Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
The only issue presented by this appeal from a robbery conviction derives from Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). In that case we construed the statute in this jurisdiction relating to impeachment of the credibility of witnesses in judicial proceedings by means of prior criminal conviction (14 D.C.Code § 305 (1967)) to be less than automatic in its operation, and to accord the trial court latitude to deny or limit such impeachment in a particular case if it thought the integrity of the truth seeking process would be correspondingly enhanced. An unsuccessful attempt to invoke the trial court's discretion often foreshadows an appellate claim of abuse said to require reversal. Such is the case here, for counsel presses upon us a claim that the judge below abused his Luck discretion. Counsel newly appointed for this appeal, however, has broadened the attack by urging that, at least as applied to the criminal defendant in this case, the statute is unconstitutional. For the reasons appearing hereinafter, we do not reach the merits of this latter contention, and appraising the trial court's action solely in terms of discretion, we find no abuse necessitating reversal. I
The Government's case was strong indeed. The robbery victim testified that, having just left a restaurant in downtown Washington, he was accosted by two men who demanded his money. Even though he said he had none, the two men closed in on him in order to take his watch, which the victim claimed one of the two had noticed. The victim started shouting, but was beaten into semi-consciousness. He testified that his watch, which was never found, was taken forcibly from him. He identified appellant as one of his assailants.
The proprietor of the restaurant testified to hearing screams outside his place of business, and of going out the door and seeing the complainant lying on the ground with two men near him. One of these, said to be the appellant, appeared to be in the act of removing his foot from the victim. When the witness asked the two men what they were doing, they ran. The proprietor bluffed appellant into stopping by pretending to have a gun, but appellant, upon realizing he had been tricked, ran again, only to be caught by the proprietor when appellant lost his balance and fell. A police officer testified that, arriving upon the scene (which still included the victim lying in one of the doorways to the restaurant), he arrested appellant for robbery in light of the account given him by the restaurant proprietor of what had taken place.
With the Government's case complete, appellant's counsel asked the court to exercise its Luck discretion and permit appellant to testify free of impeachment by prior conviction. The court was invited to hear appellant's story out of the presence of the jury. The court refused to do so, and counsel thereupon made a proffer on the record that appellant would have testified that "he was set upon and was chased and that there is either a case of mistaken identity or they have gotten the wrong man." *fn1 The prosecutor, presumably convinced that the Government's case would wither away in the blast of this story by appellant, insisted upon impeaching appellant by prior convictions.
The court excluded a 1961 Maryland assault conviction proposed to be shown by the Government, but it concluded to permit use of a 1962 robbery conviction. After conferring with appellant, defense counsel stated that appellant would not testify if impeached, and asked the judge to reconsider. The trial judge did not relent. Appellant did not testify, nor did anyone else on his behalf. The jury's verdict of guilty was forthcoming promptly. II
The representations made to the trial court as to why it should deny impeachment by means of the prior robbery conviction included claims that (1) the five-year age of that conviction made it too remote in point of time to have significance and (2) it was inappropriate for such use because appellant was sentenced under the Youth Corrections Act. As to the former, we have remarked hitherto the relevance of the factor of remoteness to an informed discretion in this area, but we are unable to say that the five-year span here involved placed the robbery conviction beyond the pale. The second point raises quite different considerations, but, on the facts of this record, we cannot say that the circumstance of the sentence under the Youth Corrections Act placed this robbery conviction outside the ambit of those contemplated by Congress in the impeachment statute. *fn2
Most of the discussion at trial centered around the defense contention that the robbery conviction should not be used because it did not bear upon veracity. The Government, conversely, argued that robbery involves stealing, that stealing bears upon veracity, and that, since appellant was denying guilt, the robbery conviction was relevant to the credibility of that denial. The court dealt with the question of the robbery conviction at length, and articulated with some care the basis for its ruling. It quite correctly took note of the special problems raised by prior convictions for the same crime as the one for which a defendant is currently on trial -- problems which it thought might be ameliorated by admitting only one such prior conviction, as was the case here. On the question of whether robbery has any implications for veracity, the court fairly and accurately identified our comments on the subject in Gordon, supra note 1, and expressly relied upon them. We think it was entitled to do so.
It was, lastly, urged upon the trial court that appellant's testimony was of such a nature that the jury might reach an unjust verdict if it did not hear it. We have in the record, of course, only trial counsel's brief characterization of what that testimony would be, but we have no reason to believe that counsel summarized it inaccurately or failed to put it in its best light. Such as it was, it was all appellant had. And, so long as we subscribe to the principle and practice that, in our deep-seated horror of convicting the innocent, the Government may always be put to its proof that the accused is guilty beyond a reasonable doubt, one may wonder what governmental interest was served by keeping appellant's story from the ears of the jury by insisting upon the identification of its narrator as one with a criminal past. But, on this record, we cannot say that the shadow of possible error lay so darkly over these proceedings that this conviction must be reversed because of the court's failure to let appellant tell his story without being impeached by his prior conviction.
We are, thus, not persuaded by that branch of appellant's challenge which is rooted in the concept of trial court discretion. An appellate claim of abuse by a trial judge in an area where his first-hand impressions are important has always -- and rationally so -- an uphill road to travel. *fn3 This was not unknown to this court when it decided Luck, but Luck did make available to the trial judge an alternative which it had been assumed for fifty years he never had, namely the power to deny the weapon of impeachment to the prosecution in a case where the judge believes that the jury ought to have a chance to hear the defendant's story.
The degree of utilization of that power will inevitably vary with the temperament and attitudes of the individual judge -- a phenomenon hardly peculiar to trial judges, as distinct from their appellate brethren. Appellate restraint in this area should, however, be matched by an intent on the part of the trial judge not to approach every Luck determination with an implacable purpose always to permit impeachment. Luck has endowed the trial judge with a new resource of flexibility in conducting the search for truth. It is to be administered by reference to that objective. III
Appellant has, in this court, gone beyond the discretionary issue raised at trial and asked us to invalidate the statute as constitutionally deficient. *fn4 As a justification for mounting the constitutional attack nowhere expressly countenanced in Luck, he points to a supervening circumstance in the form of the Supreme Court's recent strictures upon the effectiveness of limiting instructions. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). That case did not involve impeachment by prior conviction but, rather, the effect upon one defendant of the introduction of a co-defendant's confession. The court re-examined and revised its earlier assumption in Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), that it is "'reasonably possible for the jury to follow' ...