Certiorari Denied February 24, 1969. See 89 S.Ct. 922.
REGISTER, Chief District Judge.
Appellant Richard Allen Tanner (hereinafter referred to as Tanner or Appellant) was tried by a jury on a two-count Informantion. In Count I it was charged that "on or about August 28, 1966, in the Western Division of the Western District of Missouri, (Tanner) transported and caused to be transported in interstate commerce from Grove, Oklahoma, to Kansas City, Missouri, a stolen motor vehicle, to wit: a 1965 Chrysler, and he then knew said motor vehicle to have been stolen, in violation of Section 2312, Title 18, United States Code." In Count II Tanner was charged with a violation of Section 2313, Title 18, United States Code — the receipt by him of said stolen motor vehicle, which was moving as interstate commerce, he then knowing said motor vehicle to have been stolen. At the close of all of the evidence, Count II was dismissed, and the case submitted to the jury under appropriate instructions, solely on Count I. This appeal is from his conviction by
During all proceedings in this case, Tanner has been represented by court-appointed counsel. Trial counsel was a member of the staff of the Legal Aid & Defender Society of Greater Kansas City. In the preparation of brief on this appeal, and for oral argument before this Court, different counsel represented Tanner, under appointment by this Court pursuant to application of Tanner. For reasons which will become apparent, we will first consider the contentions of Tanner which are before us as a result of brief and argument of such latter counsel.
Tanner's first contention on this appeal is that he "was denied substantive due process as a result of ineffective representation by his Court-appointed defense counsel." As one specific basis of the charge of "ineffective representation" Tanner contends that his counsel "failed to preserve error during course of trial by timely and proper objections." The objections which Tanner contends should have been made, allegedly refer to "hearsay," "leading questions" and "opinion testimony." In Appellant's brief after reference to and discussion of instances of such alleged improper failure on the part of trial counsel to make objections, we find the following significant statement: "Appellant readily concedes however that this might well be construed as a matter of trial tactics and strategy constituting only a procedural matter and of no genuine substance." With this conclusion we agree.
We have carefully examined the transcript of the trial proceedings. Counsel's failure to make the objections referred to was obviously the result of his considered exercise of judgment involving trial tactics, and we are satisfied that no violation of any substantial right of Tanner, or prejudice to him, occurred by reason thereof.
As the only other specific basis of the charge of "ineffective representation" Tanner states that his lawyer "failed to preserve possible assignments of error by failing to file any motion for new trial." Tanner argues that, because of such failure, he was denied "his vital right to appeal," and, proceeding with this argument, contends that "failure * * * to file a Motion for New Trial and preserve thereby all possibility of error for appeal constitutes such ineffective representation as to render Appellant the victim of a farce and a sham within the purview of the Malfetti and Hendrickson cases, supra, to the effect that his substantive constitutional rights were denied him."
At the close of all of the evidence, defense counsel made a motion for a directed verdict,
Although the right to appeal from a conviction in a criminal case is within the protection of the Constitution (Brown v. Looney, 249 F.2d 61, 62 (10 Cir. 1957)), "Due process of law does not require that the trial court see to it that a defendant's attorney makes a motion for a new trial and perfects an appeal. An appeal is not necessary to due process of law." DeMaurez v. Swope, 104 F.2d 758, 759 (9 Cir. 1939). In the instant case, however, it is clear that defense counsel's omission to file a motion for new trial neither prevented the appeal nor eliminated therefrom the "point of error" Tanner states could properly have been raised therein. The merits of such alleged "point of error" will be later considered and discussed in this opinion.
During oral argument counsel for Tanner raised the question of the propriety of trial defense counsel's making the motion for directed verdict in the presence of the jury, and cited United States v. Coke, 339 F.2d 183 (2 Cir. 1964) as holding that this is "contrary to the better practice." The motion made in this manner in Coke was preceded by highly unusual circumstances which occurred during trial and were such as to cause the appellate court to believe might reasonably have caused the jury to imply from the trial judge's abrupt denial of the motion "that the defense was incompetent and a sham and that the jury should convict." No similar circumstances had here occurred and no basis for such an inference existed at the time the motion was made in this case. While we agree with the Court in Coke that the better practice is to make such motion out of the presence and hearing of the jury, we consider it very questionable whether, upon the record of this case, making this motion in open court was error, but if it was, we are convinced it was not prejudicial.
