406 F2d 667 Smith v. United States

406 F.2d 667

132 U.S.App.D.C. 131

Raymond SMITH, Jr., a/k/a Walter Raleigh Jeffries, Appellant,
UNITED STATES of America, Appellee.

No. 21440.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 10, 1968.
Decided Dec. 13, 1968, Certiorari Denied April 7, 1969, See
89 S.Ct. 1315.

Mr. Richard S. Morey, Washington, D.C., with whom Mr. Frank H. Menaker, Jr., Washington, D.C. (both appointed by this court), was on the brief, for appellant.

Mr. John S. Gill, Jr., Asst. U.S. Atty., for appellee. Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Theodore Wieseman, Asst. U.S. Attys., were on the brief, for appellee.

Before BURGER, WRIGHT and TAMM, Circuit Judges.



This is an appeal from convictions on three counts of unauthorized use of a motor vehicle, possession of a sawedoff shotgun, and carrying a dangerous weapon. The sole question raised on appeal is whether the trial court abused its discretion under Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), by permitting the Government to cross-examine as to Appellant's 1963 petit larceny conviction.


We note preliminarily that Appellant's trial counsel did not ask for an on the record Luck, supra,1 hearing. We take this opportunity to reiterate that all treatment and consideration of the Luck-Gordon2 issue must be on the record.3 The failure to place the issue on the record unnecessarily raises the question of whether the trial judge's discretion under Luck-Gordon was meaningfully invoked.4


In any event, we have carefully canvassed the record, and from all that appears we are satisfied that the trial judge gave due consideration to the policy underlying Luck and properly exercised his discretion under 14 D.C. Code 305 (1967). Appellant took the stand and denied having stolen the car in question. This testimony directly conflicted with credible testimony offered by the prosecution, making Appellant's credibility the dispositive issue in the case. 'In those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.' Gordon v. United States, 127 U.S.App.D.C. 343, 348, 383 F.2d 936, 941 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Petit larceny, the conviction admitted here, involves elements of 'deceit, fraud, cheating, or stealing' and as such reflects 'adversely on a man's honesty and integrity.' Id. at 347, 383 F.2d at 940. The conviction was properly received for the jury's consideration.




The question was considered by the court and counsel off the record in chambers (Tr. 276)


Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968)


Id. at 346, 383 F.2d 939 (1967)


See Evans & Philson v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 (1968); Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966)