Homan v. United States

• Decision Date: 15 July 1960
• Docket Number: No. 16252.,16252.
• Parties: Larry Howard HOMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F.2d 767 (1960)

Larry Howard HOMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16252.

United States Court of Appeals Eighth Circuit.

June 7, 1960.

Rehearing Denied July 15, 1960.

COPYRIGHT MATERIAL OMITTED

Tom Kelley, Omaha, Neb., for appellant.

Dean Wallace, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

JOHNSEN, Chief Judge.

Appellant was found guilty by a jury on each of the three counts in an indictment. One count charged him with having unlawfully seized a woman in Omaha, Nebraska, and captively transported her from Nebraska into Iowa, for the purpose of committing rape upon her — in violation of 18 U.S.C.A. § 1201 (Lindbergh Act). Another count charged him with having also done these acts for the purpose of robbing the woman — in further violation of § 1201. The last count charged independently that he had transported the woman across the Nebraska line into Iowa for the purpose of debauchery and other immoral purposes — in violation of 18 U.S.C.A. § 2421 (Mann Act).

The jury did not assess the death penalty, as it could have done on the first count, under the allegation therein that the woman had not been liberated unharmed, and the court thereafter imposed sentences of 15 years, 5 years and 2 years of imprisonment on the respective counts, with the sentences to run concurrently.

The victim of these several wrongs was a married woman 38 years of age, the wife of a "Tech Sergeant" in the United States Air Force. The couple had two children, 16 and 12 years old. The family lived together at the Offutt Air Force Base, located near Omaha. Appellant was a 19-year youth of the black jacket and levi apparel-fashion, unacquainted with his victim, and having a prior felony conviction.

The evidence is not weak but of most impressive strength in its proof of the occurrence of the unlawful seizure, captive transportation and perpetration of the rape and robbery as claimed by the prosecutrix. Indeed, it does not seem possible that on the testimony and circumstances in the record any jury responsibly could or would do other than return a verdict of guilty. The proof of guilt did not rest alone upon the testimony of the prosecutrix, but there were numerous elements, direct as well as indirect, supportive of the crucial things to which she testified.

Of direct general corroboration was the testimony of two agents of the Federal Bureau of Investigation as to the admissions which appellant had made after his arrest. These admissions accorded fully with the woman's story of what had occurred — that appellant had suddenly appeared alongside her car in a parking lot, as she was entering it in the dusk, and with knife in hand had made her slide over in the seat and allow him to take control of the car; that under threat of the knife, held pointed at her from the steering wheel, he had forced her to remain in the car as he drove away from the lot, headed toward the Missouri River Bridge and crossed into Iowa; and that, once off the main highway in Iowa, he had tied her with a rope, had subsequently ordered her to disrobe on a side road, and had then in caution driven to a completely isolated spot, where he had made her submit to sexual relations with him.

The two agents further testified that appellant had both a rope and a knife on his person at the time he was arrested; that he admitted that the rope was the one which he had used to tie the woman; but that the knife which he had was not the one which he employed on the occasion, the latter having been tossed by him into the Missouri river and the one then possessed by him having been purchased the following day.

Corroboration of the fact that the woman had been tied existed also from the testimony of her husband and a doctor at the Air Base Hospital as to the red marks which were present on her wrists. The further testimony of these witnesses as to her indication of fright and nervous state and to her need for sedation was capable too of adding corroboration on the nature of the experience which she had undergone. Similarly, on other circumstantial aspects, her testimony that, before appellant finally turned back the car to her, he had undertaken to wipe off all his fingerprints in it could be found to have corroboration in the testimony of the F.B.I. agents that the inside of the car, when checked by them, was without any prints, except some on the steering wheel which the woman had used in driving the car home. And, on the question of whether appellant had robbed her of her billfolld, or whether she had charitably made a gift of it to him, as he claimed, there was testimony that, after he had driven the woman back to Omaha and left the car, he had taken the billfold to a tavern in a neighborhood which he frequented and concealed it behind a loose section in the ceiling of a back room.

Appellant makes no claim here that whatever oral statements he made to the F.B.I. agents at the time of and immediately following his arrest were in any way involuntary or the product otherwise of any advantage taken of him. His testimony simply denied that he had ever said the things which the agents testified he admitted to them. His story on the trial as to what had occurred was that while it was true he had driven the woman's car over into Iowa and had had intercourse with her, this had been because of both willingness and inducement on her part.

He said that the incident began by her making a remark to him as she passed him about a half-block away from the parking lot, where he was loitering, and that he had accordingly walked with her to the car. He admitted that she had told him, as he was driving the car, that she was a married woman and that she had telephoned her husband just before she went to the parking lot, informing him that she was starting for home. Her testimony had been that she had sought by means of this and other statements as to her family to dissuade him from his obvious objective. Appellant said that the family information, including the ages of her children and her home relationships, was given to indicate her willingness and desire, but at the same time to urge upon him that they had to hurry, since her husband was waiting for her at home. In fact, he sought to depict himself to the jury as having been possessed of a moral reluctance in the situation, after he learned that she was a married woman, modestly testifying that he had, in the midst of his sexual performance, abruptly halted and declared, "I don't think it is right. You had better put your skirt back on". And as to his possession of the billfold, with its $18 in cash, he similarly testified, "Before I had gotten out of the car * * I did accept the money from her, which was wrong I thought".

Appellant contended also, of course, that there were elements which lent credence to his version of the events, such as the fact that the woman admittedly had not screamed in the parking lot; that she had not attempted to attract the attention of pedestrians in the street or of passing cars as he drove; and that she had not at any time undertaken to escape by opening the door and jumping out of the car.

She had testified that the windows of the car were at all times closed; that she was in fear of the knife blade which he kept pointed at her and the threat which he made that he would use it if she tried to attract attention or to escape; and that she further was impelled to restraint because of appellant's extension of his threat, after she had revealed that she had children, by a declaration that he would "take care" of her children also, or see that some of his friends did so, if anything happened to him.

It is not necessary to set out further details of the evidence. We think the record is of such marked strength in its proof of appellant's guilt that the errors relied on for reversal and the question of prejudice therefrom must be realistically considered in relation to this convincing aspect. The situation is one where it would seem especially appropriate not to lose sight of the admonition of Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded".

Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibility in a strong case, and thus not entitle the defendant to a reversal of his conviction. The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect. Blackwell v. United States, 8 Cir., 244 F.2d 423, 431. "If, however, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress" (presumably as a question of substantive or procedural due process). Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557.

The first error complained of here is that the trial court permitted a question to be asked on cross-examination of one of appellant's witnesses as to previous misconduct on his part not representing a felony conviction.

Appellant, in his endeavor to induce the jury to believe that he did not have a knife at the time of the events involved, testified that he had been carrying a kitchen paring-knife, belonging to his mother, up until mid-afternoon of that day, when he had had one of his friends drive him home in order to make return of the knife before his mother discovered its absence. He then had the friend take the witness stand...