United States v. Jane Doe, A/K/A "Frankie Mae,"

Fifth Circuit

United States v. Jane Doe, A/K/A "Frankie Mae,"

488 F.2d 93, 1973 U.S. App. LEXIS 6498

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 13, 1973

Docket73-2482

StatusPublished

Cited by5 cases

This text of 488 F.2d 93 (United States v. Jane Doe, A/K/A "Frankie Mae,") 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.

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United States v. Jane Doe, A/K/A "Frankie Mae,", 488 F.2d 93, 1973 U.S. App. LEXIS 6498 (5th Cir. 1973).

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Opinion

PEB CUBIAM:

Appellant was convicted in a jury trial on June 11, 1973 of distribution of heroin (21 U.S.C.A. § 841(a)(1)). Appeal is taken on two points: (1) That reversible error was committed by the trial court in allowing a photograph to be introduced during the Government’s rebuttal testimony, and (2) that it was error *94 to prevent the defendant from testifying in surrebuttal to the Government’s rebuttal testimony. Finding no reversible error we affirm.

At the trial a special agent for the Federal Bureau of Narcotics and Dangerous Drugs, Ellis Dean, testified that on November 8, 1972, he went to a residence in Gainesville, Florida, where he met the defendant Frankie Mae Jones. In exchange for seventy five dollars ($75.00) Dean received five packets of a white powder subsequently analyzed to be heroin. Dean gave a full account of the transaction and identified Frankie Mae as the person who had given him the heroin.

The defense consisted of an alibi with testimony solicited from the defendant and four relatives or friends who stated that Frankie Mae was in Boynton Beach, Florida, on November 8, 1972, visiting her father. In an attempt to rebut the alibi, the Government called Clarence Thomas as a witness. Thomas was a confidential informant for the Bureau of Narcotics and Dangerous Drugs and was present during the exchange on November 8, 1972. He testified that Frankie Mae passed the heroin packets to Agent Dean in exchange for seventy five dollars ($75.00). Agent Dean then was called back to the stand as a rebuttal witness. At this time he produced a photograph which he had confiscated from the house when he returned on December 8, 1972, to arrest Frankie Mae. Dean took the photograph because it pictured the individual who had sold him the heroin on November 8, 1972. The person in the photograph was Frankie Mae.

It is within the sound discretion of the trial court to receive additional evidence after closing of the casein-chief. Simsirdag v. United States, 5 Cir., 1963, 315 F.2d 230. The acceptance of the photograph into evidence did not broaden the scope of the Government’s case. The defendant had presented a vigorous alibi defense to which Thomas and Dean responded. The issue of the rebuttal centered solely on establishing the proper identification of Frankie Mae.

Since testimony during rebuttal created nothing new, the trial court’s refusal to allow surrebuttal by the defendant was proper. Turner v. United States, 5 Cir., 1971, 441 F.2d 736. Additional testimony by the defendant would have provided the trial with a mere reiteration of her previous alibi defense.

Affirmed.

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PEB CUBIAM:

Appellant was convicted in a jury trial on June 11, 1973 of distribution of heroin (21 U.S.C.A. § 841(a)(1)). Appeal is taken on two points: (1) That reversible error was committed by the trial court in allowing a photograph to be introduced during the Government’s rebuttal testimony, and (2) that it was error *94 to prevent the defendant from testifying in surrebuttal to the Government’s rebuttal testimony. Finding no reversible error we affirm.

At the trial a special agent for the Federal Bureau of Narcotics and Dangerous Drugs, Ellis Dean, testified that on November 8, 1972, he went to a residence in Gainesville, Florida, where he met the defendant Frankie Mae Jones. In exchange for seventy five dollars ($75.00) Dean received five packets of a white powder subsequently analyzed to be heroin. Dean gave a full account of the transaction and identified Frankie Mae as the person who had given him the heroin.

The defense consisted of an alibi with testimony solicited from the defendant and four relatives or friends who stated that Frankie Mae was in Boynton Beach, Florida, on November 8, 1972, visiting her father. In an attempt to rebut the alibi, the Government called Clarence Thomas as a witness. Thomas was a confidential informant for the Bureau of Narcotics and Dangerous Drugs and was present during the exchange on November 8, 1972. He testified that Frankie Mae passed the heroin packets to Agent Dean in exchange for seventy five dollars ($75.00). Agent Dean then was called back to the stand as a rebuttal witness. At this time he produced a photograph which he had confiscated from the house when he returned on December 8, 1972, to arrest Frankie Mae. Dean took the photograph because it pictured the individual who had sold him the heroin on November 8, 1972. The person in the photograph was Frankie Mae.

It is within the sound discretion of the trial court to receive additional evidence after closing of the casein-chief. Simsirdag v. United States, 5 Cir., 1963, 315 F.2d 230. The acceptance of the photograph into evidence did not broaden the scope of the Government’s case. The defendant had presented a vigorous alibi defense to which Thomas and Dean responded. The issue of the rebuttal centered solely on establishing the proper identification of Frankie Mae.

Since testimony during rebuttal created nothing new, the trial court’s refusal to allow surrebuttal by the defendant was proper. Turner v. United States, 5 Cir., 1971, 441 F.2d 736. Additional testimony by the defendant would have provided the trial with a mere reiteration of her previous alibi defense.

Affirmed.

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488 F.2d 93, 1973 U.S. App. LEXIS 6498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jane-doe-aka-frankie-mae-ca5-1973.

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