finding improper comments harmless where there was overwhelming evidence of guilt
How later courts described this case
- finding improper comments harmless where there was overwhelming evidence of guilt
- “[The] danger that the jury will draw the impermissible inference from the defendant’s past convictions that he is guilty of the current offense . . . is especially great if the past crimes are similar to the current offense.”
- noting that the trial court properly instructed the jury three times
- “Congress has prescribed that certain convictions are relevant to a fact finder’s credibility determination. We are bound by Congress’ policy decision.”
Written by the judges who cited it.
The opinion
KERN, Associate Judge, Retired,
concurring.
I concur in the judgment affirming the petit larceny conviction of appellant. I con *477 cur in that part of the majority opinion which declares that a prosecutor’s reference during cross-examination of a defendant to his prior convictions is impermissible when “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) However, I dissent from the majority’s conclusion that the prosecutor’s reference to appellant’s previous convictions during cross-examination here constituted error.
Under the particular circumstances of the instant case the jurors in my view would not “naturally and necessarily” have regarded the prosecutor’s reference to appellant’s previous convictions of carrying a dangerous weapon, of assault with a deadly weapon, and of first degree burglary and attempted larceny as implying that appellant had committed the crime for which he was being tried — petit larceny. To the contrary, I do not see how under the facts here a reasonable juror could have considered the prosecutor’s questions eliciting from appellant his admission of these previous convictions as anything other than attacks upon appellant’s credibility. Congress has mandated this procedure as proper in this jurisdiction 1 and this court has upheld such procedure as constitutional. See Dixon v. United States, 287 A.2d 89 (D.C.), cert. denied, 407 U.S. 926 , 92 S.Ct. 2474 , 32 L.Ed.2d 813 (1972).
Specifically, the jurors were instructed three times by the trial court that the references to appellant’s prior convictions in questions by both defense counsel and the prosecutor during direct examination, cross-examination and redirect examination were to be considered by them solely in determining how credible they deemed appellant’s testimony. Also, the prosecutor in the instant case, unlike the prosecutors in the cases cited by the majority, preceded his reference to appellant’s prior convictions with a half-dozen questions concerning the truthfulness of the testimony from the witness stand of other witnesses. Thus, the questions to appellant were propounded in a context of credibility. Under these circumstances, I am unable to agree on this record that any reasonable juror would “naturally and necessarily” regard the prosecutor’s questions as sly attempts on his part to imply that appellant was guilty. Bather, it is clear that the prosecutor was suggesting that appellant was being untruthful in his testimony.
. D.C.Code § 14 — 305(b)(1) (1981).