Appellant's remaining contention (as briefed and argued by counsel) is that the trial court committed error in denying his motion for directed verdict (judgment of acquittal) because of the insufficiency of the evidence to support a jury's finding that he knew the car was stolen. The applicable general rules here involved are well established. Maguire v. United States, 358 F.2d 442, at page 444 states:
No question is raised as to the sufficiency of the evidence concerning the first two elements of the offense. Conclusive evidence that the motor vehicle here involved was stolen during the night of August 28, 1966, in Grove, Oklahoma, was in effect stipulated into the record. Sufficient evidence that the defendant transported this vehicle in interstate commerce (from Oklahoma to Missouri) is in the record. Brief reference will be made to some of the evidence relevant to the remaining element.
From an examination of the record, including portions of the testimony stated in the preceding paragraph,
Pursuant to request of Tanner, and based upon his expressed dissatisfaction with the services of his court-appointed lawyer for this appeal, this Court permitted him to file a supplemental brief, pro se. This is an unusually lengthy brief, and contains several pages of authorities cited in support of his contentions. It obviously is the result of diligent effort, painstaking research, and tenacity of purpose. No purpose would be served, and this opinion would necessarily be unduly lengthened, by a detailed discussion of each of Tanner's numerous complaints which in essence charge his trial lawyer generally and specifically with incompetence, ineffectiveness and inadequate representation, and the trial court with "plain error." We have carefully examined the entire record and each complaint in the light of that record. Some of such charges or complaints are patently devoid of merit. Others are of such a nature as to warrant special consideration.
We note that the trial court, in its Order denying Tanner's written application for appointment of "new counsel" for the appeal herein, stated: "Trial counsel in this case was completely competent * * *." Tanner contends that he was "substantially prejudiced" by his trial lawyer's failure to "properly protect appellant's right of confrontation and cross-examination of Mr. Virgil Boswell." The record discloses the following facts: Trial had been set to commence on April 10, 1967. At that time Tanner and his lawyer appeared in the Chambers of the trial court, with the prosecutor, for a pretrial conference requested by the Appellant. One week previously Tanner had been arraigned, and had requested and received a continuance to try to procure some witnesses. Although his lawyer had, at the time of the arraignment, requested Tanner to give him the names and addresses of witnesses whom he wished to be subpoenaed, he had failed to do so, and had failed to see his lawyer thereafter until the morning of April 10th. At this pretrial conference, Tanner requested another one-week continuance. The trial judge considered this to be an oral motion for continuance, and granted it. At that time, it appeared that the only witness for the prosecution who was not local was Virgil Boswell, a businessman who had driven from Oklahoma to testify, and who was anxious to return home. The prosecutor stated that Boswell would testify that he was the owner of the stolen car involved in this case, and had not given permission to anyone to drive it, and inquired whether the defense would be willing to enter into a stipulation, to be used in the trial, as to Boswell's testimony, so as to eliminate the necessity of another trip. When one of defense counsel asked Tanner if such a stipulation would be agreeable with him, he answered: "I would rather have that stipulation." Thereafter the prosecutor dictated into the record what Mr. Boswell would testify to, in the presence of Tanner, counsel, and the Court. The following colloquy then took place:
At the trial the stipulated testimony was read into the record. Boswell's testimony, in substance, was that he was the owner of the vehicle involved, that it had disappeared at a time and from a place where parked, that he had given no permission for another to drive it, that he had received $2700 from his insurance company for his loss, and that he did not know either Tanner or Manis. The United States not only did not contend or attempt to prove that Tanner (or Manis) was the person who had stolen the vehicle, but all of the evidence was to the contrary. Tanner's present contention is patently frivolous.
