United States v. Brian Paul Sanchez

GODBOLD, Circuit Judge

(specially concurring):

I concur in the opinion of Judge Ains-worth with a single minor exception. A prior conviction for a felony is admissible to prove that a defendant who has taken the witness stand is not a credible witness, but the evidence of this appellant’s conviction of homicide with a motor vehicle was not offered for such a purpose. Rather it was offered as a continuation of, and as part of, the prosecution’s improper line of cross-examination predicated upon appellant’s answer “I never had anything like that happen to me,” which the prosecutor recast into a purported statement by appellant that he had never before been involved in any acts of violence relating to other human beings. On the incorrect premise erected by the prosecutor that the appellant had denied participating in any prior act of violence the prosecutor inquired fully concerning the assault on the bartender and the automobile offense, both of which he considered to be prior “acts of violence.” Only after he had wrung dry his cross-examination predicated upon the false premise of a denial that appellant had never made, did the prosecutor establish by his final two questions that appellant had been tried and convicted of the automobile offense. This last minute band-aid did not cure the prejudice of the preceding inquiry that should not have been made at all.1 In short, when properly offered, the fact of a fel*10ony conviction is admissible as probative of the non-believability of the testifying defendant, but it is not admissible in the manner in which done in this trial.

. Similarly, the prosecution could not, in the guise of impeaching the believability of the defendant on the stand, ask him the unsavory details of a prior incident in his life none of which would be admissible and, at the end, ask if those incidents had not culminated in a felony conviction.