United States v. Ernest Lee Abshire

471 F.2d 116, 1972 U.S. App. LEXIS 6132
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 26, 1972
Docket72-1867
StatusPublished
Cited by38 cases

This text of 471 F.2d 116 (United States v. Ernest Lee Abshire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ernest Lee Abshire, 471 F.2d 116, 1972 U.S. App. LEXIS 6132 (5th Cir. 1972).

Opinions

RONEY, Circuit Judge:

Appellant Ernest Lee Abshire was convicted of the interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C.A. § 2312 (the Dyer Act), and of the interstate transportation of a firearm by a felon, in violation of 18 U.S.C.A. Appendix § 1202(a)(1). We affirm.

On appeal, Abshire contends that the District Court erred by (1) refusing to grant him a continuance, (2) admitting a jailer’s testimony that revealed a prior criminal record, (3) refusing to sever his Dyer Act trial from his firearm trial, (4) admitting eyewitness identification evidence, and (5) refusing to order the government to produce two defense witnesses. Additionally, as a sixth point, Abshire argues that the evidence was insufficient to support his firearm conviction.

(1) The general rule is that a motion for a continuance is addressed to the sound discretion of the trial court, and the trial judge’s decision will not be disturbed unless he clearly abused his discretion. Joseph v. United States, 343 F.2d 755 (5th Cir.), cert. denied, 382 U. S. 828, 86 S.Ct. 65, 15 L.Ed.2d 73 (1965). See also United States v. O’Brien, 466 F.2d 517 (5th Cir. 1972) ; United States v. Valdez, 418 F.2d 363 (5th Cir. 1969); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968). Appellant contends that the trial judge should have granted the continuance to permit newly-appointed co-counsel to familiarize himself with the case. We agree with the District Court that the continuance was unnecessary. Appellant had been represented for the six months preceding the trial by his original coun[118]*118sel, who had thoroughly prepared the case and was present throughout the trial, and newly-appointed co-counsel relied upon original counsel’s preparation in conducting a sifting cross-examination and a thorough defense. The District Court therefore did not abuse its discretion in denying appellant’s motion for a continuance.

(2) Appellant contends that his defense was irretrievably prejudiced by the testimony of Mr. Marvin Cash, the jailer at the Pulaski County Jail in Little Rock, Arkansas. Mr. Cash testified that the gun which appellant was accused of transporting in interstate commerce was stolen the night of an escape from the jail. Appellant argues that the references to his previous jail term and to his escape branded him a criminal in the eyes of the jury.

Admissibility of evidence is a matter within the broad discretion of the trial court, United States v. Gonzalez, 466 F.2d 1286 (5th Cir. 1972), and this Circuit holds fast to the rule that the prosecution must not employ evidence of prior crimes for the purpose of showing either defendant’s criminal character or his propensity to commit crimes. See, e. g., United States v. Garber, 471 F.2d 212 (5th Cir. 1972). But evidence of prior criminal conduct is admissible if relevant for another purpose. See, e. g., United States v. Payne, 467 F.2d 828 (5th Cir. 1972); United States v. Davis, 464 F.2d 558 (5th Cir. 1972); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); United States v. Pittman, 439 F.2d 906 (5th Cir.), cert. denied, 404 U.S. 842, 92 S.Ct. 138, 30 L.Ed.2d 77 (1971).

The testimony of Mr. Cash was both relevant and necessary to the proof of the crime charged, and admission of the testimony did not unfairly prejudice appellant’s defense. To establish the firearm violation, the government had to prove the identity of the gun which was traced to appellant, the element of interstate transportation, and appellant’s access to the weapon. On these facts, the evidence was properly admitted. It cannot be excluded simply because it established that appellant had escaped from a jail where he had been incarcerated for an earlier offense. The inclusion of references to “jail” or “prison” does not disqualify essential, otherwise relevant, testimony. See United States v. Sutherland, 463 F.2d 641 (5th Cir. 1972) ; Bram v. United States, 226 F.2d 858 (8th Cir. 1955).

(3) Appellant argues that the trial judge unnecessarily compounded the prejudice of Mr. Cash’s testimony by refusing to grant separate trials for the firearm charge and the Dyer Act charge. According to appellant, the testimony establishing the firearm offense, especially the “jail” references, necessarily “spilled over” into the Dyer Act case.

Under Rule 8(a), F.R.Crim.P., two or more offenses may be joined if they “are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Motions for relief from prejudicial joinder are authorized by Rule 14, F.R.Crim.P., and they are addressed to the sound discretion of the trial court. United States v. Lane, 465 F.2d 408 (5th Cir. 1972). The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed by a reviewing court. 8 Moore, Federal Practice ¶ 14.02 [1] (2d ed. 1972). The defendant must show something more than the possibility that a separate trial might have offered him a better chance of acquittal. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

In the case at bar, both offenses arose out of the same sequence of events, so joinder was proper under Rule 8(a). See Tillman v. United States, 406 F.2d 930 (5th Cir.), vacated and remanded on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). The trial judge’s refusal to grant appellant’s motion for severance was within the limits of his discretion. The trial [119]*119judge carefully instructed the jury to consider each charge separately, and we cannot conclude that those instructions were not followed. Considerations of judicial economy dictate “that the government should not be made to prove the same facts more than once.” 8 Moore, Federal Practice ¶ 8.05 [2], pp. 8-19 (2d ed. 1972). See Tillman v. United States, supra.

(4) Appellant was arrested after he was involved in an automobile accident with the stolen car. The arresting officer drove appellant back to the scene of the wreck where he was identified by the driver of the other automobile. While appellant was being so identified, another eyewitness was able to see him again. Relying upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), appellant contends that these witnesses’ subsequent in-court identifications were tainted because he was not advised of his right to counsel prior to the on-the-scene identification.

The Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), refused to extend Wade to investigatory showups held before formal charges had been filed against the defendant. Appellant’s reliance upon Wade, therefore, is misplaced.

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Bluebook (online)
471 F.2d 116, 1972 U.S. App. LEXIS 6132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ernest-lee-abshire-ca5-1972.