Norman Lee Brown v. United States, 380 F.2d 477, 10th Cir. (1967)
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Scribd Government DocsNorman Lee Brown v. United States, 380 F.2d 477, 10th Cir. (1967)
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Scribd Government Docs380 F.
2d 477
Norman Lee BROWN, Appellant,
v.
UNITED STATES of America, Appellee.
No. 9322.
United States Court of Appeals Tenth Circuit.
July 10, 1967, Rehearing Denied Aug. 31, 1967.
Harry H. Haddock, Denver, Colo., for appellant.
William E. Gandy, Asst. U.S. Atty. (Lawrence M. Henry, U.S. Atty., on
the brief), for appellee.
Before JONES, 1 SETH, and HICKEY, Circuit Judges.
PER CURIAM.
The appellant was convicted by a jury on an information charging him with the
interstate transportation of stolen motor vehicle (18 U.S.C.A. 2312), and he has
taken this appeal.
Appellant urges that the trial court committed error in refusing to grant his
motion for a judgment of acquittal on the ground that a prima facie case had not
been proved, and that the verdict was not supported by substantial evidence. He
also urges that it was error not to grant his motion for mistrial, and that the
court erred in charging the jury.
The record shows that the verdict was amply supported by substantial evidence.
Appellant was in possession of a car in Colorado on August 21, 1966, which
was shown to have been stolen in Missouri on August 18, 1966. At the trial the
car was properly identified by its owner. There was also evidence that appellant
had knowledge that the car was stolen. A person in the car at the time of
appellant's arrest in Colorado made a statement to the officers that 'they had
changed the car's license plates while driving it.
There was some variation in the registration numbers in that one of the papers
There was some variation in the registration numbers in that one of the papers
admitted in evidence omitted the initial digit in the number, but this is of no
consequence as the car was identified without question by its owner, and
identified as the one appellant was driving when arrested. This was sufficient.
Welch v. United States, 360 F.2d 164 (10th Cir.).
The trial court gave the accepted instruction relative to possession of property
recently stolen in another state. Maguire v. United States, 358 F.2d 442 (10th
Cir.).
There was no error in the trial court's denial of appellant's motion for verdict.
There was then before the court evidence that the car in question had been
stolen in Missouri, and was found in appellant's possession in Colorado. This
was sufficient.
Appellant also urges that his motion for a mistrial should have been granted.
The record shows that a witness was called by the appellant who testified that
he, not appellant, had stolen the car, and that appellant did not know it was
stolen. The testimony of the witness did not agree with statements the witness
had made to officers following his arrest, and the witness also denied making
certain statements. After he had testified for the appellant the Government
sought to impeach him by calling the officers to whom the witness had made
statements. One of these witnesses was Edward J. Rogers, who was an FBI
agent. This witness testified as to an interview he had with the witness and to a
written report of it. The agent testified that the witness was willing to explain
how the witness and the appellant were in possession of the car. The record
then shows the following answer by the agent:
'At that time he indicated that he had known Norman Lee Brown in the prison
at Terre Haute, and he stated that about August 16th of 1966 that Mr. Brown
had visited him at his home in Paris, Kentucky. I asked him how he got there,
and he said that he thought that Mr. Brown came on the bus. 'He stated that
they--.'
Appellant's attorney then objected to the officer reading from a report. The
court then stated that there was a more basic objection relating to limitation of
the scope of examination on rebuttal, and advised the attorney for the
Government to limit the questions accordingly. The attorney for appellant then
said he wanted to make a motion, and said that the questions had gone beyond
the limits for impeachment, and had resulted in prejudice to the defendant
which could not be 'expunged from the record by instructions from the Court to
the jury.' The court denied the motion and admonished the jury to disregard all
the testimony of the agent to that point, and advised the jury on the limits of
impeachment. The examination of the agent as to the interviews with the
witness then proceeded.
10
The statement by the agent that the witness had told him he knew the appellant
in 'the prison at Terre Haute' apparently was given as 'background' prior to the
description of the interview in issue, and was not responsive to the question.
The trial court properly excluded it, and admonished the jury to disregard it.
This admonition to the jury was clear and strong, but did not emphasize the
prison reference. This issue does not present the aggravated and repetitive
references which were present in Maestas v. United States, 341 F.2d 493 (10th
Cir.), nor the refusal to admonish in Sumrall v. United States, 360 F.2d 311
(10th Cir.).
11
The question whether a motion for mistrial should be granted presents a matter
within the discretion of the trial judge. He is in the best position to judge the
effect which the incompetent evidence may have had on the jury. Maestas v.
United States, supra. Generally an error in the admission of evidence can be
cured by an admonition. Holt v. United States, 94 F.2d 90 (10th Cir.); Fitts v.
United States, 328 F.2d 844 (10th Cir.); Walton v. United States, 334 F.2d 343
(10th Cir.); Beatty v. United States, 357 F.2d 19 (10th Cir.). There are however
circumstances when the testimony may create such a strong impression in the
minds of the jurors that they will be unable to disregard it. Marshall v. United
States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Lawrence v. United
States, 357 F.2d 434 (10th Cir.); Sumrall v. United States, 360 F.2d 311 (10th
Cir.). The courts '. . . have not categorically applied the rule to every erroneous
exposure of jurors to the defendant's record or reputation.' We so said in
Sumrall v. United States, supra, and also stated: 'Instead, it (Michelson v.
United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168) wisely left the whole
matter of character and record evidence to the prudent discretion of the trial
court, subject, of course, to review for abuse.' In Sumrall, supra, the trial court
refused a request to admonish the jury, while here the admonition was
accomplished in a clear and firm manner without emphasis on the problem. We
hold that this cured the defect and adequately protected appellant's rights.
12
Affirmed.