Tanner strongly urges, as further evidence of the gross inadequacy of counsel's representation, the failure of counsel to take such action as he (Tanner) now considers would have been appropriate for his protection if called as a witness. Just what such "protective" action trial counsel could or should have taken is not clear. Tanner argues:
At the trial Tanner did not testify. The record is silent as to the reason for his decision. A reasonable inference would be that it was pursuant to advice of his counsel, and the result of his own judgment, in view of his experience. There is absolutely nothing in the record that indicates Tanner expressed to his counsel, or the Court, a desire to testify. His quoted statements in support of his present contention (as is much of the alleged factual basis of other contentions) are outside of the record and may not be considered by us. It should be emphasized that we do not have before us a proceeding in the nature of a collateral attack, the pleadings in which lay an adequate foundation for an investigation of the competency of counsel, or the conduct of the prosecutor. Hendrickson v. Overlade, supra. This is an appeal from judgment of conviction, and "We cannot, of course, concern ourselves with anything which does not appear in the record." Jackson v. United States, 131 F.2d 606, 607 (8 Cir. 1942).
Tanner also contends that he was substantially prejudiced by the instructions to the jury — that, in particular, by including therein the usual "accomplice" instruction, the trial court was guilty of "plain error." Not only was no objection made by defense counsel to this, or any other portion of the instructions, but this instruction was included in the charge at the specific request of defense trial counsel and over the objection of the prosecutor. This issue was not preserved in compliance with Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the general rule is that "The failure to properly object to the instructions before the jury retires to consider its verdict precludes raising any objection to the jury
See, also, Cave v. United States, 159 F.2d 464 (8 Cir. 1947), cert. den. 331 U.S. 846, 67 S.Ct. 1732, 91 L.Ed. 1856, rehearing den. 332 U.S. 786, 68 S.Ct. 34, 92 L.Ed. 369. In our view the record discloses no basis for application of any exception to the operation of said Rule 30. The charge adequately and correctly instructed the jury as to the applicable law.
Relying on Desmond v. United States, 345 F.2d 225 (1 Cir. 1965), Tanner contends that the United States Attorney, in his final argument to the jury, improperly commented upon his (defendant's) failure to testify. In Desmond, the government prosecutor, after referring to a certain portion of the evidence, stated: "Those are the facts, the evidence. Incidentally, may I say to you that the evidence stands unimpeached and uncontradicted." Counsel for defendant immediately objected, stating that this was a comment upon appellant's failure to testify. The objection was overruled, but, in the final charge to the jury, the Court told the jury that no inference should be drawn against appellant from his failure to take the stand. The appellate court held that the statement constituted comment upon appellant's failure to testify, that it was improper, that it was not cured by the charge, and that "correction of error should be as prompt and timely as possible * * *. The appellant promptly objected. The remedy, to be fully effective, should have been administered equally promptly."
The record herein discloses that the United States Attorney, during final argument, and while commenting about the license plate, said: "This is the plate that the defendant attached to the back of the Chrysler down in Oklahoma. There is no testimony that he didn't attach it."; and "Now, on element No. 1, the act of transporting the car between states, we have shown that the defendant got into the Chrysler in Oklahoma and then drove it to Kansas City, Missouri. Glenn Manis followed the defendant in his car. This evidence has not been disputed." The references to the failure of defendant to testify were veiled, but it is obvious that, as to each portion of the evidence referred to, the only person who was in a position to contradict it by direct evidence was Tanner. The challenged statements were improper. Barnes v. United States, 8 F.2d 832 (8 Cir. 1925).
