United States v. Brightwell

563 F.2d 569

Opinions

OPINION OF THE COURT

PER CURIAM.

The appellants, Peeks, Brightwell and Spence appeal their conviction.

Appellant, Thomas Peeks, makes the following contentions: (1) that the evidence seized from the Brightwell residence was obtained in violation of the Fourth Amendment prohibition against illegal searches and seizures and should have been suppressed by the trial court; (2) the trial of the co-defendant jointly was prejudicial to defendant Peeks and denial of defendant’s motion for severance constituted prejudicial error; (3) denial of defendant’s motion for change in venue constituted error since defendant was unable to obtain trial by an impartial jury; (4) the pretrial publicity reporting on defendant’s trial, as well as on more generalized criminal activity undertaken by identified black groups precluded a trial consistent with standards of due process; (5) the impanelment of an all-white jury was inherently prejudicial to appellant; (6) under the totality of the circumstances of this case, appellant was denied due process and a fair jury trial.

Appellant, David Brightwell, makes the following contentions: (1) that the court erred in sustaining a warrantless entry and search and seizure without a clear showing of probable cause and exigent circumstances; (2) that the court abused its discretion in permitting a witness to make identification by voice analysis without sufficient inquiry into the competency of the witness to testify, especially when the witness’ testimony was speculative and was in the nature of an opinion; and (3) that the court erred in refusing to dismiss an impaneled jury which did not properly reflect a cross-section of the community.

Appellant, Stephen Spence, makes the following contentions: (1) that the court erred in refusing to suppress the evidence found in the home of co-defendant David Brightwell on the grounds that same was obtained as a result of an illegal search and seizure, in violation of appellant’s rights under the United States Constitution, and permitting said evidence to be introduced against appellant at trial; (2) that the court erred in refusing appellant’s requested jury instructions and in failing to instruct the said jury that, although the law authorizes an inference of guilt of theft from possession of recently stolen goods, the jury is not required nor instructed to draw such inference; (3) that the court erred in refusing appellant’s requested jury instructions and in failing to instruct the said jury that, in order to find that the appellant “aided and abetted” in the bank robbery, they must find that appellant had prior knowledge of the robbery; (4) that the court erred in refusing to grant appellant’s Motion for Severance prior to trial; (5) that the court erred in refusing to grant appellant’s Motion for Acquittal at the close of all the testimony; (6) that the jury verdict was against the weight of the evidence; and (7) that the court erred in refusing to dismiss the charges because of the government’s failure to afford the appellant a speedy trial as required by the United States Constitution.

We have examined the record of the joint trial as well as the opinion of the district court and the briefs on appeal. We think such examination supports the conclusion that no error was committed by the district court. We note particularly that the facts found by the district court in its unreported opinion fully support its conclusion that the requisite probable cause and exigent circumstances existed to support warrantless entry and search of the Brightwell residence and the subsequent plain view seizure.

The judgments of the district court will be affirmed.