United States v. Ronald G. Adcox

19 F.3d 290, 1994 WL 86419
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 26, 1994
Docket93-1109
StatusPublished
Cited by28 cases

This text of 19 F.3d 290 (United States v. Ronald G. Adcox) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Ronald G. Adcox, 19 F.3d 290, 1994 WL 86419 (7th Cir. 1994).

Opinions

COFFEY, Circuit Judge.

The defendant, Ronald G. Adcox, was indicted by a grand jury and charged with murder and conspiracy to commit murder in violation of 18 U.S.C. §§ 1111,1112 and 1117. [292]*292Adcox’s first trial ended in a hung jury and thereafter the judge declared a mistrial. On December 10, 1992, a second jury found Ad-cox guilty of both charges. After denying post-trial motions, the district court sentenced the defendant to two concurrent life terms of imprisonment. The defendant appeals his conviction. We affirm.

I.FACTS

On July 16, 1991, Luis Moreno was found murdered in his cell in the federal penitentiary in Terre Haute, Indiana. The FBI and prison officials conducted an investigation that resulted in a grand jury rendering an indictment against Adcox and Alejo Hernandez. Hernandez pled guilty to the indictment.

The district judge declared a mistrial in Adcox’s first trial after the jury was unable to reach a verdict. In the second trial, the government presented the testimony of numerous inmates who stated that they saw Adcox and Hernandez enter Moreno’s cell and leave it approximately five minutes later. The government also offered the testimony of eye-witness Jack Lopes, another inmate, who stood outside Moreno’s cell and observed Adcox strangle the victim with a cord while Hernandez held Moreno’s legs down. Lopes further testified that when the defendant and Hernandez exited Moreno’s cell Hernandez asked Lopes for a razor blade. Lopes stated that he did not have one and Hernandez then obtained a razor blade from Adcox. He re-entered Moreno’s cell and stated upon exiting the cell, “I got him.” Approximately one hour later, Eccehomo Velgar-Vivero, Moreno’s cousin and cell mate returned to the cell to discover Moreno lying on his bed with a pillow over his face and his right wrist slashed. Attempts to revive Moreno failed. An autopsy revealed that the cause of death was asphyxiation by strangulation.

Prior to his second trial, Adcox, who represented himself, made a motion in limine seeking to exclude the testimony of Jack Lopes because he believed Lopes committed perjury in the first trial and because of an alleged statement made by the Assistant United States Attorney (“AUSA”) at the first trial calling Lopes’ veracity into question. The trial court denied his motion in limine because (1) the defendant failed to offer any evidence that Lopes perjured himself in the first trial and, (2) Adcox would have ample opportunity to cross-examine Lopes during the second trial.

A significant aspect of the defense in the second trial was the testimony of Alejo Hernandez who had already pled guilty to the murder. Adcox asked Hernandez

Q “Was I the person that was with you when you killed Mr. Moreno?”
A “No, you weren’t.”

At the close of evidence, after the jury had been instructed and was deliberating, the foreman sent a question to the judge asking “Did Alejo Hernandez make the statement that Ronald Adcox was not the individual that entered the cell at the time of the murder?” After conferring with both counsel, the trial judge refused to answer the question for the jury and instead instructed them: “The court cannot comment on the evidence and you must rely on your memory as to the evidence.” The jury subsequently returned a guilty verdict as to the defendant Adcox on both the murder and the conspiracy to commit murder counts.

II.ISSUES

The defendant argues that the court abused its discretion in refusing to read the transcript back to the jury concerning Hernandez’s testimony. The defendant also argues that the court erroneously denied his motion in limine seeking to exclude the testimony of Jack Lopes.

III.DISCUSSION

A.1

The defendant Adcox maintains that we should review the court’s refusal to an[293]*293swer the jury’s question for an abuse of discretion. See United States v. Guy, 924 F.2d 702, 708 (7th Cir.1991) (“The decision to deliver testimony of a witness to the jury during its deliberations- is ‘a matter purely within the trial court’s discretion.’ ”) (quoting United States v. Keskey, 863 F.2d 474, 476 (7th Cir.1988)). The government argues that the defendant failed to object to the court’s refusal to answer the jury question and thus our review should be for plain error. United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988) (“[t]o preserve an issue for appellate review, a party must make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection ... [njeither a general objection to the evidence nor a specific objection on other grounds will preserve the issue for review”). A review of the transcript reveals that the defendant did express a preference for the court to read the transcript of the relevant testimony to the jury but the judge decided that he would not “comment on the evidence and [they] must rely on [their] memory as to the evidence.” When the court inquired if there were any objections to this answer the pro se defendant replied, “No, sir.”2 Accordingly, we review the court’s refusal to read the transcript to the jury for plain error. United States v. Olano, — U.S. -, -, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); Wynn, 845 F.2d at 1442.

There are several factors that the courts have considered when determining whether the trial court erred in refusing to answer a question from a jury during their deliberations. We have stated that a district court does not abuse its discretion when it refuses to grant a jury request for witness testimony if doing so “would unduly highlight that testimony” and give an advantage to one party in the litigation over the other. Guy, 924 F.2d at 708. In Guy, we also noted that “the length of the trial was short, and thus the jurors’ memory of [the] testimony should be sufficiently fresh.” Id. Moreover, when the trial court answers a question from the jury it “has a duty to answer a jury’s question with, ‘concrete accuracy.’” United States v. Franco, 874 F.2d 1136, 1143 (7th Cir.1989) (quoting Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946)).

The defendant refers us to two decisions from other circuits as support for his argument that the trial court erred. In United States v. Zarintash, 736 F.2d 66

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Bluebook (online)
19 F.3d 290, 1994 WL 86419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ronald-g-adcox-ca7-1994.