However, factually, the facts before us are much more similar to those in Holden v. United States, 388 F.2d 240 (1 Cir. 1968), than to those in Desmond. Holden is a later case than Desmond, is by the same court, was carefully distinguished from Desmond, and a different conclusion was reached. We also believe the facts herein are clearly distinguishable from those in Barnes, supra. In the instant case no objection was made by defense counsel, and no request was made to the court for a curative instruction. There was no colloquy between counsel and the court which might have emphasized the language, and the inferential application of the language, to Tanner. The defendant was not named, and the language used
Finally, Tanner vigorously protests the alleged exclusion of certain "impeachment testimony" of defense witness Betty Kinder. His attack is two-pronged, directed at both defense counsel and the trial court. In his pro se brief appellant asserts:
followed by the names of William A. Tanner, Betty Kinder and John Tanner, and the statements the appellant contends that each of such persons related to defense counsel as having been made by Manis to such person, which statements were allegedly inconsistent with or contrary to portions of his testimony as a witness for the Government. John Tanner was not called to testify; William A. Tanner and Betty Kinder did testify as defense witnesses. Appellant concedes that the prescribed evidentiary procedure was not followed by his counsel, in that he failed to "lay a foundation" in accord with the well-established rule. In Robinson v. United States, 144 F.2d 392, at page 405 (6 Cir. 1944), aff'd. 324 U.S. 282, 65 S.Ct. 311, 89 L.Ed. 629, the court stated:
Also see: Thomas v. United States, 363 F.2d 159 (9 Cir. 1966); United States v. Bowe, 360 F.2d 1, 15 (2 Cir. 1966), cert. den. 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed. 2d 306; 58 Am.Jur., Witnesses, § 779, p. 427; and McCormick on Evidence, § 37, p. 67. Tanner also concedes that his trial counsel did not, at the time he examined Betty Kinder and after the court had ruled on certain objections, make an offer of proof, request permission to recall Manis for the purpose of laying a foundation, or take any other appropriate action to inform the court concerning the substance of the proffered testimony. Hence, Tanner argues, his counsel either was not knowledgeable of the procedural requirements or failed to utilize such knowledge if he was. He concludes, therefore, that his representation was inadequate and ineffective.
The obvious and fatal defect in this contention, and an apparent fact appellant fails to recognize, is that it is premised entirely upon the proposition that the allegations set forth in his brief are true and that counsel was apprised of the prior inconsistent statements allegedly made by Manis to the prospective witnesses, as therein set forth. However, we find no reference to any such alleged facts in the record, and beyond that record this court cannot concern itself. There is absolutely no indication in the record that defense counsel had any knowledge of the alleged inconsistent statements made by Manis. Accordingly, this argument fails. Jackson v. United States, supra.
We have carefully examined the pertinent portions of the record. Betty Kinder, on direct examination by defense counsel did testify that Manis had made certain statements to her that were inconsistent with his trial testimony. During cross-examination of Manis the following question was asked and answer given (Tr. 51):
Betty Kinder, on direct examination testified as follows (Tr. 78-79):
No objections were made to the foregoing questions, nor was there a motion to strike the answers. Mrs. Kinder further testified on direct examination as follows (Tr. 83):
To the foregoing questions and answers the Government counsel objected on the ground of hearsay and the trial court stated: "Yes; she can't repeat any conversation she had with somebody else other than the defendant." However, we note that the answers were not stricken. Part of Mrs. Kinder's testimony on direct examination concerning a trip she took to Oklahoma with her husband and Manis, after the latter's release from jail, for the purpose of obtaining bond for Tanner, is as follows (Tr. 82):
Government counsel again objected on the ground of hearsay, and the court stated: "Don't repeat the conversation,
It may be that the admonitions of the court that Mrs. Kinder refrain from repeating conversations had with persons other than the appellant resulted in defense counsel not asking specific impeachment questions. However, in the absence of any questions, the response to which would reasonably be anticipated to be inconsistent with the previous testimony of Manis, and thus support an attack on his credibility, and in the absence of an offer of proof which would inform the court of the nature of the proffered testimony, there was nothing before the court which would justify the exercise of its discretion as suggested by the appellant. We find nothing in the record to support appellant's claim of "clear error" on the part of the trial court in this regard.
In United States v. Peckham, 105 F.Supp. 775, at page 777 (D.C., D.C.1952), rev'd. on other grounds, 93 U.S.App.D.C. 136, 210 F.2d 693 (D.C.Cir. 1953), the court said:
Also see: Frisone v. United States, 270 F.2d 401 (9 Cir. 1959).
With regard to the testimony of William A. Tanner, the father of appellant, the record reveals that all questions asked of him on direct and redirect examination were answered without objection. In fact, on redirect examination, he was permitted to answer the following question (Tr. 76-77):
No objection to the question or motion to strike the answer was made by Government counsel.
Numerous additional "points of error" not specifically commented upon or herein discussed are set forth and argued in appellant's pro se brief. We have carefully considered each of them and find them to be without merit.
We are convinced that the record in this case fails to support either of appellant's contentions that the quality and character of representation he received from court-appointed counsel violated the required standard, or provides a basis for invoking the "plain error" rule. Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.
The judgment appealed from is