examination, may misuse its questions so as to convey to the jury that a prior conviction is affirmative evidence of guilt concerning the crime charged.

. The statute is sometimes referred to as the Luck statute. This is because in 1965, the United States Circuit Court for this jurisdiction, in deciding Luck v. United States, 121 U.S.App.D.C. 151 , 348 F.2d 763 (1965), ruled that the introduction of prior convictions was discretionary with the trial judge. The present statute on introduction of prior convictions amended the predecessor statute to make clear that evidence of relevant prior convictions shall be admitted.

. The court, as we see, found fault with the deliberate purpose of the prosecutor.

. This related to a second conviction for this offense.

. The decision of the hearing division in Dorman I, supra, was, of course, vacated when the court went en banc in this case. In order to understand the decision-making process in this case, however, it is necessary to be familiar with the recent history of our decisions on this issue.

.I might say, in passing, that it is not unknown to criminal law that evidence of prior crime is used as affirmative evidence concerning the crime charged. Evidence of prior crime, with appropriate instruction, is routinely admitted into evidence under the Drew doctrine, to show (a) motive, (b) intent, (c) absence of mistake or accident, (d) common scheme or plan, and (e) identity of person charged with the crime. Drew v. United States, 118 U.S.App.D.C. 11, 15-16 , 331 F.2d 85, 89-90 (1964). While the Drew doctrine is not here involved, I refer to it to illustrate there is nothing particularly revolutionary about introductions of prior convictions as affirmative evidence. Utilization of the Drew doctrine is commonplace in this jurisdiction. This is not to say that, because of the Drew doctrine, the trial court should not reasonably control the use of prior convictions in the context of a credibility attack by the government. But, on the other hand, it is to say that this court should not lose its equilibrium in the process of decision-making on this issue.

. To illustrate, the fatal questions in Bailey, supra, were:

Q. ... You didn’t try to rape her down there, is that right?

A. That’s correct.

Q. Are you the same Phillip Bailey who ... was convicted ... of armed rape?

A. Yes, I am.

447 A.2d at 781 .

. See majority op. at 460, where this court says it is concerned with jury impact not the motive of the prosecutor, a comment without practical significance..

. The court in its “measuring cup" test does not instruct us on how in the process to excise the inevitable prejudice resulting from a prior conviction.

. As I have indicated, I do not imply that this step gives the government a license to misuse his prior convictions on cross-examination.

. As Judge Nebeker aptly points out, one cannot reconcile the opinion in this case and the court's very recent opinion finding no error in Ford v. United States, 487 A.2d 580 (D.C.1984), where the prosecutor in closing argument stated: “Here’s a man on trial for first degree murder who twice has been convicted of first degree murder....” Id. at 591 . That is perhaps about as prejudicial as a statement to the jury can be regarding prior convictions — no matter what limiting remark a prosecutor may make. Yet, error was not found there by this court.