Cutting Through an Alibi

Charge: robbing a drug store using a knife. Several employees of the store identified D.

At the conclusion of the government's case, a bench conference is held in which the government urges that it be allowed to call Coombs, an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms, who would testify that D had told him three months before the robbery that he had robbed a drug dealer, using a knife. The government theory, articulated in a memorandum of law for the court, is that the use of a knife in a prior crime is probative of appellant's identity under Rule [nb404(b)(2). The district court and counsel engage in the following colloquy:

Mr. Healy (prosecutor): Essentially, that is my case. I submitted a memo...

The Court: I read the memo and I would say, in the interest of quitting while you are ahead, at the present time I will confine you to your case. I don't know what George has for a defense. You might try and get it in rebuttal, if it gets to that point.

Mr. Higgins (counsel for defendant): Mine is strictly alibi, your Honor.

The Court: This business--I am sure you have a copy (indicating).

Mr. Higgins: I am going to be eating large chunks of the rug if he starts with that stuff.

The Court: It is arguably admissible. If you read the Heatherton (sic) and Wright cases [United States v. Eatherton, 519 F.2d 603 (1st Cir. 1975); United States v. Wright, 573 F.2d 681 (1st Cir. 1978)], it is arguably admissible. I won't say I won't let it come in, but for your direct case I don't think you need it at the moment. You have a pretty strong case and I suggest you quit while you are ahead. At the end of his case, if you want to take a shot at it and offer it, we will see about it then.

D then presents his case, testifying that he had been elsewhere at the time of the robbery. In the course of D's cross-examination by the government, the relevant questions and answers are as follows:

Q: In late 1977, did you commit any robberies by knife?

A: In 1977? By knife? Did I commit any robberies?

Mr. Higgins: I object to that, your Honor.

The Witness: No.

The Court: He said no. All right.

The Witness: No. I didn't, wait a minute. 1977? Did I commit any robberies?

Q: Late 1977, any robberies by knife?

A: I--no. I have not committed any robberies by knife in 1977.

After the defendant presents his case, the government seeks once again to introduce Agent Coombs's testimony.

Mr. Healy: There were certain matters that I had written a memorandum on and I want to put out in my case in chief, and at this time there is one in particular, and that is my recollection of the defendant's testimony was that he denied...

The Court: Conducting a robbery in late 1977 by the use of a knife, and you have a witness that is going to say he admitted that, and that is admissible on the limited issue of his credibility.

Mr. Healy: Yes.

Mr. Higgins: Your Honor, please note my objection. It will be my position that that is so prejudicial as to warrant its exclusion; and, further, that matter was not raised on direct.

The Court: It was raised on cross-examination, and the defendant's credibility is crucial in this case where there is an alibi defense, and there are Court of Appeals opinions indicating that when a defendant's testimony is critical that cross-examination is permissible on the issue of credibility. I will take it with a limiting instruction that I will give to the jury that it is admissible on the defendant's credibility. I will, of course, note your objection.

The prosecution then calls Agent Coombs:

Q: Sir, in what capacity did you meet the defendant?

A: I met him while I was working in an undercover capacity.

Q: Now, sir, did there come a time in September of 1977 when you had a conversation with him concerning the possible robbery of a drug dealer?

A: Yes.

Q: What, if any, conversation was that?

A: In, I believe it was in the beginning of September, he asked me if I would be interested in assisting him in the robbery of a Puerto Rican drug dealer in the City of Somerville.

Q: Did he state the drug dealer's name?

A: No.

Q: November 16, 1977, sir; did you see him on that day?

A: Yes.

Q: Did you have a conversation with him concerning that same drug dealer?

A: Yes.

Q: And, sir, in substance, what did he say?

A: He basically said that he had robbed a Puerto Rican drug dealer by the name of Vincente with a knife.

D is convicted. Was there error?