Forbes v. United States

KERN, Associate Judge,

concurring.

While I am able to join in Judge Gallagher’s opinion affirming the conviction upon the particular facts in this case,1 I do wish to point out to bench and bar that our recent decisions in Watts v. United States, D.C.App., 362 A.2d 706 (1976) (en banc), and Johnson v. United States, D.C.App., 387 A.2d 1084 (No. 8683, 1978) (en banc), do not obviate the necessity of giving to the jury a cautionary instruction at some point before the jury takes the case when one party impeaches the credibility of a witness of the other party with a prior inconsistent statement as occurred here.2

Indeed, the importance of a cautionary instruction as to the limited purpose of impeaching material was underscored in Dixon v. United States, D.C.App., 287 A.2d 89, 99, cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972), where we upheld the government’s use of a prior conviction to attack the credibility of a defendant at trial but noted that a cautionary instruction by the trial court sometime before the jury took the case assured “the basic fairness necessary to uphold the constitutionality of the use of prior convictions.” In sum, the omission committed by the trial court here was extremely serious and to me comes close but does not quite reach the level of plain error.

I also agree with a point made in the dissenting opinion: that there was considerable imprecision by the court and counsel in their discussion of the ground for admitting at trial the defense witness’ prior inconsistent statement to the grand jury. However, the very point of Rule 30, it strikes me, is to preclude counsel from citing on appeal omissions by the court at trial which were not specifically and precisely brought to the court’s attention and an opportunity for correction thereby afforded.

. The material damaging to the defense contained in the witness’ prior inconsistent statement was that a friend of appellant said to her she would be in trouble if she “told anything on Dexter.” On the other hand, the impeaching statement also contained the witness’ response to this approach: that she had “no reason to lie. He [appellant] wasn’t down there the night Clarence [the complainant] got shot.” Thus, this part of the prior statement by the witness was entirely consistent with and served to reinforce her trial testimony that appellant did not commit the crime charged.

. I call attention also to our reaffirmance in Johnson v. United States, supra at 1087 n. 6, that a sua sponte cautioning instruction is required when a party, surprised by its own witness, impeaches the witness with a prior inconsistent statement in accordance with D.C.Code 1973, § 14-102.